HPD to Enforce Stricter Definition of Lead-Based Paint

HPD recently issued a release that highlighted new standards related to lead-based paint hazards. On Dec. 1, the standard to define paint as lead-based was cut in half. This new standard, the strictest in the nation, is expected to prompt an increase in lead violations issued by HPD inspectors. HPD expects inspectors to identify more buildings that may pose a risk of lead poisoning, so that property owners can take proactive measures to protect children.

“This lowered definition for lead-based paint supports HPD’s mission of making homes safer and healthier for children and will increase the enforcement and scope of Local Law 1 in more homes, further advancing the goals set forth in LeadFreeNYC to eliminate the risk of childhood lead exposure,” said HPD Commissioner Louise Carroll.

Once paint is defined as lead-based after testing, or presumed to be lead-based (if not tested), owners must engage in the proactive steps and safe work practices under the NYC Childhood Lead Poisoning Prevention Act, also known as Local Law 1 of 2004. This law outlines the responsibilities of rental property owners in the prevention of and response to lead-based paint hazards in rental housing.

The Amended Definition

The definition of lead-based paint was amended in December to be paint or other similar surface coating material containing 0.5 milligrams per square centimeter (mg/cm²) of lead or greater as determined by laboratory analysis or by an instrument verified to be able to test at the lower action level of 0.5 mg/cm². This replaces the previous definition of 1.0 mg/cm² of lead or greater.

According to HPD, 15 percent of additional surfaces are projected to now test positive for lead during HPD inspections, triggering an owner’s obligation to use certified professionals to correct the condition using safe work practice methodologies that require the work areas to be free from any lead dust at the conclusion of the work.

The change in the definition of lead-based paint will affect multiple processes related to compliance with Local Law 1 that impact both owners and tenants, including:

• More painted surfaces with a positive lead test at the lower level, resulting in the issuance of more HPD violations for lead-based paint hazards;
• More friction window and door surfaces that will need to be abated by the property owner when a dwelling unit turns over;
• Compliance with the requirement that property owners complete testing in all units subject to Local Law 1 by 2025;
• Lead-based paint exemptions already issued by HPD will be revoked upon turnover of the unit; and
• New applications for lead-based paint Lead Free or Lead Safe exemptions will be based on the lower definition of lead-based paint.

HPD Inspection Process

Each year, owners are required to send an annual notice to tenants that asks whether a child under 6 resides (or routinely spends 10 or more hours a week) in the unit. If a tenant responds affirmatively to the annual notice, or anytime a tenant in a unit where a child under 6 resides reports a peeling paint condition, a landlord must repair the condition properly using certified contractors and safe work practices. If the landlord doesn’t fix the peeling paint or if the tenant finds the work isn’t being completed safely (creating dust that isn’t contained), the tenant will file a complaint online or call 311.

A tenant’s 311 complaint will trigger an inspection if a child under 6 is indicated to reside in the unit and the building was built before 1960. The inspection consists of an HPD Housing Inspector creating a sketch of the dwelling to designate all rooms, checking all painted surfaces for the presence of peeling or deteriorated paint, and gathering any additional information regarding the child(ren).

The inspector uses an x-ray fluorescence (XRF) analyzer machine to test for the lead in any peeling paint that’s observed. If there’s lead-based paint, a violation will be issued. Specifically, HPD will conduct inspections using the HUD-approved Viken Detection Model Pb200i reprogrammed to test at the 0.5 mg/cm² action level. Violations will be issued using the new definition of lead-based paint based on the readings from this device.

If the XRF reading is 0.5 mg/cm², HPD will issue a violation for a lead-based paint hazard but allow the owner to contest the violation by providing paint chip analysis results that would determine the paint to be negative. An owner can’t provide XRF testing to contest the violation issued at 0.5 mg/cm². And a result at or above 0.6 mg/cm² will be positive. As such, owners won’t be able to contest a violation issued at or above 0.6 mg/cm² with a paint chip analysis or additional XRF testing.

If lead-based paint is found on these peeling paint surfaces and the tenant states that she hasn’t already had her child’s blood lead level tested or spoken with DOHMH about having a blood test, the Housing Inspectors will strongly encourage the tenant to allow them to call DOHMH at the conclusion of the inspection so the tenant can get more information about how to protect the child(ren) and/or obtain a referral for blood testing for them. A healthcare provider or the DOHMH can recommend the next steps if it’s determined that a child has an elevated blood lead level.

If a tenant doesn’t indicate there’s a child under age 6 living in the unit when the 311 complaint is filed, but the Housing Inspector confirms there is at the time of the inspection, the inspector will conduct a visual lead-based paint survey without the XRF instrument. If peeling paint is found, another inspector may return to the dwelling within the following two weeks to conduct a second inspection that includes the XRF instrument to determine if the paint meets the definition of lead-based paint. If this follow-up inspection can’t be performed, the violation will be issued based on the previous visual survey as a presumed lead-based paint hazard.

Expanding Audits and Enforcement

HPD also announced that it’s conducting significantly more audits of the records that property owners are required to maintain related to their mandated lead-based paint activities. Full building inspections are attempted in all audited properties.

In addition, HPD has stepped up enforcement, initiating litigation and partnering with other law enforcement entities such as the NY Attorney General and the NYC Law Department to seek penalties and the correction of violations against large landlords who haven’t complied with lead-based paint regulations.

According to HPD, recent litigation has resulted in orders and civil penalties in excess of $200,000 against two large owners. And recent settlements through the Attorney’s General Office related to lead-based paint resulted in orders and penalties in excess of $800,000 against two large building portfolios in New York City.