HPD Proposes New Rules for Challenging Lead Violations from XRF Tests

The deadline for X-ray fluorescence (XRF) testing for lead paint as required under Local Law 31, amended by Local Law 111 of 2023, has passed. With lead testing complete, the Department of Housing Preservations and Development’s attention is shifting to enforcement and compliance.

In anticipation of owners needing to challenge XRF-based violations, HPD is proposing new rules to clarify how owners can contest violations triggered by XRF results. The proposed changes would establish a formal process for submitting alternative lab-based evidence to dispute lead-based paint violations, particularly in situations where the accuracy of an XRF reading may be in question.

XRF Testing Mandate

Under Local Law 31 of 2020, property owners must have every rental unit in buildings built before 1960 inspected for lead-based paint using XRF technology. The rule also applies to certain post-1960 buildings with known lead hazards, and to one- and two-family homes not occupied by the owner. The requirement includes all non-owner-occupied units, even those that are vacant, sublet, or under repair.

The purpose of this law is to close the gap between assumption and evidence. With XRF testing, the long-standing presumption of lead turns into verifiable and documented fact. XRF analyzers can detect lead without damaging painted surfaces, and inspections must be conducted by EPA-certified professionals who are independent of both the owner and any contractors who may perform remediation.

In addition to individual units, Local Law 111 expanded the testing mandate to cover common areas such as stairwells, lobbies, hallways, and shared spaces in rental buildings. Stair components like treads, risers, handrails, and balusters must be tested on every floor. Upper corridors may be tested via a sampling plan developed by a certified inspector.

Once testing is complete, the real administrative work begins as owners must retain the full inspection record for 10 years. This includes the XRF report, the inspector’s EPA certification, calibration logs, and a detailed surface-by-surface breakdown of tested areas. Also, any correspondence documenting access attempts must also be preserved. If paint-chip testing was conducted to confirm or clarify XRF results, those lab results must be kept on file as well.

If no lead was found above the 0.5 mg/cm² threshold, owners may be eligible for a Lead-Free Exemption from HPD. This status relieves them of future annual lead notices and inspections for that unit. However, tests performed under the previous 1.0 mg/cm² threshold, while still valid for compliance, don’t qualify for the exemption, making re-testing at the lower standard worthwhile for many.

The testing phase of the law may be complete, but enforcement is just beginning. As violations are issued, and as HPD proposes a formal process for challenging certain XRF findings, the importance of strong, clear documentation cannot be overstated. Owners who approached the testing process methodically will now benefit from the groundwork they’ve laid.

What Happens When XRF Detects Lead?

A positive result from an XRF test doesn’t automatically trigger a violation. If the lead-containing surface is intact and no child under age 6 resides in the unit or building, owners can choose to monitor the condition over time. However, peeling paint on a lead-positive surface, especially when a young child is present, is considered an immediate hazard and must be addressed without delay. Turnover rules also require abatement of doors and windows in vacated units, regardless of whether a child ever lived there.

In cases where HPD issues a Class C violation, owners are required to correct the condition using EPA-certified abatement firms and pass clearance testing conducted by a separate, independent inspector.

Proposed Rules for Challenging XRF-Based Violations

HPD’s newly proposed rules aim to give owners a formal avenue to contest XRF-based violations, particularly when they believe a surface has been misclassified. The challenge process would apply to violations issued under Housing Maintenance Code §§27-2056.6 or 27-2056.6.1, which are often triggered by XRF readings above the 0.5 mg/cm² threshold.

If a violation arises from an XRF reading on a metal or ceramic substrate, a situation where XRF can sometimes produce false positives, the rules allow owners to submit alternative evidence in the form of a laboratory-analyzed paint chip sample from the same surface.

This sample must be collected and documented by a certified lead-based paint inspector or risk assessor, who must provide a sworn statement, proof of certification, and a detailed inspection report. The lab must be state-certified, and results must be presented in mg/cm² or, in specific circumstances, by percentage weight.

Importantly, challenges must be filed no later than the “correct by” date listed on the original violation, which may precede the formal certification deadline. Submissions can be made via paper or through a digital portal that HPD plans to launch later this year.

A public hearing on the proposed rule will be held virtually on Sept. 9, 2025, just one month after the XRF testing deadline. Owners, managers, and other stakeholders are encouraged to attend or submit written comments by that date. Written feedback can be submitted online at rules.cityofnewyork.us, by email to rules@hpd.nyc.gov, by fax to (212) 863-8763, or by mailing a letter to Associate Commissioner Josh Cucchiaro at HPD, Room 5-Z7, 100 Gold Street, New York, NY 10038. Those who prefer to speak at the virtual public hearing on Sept. 9 can sign up in advance by calling (212) 863-8340 or emailing wallaca@hpd.nyc.gov no later than 5 p.m. on Sept. 5. Comments will be limited to three minutes, and the hearing will be for testimony only. If adopted, the new rule would go into effect on Dec. 1, 2025.