December 30, 2021
New standards, the strictest in the nation, expected to prompt an increase in lead violations issued by HPD inspectors
NEW YORK – As part of the city’s continued work towards its LeadFreeNYC commitment, the New York City Department of Housing Preservation and Development (HPD) is working to protect even more children from the dangers of lead-based paint. On December 1, the standard to define paint as lead-based was cut in half. By enforcing this new standard – the strictest in the nation, HPD inspectors will help identify more buildings that may pose a risk of lead poisoning, so that property owners can take proactive action to protect children. A signature initiative of the de Blasio Administration announced in 2019, LeadFreeNYC is an aggressive interagency plan with a mission to end childhood lead exposure.
“HPD’s work has protected thousands of children from lead-based paint hazards since the implementation of Local Law 1,” said HPD Commissioner Louise Carroll. “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.”
Once paint is defined as lead-based after testing or presumed to be lead-based (if not tested), rental property owners must engage in the proactive actions and safe work practices under the New York City 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. Local Law 66, passed by the City Council in 2019, provided for an amendment to Local Law 1 that called for the lowering of the definition of lead-based paint in New York City for dwellings when the federal government approved a device able to test at the lower level.
The definition of lead-based paint was amended earlier this month 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.
15% of additional surfaces are projected to now test positive for lead during HPD’s inspections, triggering an owner to have 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:
The amendment to the lead-based paint definition is just one of the changes related to lead-based paint local law and enforcement that expands the protections for children under six.
Expanding how inspections are performed
Over the past two years, HPD has expanded lead-based paint inspections to include households in one- and two-family rental properties and to include dwellings where a child under six routinely spends ten or more hours a week, not only dwellings where a child lives. HPD is issuing violations that can be issued to owners if it is determined they have not performed the activities required at the turnover of a dwelling, which is when the dwelling changes tenants, to completely remove lead paint from door and window friction surface. HPD is also enforcing more stringent requirements related to the definition of lead dust clearance, phasing in since 2019 lower and lower levels of acceptable lead in dust required at clearance after work is conducted on lead-based paint surfaces. Additionally, on inspection of a dwelling, when HPD confirms that there is a lead-based paint hazard, HPD puts tenants directly in touch with the Department of Health and Mental Hygiene (DOHMH) for guidance and resources.
“New York City continues to be at the national forefront in fighting lead poisoning,” said Health Commissioner Dr. Dave A. Chokshi. “The new lead paint standard will help protect thousands more NYC children from lead exposure.”
HPD is additionally 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, offering proactive protections to thousands of additional homes each year.
Expanding enforcement and partners
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 have not been in compliance with City lead-based paint regulations. Recent litigation by HPD 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 very large building portfolios in the City.
Expanding owner outreach and resources
While expanding protections and cracking down on landlords who are not complying with the law, HPD has simultaneously committed resources to improving communication with property owners by designing sample recordkeeping forms, communicating about changes and reminders regarding lead-based paint several times during each year, and creating multiple webinars about how to comply with all of the lead-based paint responsibilities. In partnership with LeadFreeNYC, HPD launched the “Get Ahead of Lead” campaign in November 2019 for multiple dwelling properties, continued it in early 2020 with a particular focus on one- and two-family properties and is poised for another campaign which includes mail, email, phone, digital and bus stop signage outreach again through the spring of 2022.
Background on owner responsibilities and the HPD inspection process
Each year, landlords of all residential properties are required to send an annual notice to tenants which inquires whether a child under six resides (or routinely spends 10 or more hours a week) in the dwelling. As a result of either the annual notice landlords must distribute to tenants or anytime the tenant in a dwelling where a child under six resides reports a peeling paint condition, a landlord is responsible to properly repair the condition using certified contractors and safe work practices. If the landlord does not fix the peeling paint or if the tenant finds the work is not being completed safely (creating dust that is not contained), the tenant should file a complaint online or call 311.
In response to a tenant’s 311 complaint where a child under six is indicated to reside in the dwelling and the building was built prior to 1960, a Lead-Based Paint Inspection Program inspection is triggered. 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 the appropriate instrument to actually test for the lead in any peeling paint that they observe. If there is lead-based paint, a violation will be issued.
If lead-based paint is found on these peeling paint surfaces and the tenant states that they have not already had their child’s blood lead level tested or spoken with DOHMH about having a blood test, the Housing Inspector will strongly encourage the tenant to allow them to call DOHMH at the conclusion of the inspection so the tenant can obtain more information about how to protect their child(ren) and/or obtain a referral for blood testing for them. A health care provider or the DOHMH can recommend the next steps if it is determined that a child has an elevated blood lead level.
If a tenant does not indicate there is a child under the age of six residing in the dwelling when the 311 complaint is filed, but the Housing Inspector confirms there is at the time of the inspection, they will conduct a visual lead-based paint survey without the XRF instrument, which detects lead levels. If peeling paint is found, another Housing 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 cannot be performed, the violation will be issued based on the previous visual survey as a presumed lead-based paint hazard.
HPD then takes action to attempt to address the lead-based paint violation/hazard if an owner fails to do so. In fiscal year 2021, HPD spent $1.6 million on lead-based paint remediation activities. For a full explanation of all expected changes in relation to Local Law 66, please review the final rule and Lead-Based Paint Threshold Change FAQ. For more information on tenant responsibilities and owner obligations under Local Law 1, please visit nyc.gov/lead-based-paint.
The New York City Department of Housing Preservation and Development (HPD) is the nation's largest municipal housing preservation and development agency. Its mission is to promote quality housing and diverse, thriving neighborhoods for New Yorkers through loan and development programs for new affordable housing, preservation of the affordability of the existing housing stock, enforcement of housing quality standards, and educational programs for tenants and building owners. HPD is tasked advancing the goals of the City's housing plan – a critical pillar of Your Home NYC, Mayor de Blasio's comprehensive approach to helping New Yorkers get, afford, and keep housing in these challenging times. For full details visit nyc.gov/hpd and for regular updates on HPD news and services, connect with us on Facebook, Twitter, and Instagram @NYCHousing.