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Lead Poisoning and the Law

Lead Poisoning and the Law. New York Court of Appeals (NY’s highest court): “Childhood lead paint poisoning may be the most significant environmental disease in New York City.’” Juarez v. Wavecrest Management , (1996)

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Lead Poisoning and the Law

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  1. Lead Poisoning and the Law • New York Court of Appeals (NY’s highest court): • “Childhood lead paint poisoning may be the most significant environmental disease in New York City.’” Juarez v. Wavecrest Management, (1996) • “The dangers of exposure to lead-based paint, especially to young children, are well documented and pose a serious public health problem,” NYCCELP v. Vallone , (2003)

  2. Federal laws – Title X

  3. Table 3a – Part 35 regs

  4. Table 3b – Part 35 regs

  5. Table 3c – Part 35 regs

  6. Federal Lead Disclosure Law • Landlord must • Give Tenant copy of EPA pamphlet • Disclose known presence on lead based paint hazards • Provide Tenant with available records or reports on lead hazards • Include in lease a warning statement • Lease must contain acknowledgement of compliance • Landlord and Real Estate Broker both responsible for compliance

  7. EPA Pamphlet

  8. Lead Warning Statement • “Housing built before 1978 may contain lead-based paint. Lead from paint, paint chips, and dust can pose health hazards if not managed properly. Lead exposure is especially harmful to young children and pregnant women. Before renting pre-1978 housing, lessors must disclose the presence of lead-based paint and/or lead-based paint hazards in the dwelling. Lessees must also receive a federally approved pamphlet on lead poisoning prevention”

  9. Lead Disclosure form

  10. New York State Lead Laws 1 • No Primary Prevention, other than 1970 ban on Pb paint • Health Comm. has discretion to order abatement • Even if child lead poisoned, discretionary abatement • 1972 Amendments – focus on screening

  11. New York State Lead Laws -2 1970 Law • Ban on Lead • Commission and local agencies have power (but not mandate) to order designate dwellings with “conditions conducive to lead poisoning” as high risk (§ 1370(2)) and power (but not mandate) to order abatement (§ 1373(1))

  12. New York State Lead Laws -3 1992 Laws • Mandatory Screening at Ages 1 and 2 • Hospitals, HMOS, Clinics, etc. must make sure patients screened (PHL §1370-c) • Mandatory Reporting of EBLs (≥10dL) (§ 1370-e) • w/in 5 days (§67-3.3) • w/in 24 hours if ≥ 45 ug/dL • State registry (§ 1370-a) • Day Care, Schools require certificate of screening if child < 6 (§ 1370-d)

  13. SCREENING FOR LEAD BY BLOOD TESTING • ALL CHILDREN AT AGES 1 & 2 YEARS • At Each Well-Child Visit if at risk (Pelling paint, Pica, Sibling with EBL, Symptons) BLL> 10 μg/dL NEEDS follow-up: >44 μg/dL IMMEDIATELY 20-45 μg/dL WITHIN 1 WK-MONTH 10-19 μg/dL WITHIN 3 MONTHS

  14. New York State Lead Laws -3 • Referral of children with EBL ≥ 20 ug/dL to local DoH for Environmental Management (§67-1.2) • Local DoH Must investigate, (§67-2.3) • May order abatement. (§67-2.6) • Safe Work practices (§67-2.7) • Advisory Council (§1370-b)

  15. Major NYC City Lead Laws - 1

  16. Major NYC City Lead Laws - 2

  17. Major NYC City Lead Laws - 3

  18. Major NYC City Lead Laws - 4

  19. Major NYC City Lead Laws - 5

  20. Major NYC City Lead Laws - 6

  21. LOCAL LAW 1 OF 2004(went into effect Aug 2, 2004)

  22. Local Law 1 of 2004 - Overview • Definition of Lead-based paint hazard • Violation in a Dwelling Unit • Lead Paint Measurement • Owner’s Investigation for Children in premises • Owners Responsibility to Remediate • Landlord Inspection for Hazards • HPD Inspections in response to Pb paint complaint

  23. LL 1 of 2004 – Overview (continued) • HPD Inspections for any violation in pre-1960 building • HPD enforcement • Owner’s Duties Upon Turnover • Work Practices • Dust Clearance Tests • Applicability to Condos and Coops • Response to a lead poisoned child

  24. Lead Paint defined • 1.0 mg/cm2 by X-Ray Fluorescence testing (“XRF”), or (if cannot be measured by XRF) • 0.5% by weight • Rebuttable presumption in pre-1960 building if peeling

  25. Lead-based paint hazard defined • Multiple dwelling (i.e., 3 or more units), and • Child of applicable age (under 7) • Any condition causing exposure to lead paint or lead dust through: 1. peeling paint, 2. lead on chewable surfaces, 3. deteriorated subsurfaces, 4. friction surfaces, and 5. impact surfaces

  26. Violation in a Dwelling Unit • Lead paint that is peeling or on a deteriorated subsurface • Dwelling unit in a multiple dwelling • Child under 7 resides in unit • Classified as a Class C immediately hazardous violation • Note that HPD is not required to inspect post 1960 buildings

  27. Owner’s Investigation for Children in premises – Part 1 • Must inquire if child under 7 upon initial signing and renewal of lease. • Must also send yearly notice to tenant inquiring if child under 7 resides there (Jan. 1 to Jan. 16 each year. • If tenant doesn’t respond by Feb. 15 to annual notice, landlord must make reasonable attempts to investigate whether a child under 7 lives there (Feb. 16 – March 1), If no response, Landlord must notify DHMH.

  28. Owner’s Investigation for Children in premises – Part 2 • If tenant notifies the landlord that no child under 7 lives in the premises, landlord has no obligation to inspect for an correct lead hazards, and cannot be cited for lead violations. • If landlord does not otherwise have knowledge of a child under 7 and the tenant fails to notify the landlord, presumption will not apply in a personal injury action. • If landlord learns of presence of child, must give tenant pamphlet on lead law developed by DMHM

  29. Initial Lease Form

  30. Initial Lease form - Español

  31. Renewal Lease form

  32. DHMH-HPD pamphlet

  33. Owners Responsible to Remediate (whether or not cited by HPD): Where, • Lead hazards are present • Multiple dwelling unit or common area • Child under 7 • Pre-1960 building (or pre-1978 if presence of lead paint known) • Note: Landlord must also prevent the reasonably foreseeable occurrence of a lead -based paint hazard.

  34. Landlord Inspection for Pb Hazards – Pt 1 • Applicability • Pre-1960 building, or pre-78 if known lead paint. • Multiple dwelling, and • Tenant has returned inquiry notice for child under 7, or landlord knows of a child under 7 through an investigation or other means.

  35. Landlord inspections for Pb hazards – Pt 2 • When? • Once a year, and also • More often if necessary, such as • If in the exercise of reasonable care, an owner knows or should know of a condition that’s reasonably foreseeable to cause a lead paint hazard. • When tenant complains of lead hazard • When city issues an order to correct a lead hazard.

  36. Landlord inspection for Pb hazards – Pt 3 • How: • Investigation in dwelling unit and common areas for: • Peeling paint • Chewable surfaces • Deteriorated subsurfaces, • Friction surfaces • Impact surfaces

  37. HPD Inspections responding to a lead paint complaint • Applies to: • Pre-1960 building • Multiple dwelling • Child under 7 • Tenant has complained • When- Within 10 days of complaint • How: • XRF inspection of condition (if no XRF available, can rely on presumption) HPD must leave a pamphlet on lead hazards, and phone numbers for lead screening.

  38. HPD Inspections for any violation in a pre-1960 building • Must ask occupant if a child < 7 lives unit • If a child <7 lives in premises, inspector must do room by room inspection of lead paint hazards and log whether paint is peeling or intact. • Must look for: • Peeling paint • Underlying defects Note: only on surfaces that aren’t obstructed by furniture or furnishings. If presumed violation is found, HPD must conduct an XRF inspection within 10 days

  39. HPD Enforcement of Pb Violations – Part 1 • Violations issued 10 days after inspection • HPD must send notice to tenant as well • Landlord has 21 days to repair using EPA certified firm (can be extended an extra 42 days, but tenant must be notified of extension and reasons for it) • Landlord must certify correction by mail within 5 days after the date set for completion • Sworn statement that violation corrected in compliance with safe work practice regulations • If contractor or agent did work, they must also give sworn statement • Must include dust wipe test results

  40. HPD Enforcement of Pb Violations – Part 2 • Copy of certification must be sent to tenant within 12 days of receipt of certification. • If landlord fails to certify correction, it is presumed that condition is uncorrected, and HPD must step in and correct within 45 days.

  41. HPD Enforcement of Pb Violations – Part 3 • Landlord is subject to a civil penalty of $250 a day, up to $10,000 maximum. • Defenses to the civil penalty: • Condition didn’t exist at the time the violation was placed • Landlord faced serious technical difficulties, was unable to obtain the necessary materials, funds or labor or was unable to gain access • Landlord was unable to obtain a license or permit necessary to perform the repairs • Condition was caused by negligence, neglect, or abuse not in the employ or subject to the direction of the owner (predecessor’s actions not exempted)

  42. HPD Enforcement of Pb Violations – Part 4 • If landlord does certify correction • HPD must reinspect within 14 days 1. If certification false, HPD must step in and correct within 45 days of day of inspection. 2. For false certifications, owner subject to civil penalties between $1000 to $3000 plus may be charged with a misdemeanor.

  43. HPD Flow Chart

  44. Owner’s Duty Upon Turnover • Applies in a pre-1960 multiple or non multiple dwelling not occupied by owner or owner’s family. • Must correct underlying defects • Must perform dust wipe tests at completion • Make bare floors, window sills and window wells smooth enough so that dust can be removed by normal cleaning • Remove or permanently cover lead paint on all friction surfaces on doors and door frames, and windows • Must replace window channels or slides on all friction surfaces on windows if lead paint present • Failure to do so is a Class C violation

  45. Work Practices - Overview • When there is no notice of violations, but disturbing lead paint or paint of unknown content. • When notice of violation issued • Requirements don’t apply when work disturbs surfaces < 2 ft² of peeling paint per room or 10% of the total surface area of peeling paint on a component with a small surface area (i.e. window sill or door frame • Dry scraping and dry sanding prohibited

  46. Applicable Work Practices - No cited Pb violation (Pt1) • Applies in pre-1960 building (or pre-1978 if lead paint is known), AND • Child under 7 resides in dwelling unit • Includes common areas • Must follow safe work practices in HPD rules (28 R.C.N.Y. § 11-06 ) • Dust clearance tests must be performed at completion

  47. Applicable Work Practices - No cited Pb violation (Pt2) • Landlord must provide temporary relocation when the work cannot be performed safely. • Not required if work can be done safely with occupants in residence, proper daily clean-up followed, safe access to sleeping areas, bathroom and kitchen, and entry/egress pathways, and no other safety hazards created (such as exposed wires or holes in floor) • Must use workers trained in lead safe work practices given by or on behalf of HPD or EPA, or HUD • Must use EPA certified firm for work disturbing more than 100 square feet of paint or removal of 2 or more windows with lead paint, must also notify DHMH w/in 10 days prior.

  48. Applicable Work Practices - Cited Pb violation • Same requirements, plus must use EPA certified firm to perform work.

  49. Specifics of Work Practices – Pt 1 Prohibited Practices (§ 11-06(e)) • Open flame burning or torching • Heat guns > 1,100⁰ F • Power sanding, grinding, abrasive blasting (w/o HEPA vacuum attached) • Dry scraping or dry sanding • Using volitile strippers in poorly ventilated area or hazardous chemicals Permitted Practices (§ 11-06(ed) • Wet scraping, sanding, or planing • Approved chemical strippers • Encapsulation, enclosure, or component removal and replacement

  50. Specifics of Work Practices – Pt 2 Filing with DHMH for Jobs >100 ft² or ≧ 2 windows • At least 10 days before work starts, owner must file notice with DHMH, signed by owner or firm doing work (less time if emergency) (fax to 212-676-6188) • Name, address, and phone of owner of premises • Address of premises and location of work • Name, address and phone of firm performing work • Expected date of completion, work hours • Description of work and identification of surfaces • DHMH to be notified within 24 hours of changes. • Also, must be posted at site 24 hours before work starts at entrances to dwelling and to dwelling unit

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