Lead Paint Law in New York City

[consigliere]

Jay Romano's article, The Law on Lead Paint In the City, in the Real Estate section of the April 7th online edition of The New York Times, gives an excellent summary of the legal issues and political factors involved:
 
 
Earlier last month, a Manhattan appeals court reversed a lower-court ruling that invalidated a 1999 law that replaced a 1982 law that established rules for the identification and remediation of lead-based paint in certain dwellings in New York City. Parties on the losing side say they will likely appeal.

Confused?

There's more.

On the day before the appeals court decision was published, members of the New York City Council introduced legislation that would replace the 1999 law with yet another law. The bill, which was sponsored by most council members, would make the 1982 law, the 1999 law, the lower court's decision, the appeals court decision and any appeal that might be taken from that decision moot.

What, then, is the current New York City law governing lead-based paint?

"Local Law 38 of 1999," said George Gutwirth, an assistant corporation counsel for New York City.

The State Supreme Court had ruled that in adopting the law, the city had failed to comply with the State Environmental Quality Review Act and the City Environmental Quality Review law, both of which require the Council to contemplate the environmental impact of pending legislation. And while the Supreme Court's ruling would have resulted in Local Law 1 of 1982 being reinstated as the current lead law, Mr. Gutwirth said, lawyers for the city obtained a stay of the trial court's ruling pending appeal.

In its March 26 decision, the appeals court unanimously ruled, however, that the city did comply with the applicable environmental laws, whereupon it reversed the lower court decision, thereby clearly establishing Local Law 38 as the current law regulating lead-based paint in New York City.

But that, it seems, will hardly be the last word on the subject.

"This is certainly not a closed issue at this point," said Matthew Chachere, a staff lawyer for the Northern Manhattan Improvement Corporation, a not-for-profit legal services agency in Manhattan. "It's extremely important to understand that the Appellate Division was not ruling on the merits of Local Law 38, but on the process by which the City Council made its decision to adopt it."

Mr. Chachere said that if an appeal was taken, and it was successful, the lead law in New York City would revert to Local Law 1 of 1982.

But for now, at least, the law governing lead-based paint in the city is Local Law 38 of 1999.

But what does that mean?

Dan Margulies, executive director of the Community Housing Improvement Program, an advocacy group for landlords of mid-size buildings in New York, explained that Local Law 38 of 1999, which replaced Local Law 1 of 1982, prohibited the dry scraping or sanding of lead-based paint, including "paint of unknown lead content," in any dwelling unit in the city. Even owners of single-family homes, Mr. Margulies said, are not permitted to dry-scrape or sand lead-based paint in their homes. (Property owners who want to scrape or sand paint surfaces must instead employ a "wet-sand" or "wet-scrape" method if the surface is known to contain lead-based paint or if the owner is unsure that it does.)

Local Law 38 also establishes requirements for owners of buildings with three or more apartments that were built before Jan. 1, 1960. For example, Mr. Margulies said, when an apartment in such a building becomes vacant, if the owner cannot prove that there is no lead-based paint in the building, she must inspect the apartment and repair any peeling paint using a wet-scraping process.

Moreover, he said, when performing lead remediation work in an apartment, workers must seal off the work area until all work is completed and all surfaces must then be vacuumed with a HEPA vacuum — one with a high-efficiency filter — or washed with detergent prior to repainting.

In addition, Mr. Margulies said, property owners in such buildings must make sure that all windows are properly hung, that no painted surfaces bind and that bare floors are smooth enough to allow accumulated dust to be removed using normal cleaning methods.

Finally, Mr. Margulies said, the owners of all pre-1960 buildings are required to send out annual inquiries to all tenants between Jan. 1 and Jan. 16 asking whether any children under 6 live in the apartment. If the answer is yes, or if the owner knows that there are children younger than 6 living in the apartment, the owner is required to inspect the apartment for peeling paint, to determine whether painted windows or doors stick or bind and to remediate any problems that are found.

According to some tenant advocacy groups, however, Local Law 38 does not do enough to protect tenants.

Mr. Chachere, of the Northern Manhattan Improvement Corporation, said that the bill just introduced in the City Council, known as Intro 101, offered more protection to tenants than Local Law 38.

For example, he said, Intro 101 would raise the child-age trigger for inspections and remediation from under 6 years old to under 7, the age originally contained in Local Law 1 of 1982. In addition, and also consistent with Local Law 1, Intro 101 defines lead paint as paint that contains seven-tenths or more of a microgram of lead in a square centimeter. Under Local Law 38, lead paint is defined as paint that contains a microgram or more of lead per square centimeter. And under Intro 101, landlords who perform lead remediation work would be entitled to J-51 tax benefits — that is, property tax credits based upon the cost of work performed. That would give landlords an incentive to do work they might otherwise not do.

Another significant difference between Local Law 38 and Intro 101 is that the former does not define lead-bearing dust as a hazard. Such dust, which is created when painted surfaces containing lead rub against each other, can be present even when there is no peeling paint in a home or apartment.

In fact, Mr. Chachere said, the ingestion of lead-bearing dust is one of the leading causes of lead poisoning in children.

To address that, he said, Intro 101 establishes parameters for determining whether there are unacceptable levels of lead in dust, and then requires remediation if unacceptable levels are found.

And while Local Law 38 does not address lead paint in common areas, Intro 101 would provide that peeling lead paint or lead paint on deteriorated surfaces in such areas constitutes a violation. The proposed law would also require owners to remove or permanently cover all lead paint on friction surfaces — like windows and doors — when an apartment is vacated, even if the painted surface is sound. Local Law 38 contains no such provision.

Finally, Mr. Chachere said, Intro 101 would extend lead-based paint regulations to schools, day care centers and playgrounds, areas not addressed by Local Law 38.

And while the fact that a majority of council members have sponsored Intro 101 might make it appear that it is assured of passage, Mr. Chachere said that tenants' advocates, who preferred Local Law 1 to Local Law 38, were taking no chances.

"We don't know what will happen with the new law," he said. "So I think its extremely likely that we will be appealing the ruling upholding Local Law 38."

Robert Grant, director of management for Midboro Management, which manages property in Manhattan, said that the city may end up with yet another lead law — one that is a compromise between Local Law 1, Local Law 38 and Intro 101.

"There are some things in the proposed law that are hard to argue with," Mr. Grant said, pointing to the proposed coverage of lead dust in the regulations, the extension of the regulations to schools, day care centers, playgrounds and common areas, and the proposal to make J-51 benefits available to owners who make repairs as examples of provisions that seem to make sense.

"But after 20 years," he said, "it's getting hard to predict anything about lead paint regulation in New York City."