Dear Property Owners,
Furthering our commitment to providing property owners information on their obligations under the law, the Department of Housing Preservation and Development (HPD) will be publishing a series of quarterly bulletins online and via email. Each bulletin will highlight one aspect of the law and is not meant to comprehensively cover all laws and rules that apply.
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This publication is intended for informational purposes only and is not intended as legal advice. This information is not a complete or final statement of all the duties of owners and tenants regarding laws and rules relating to housing in New York City.
Effective August 9, 2020, Local Law 31 of 2020 states that an owner must use an Environmental Protection Agency (EPA) certified lead-based paint inspector or risk assessor, independent of the owner or any firm hired to perform lead-based paint remediation, to test, using an x-ray fluorescence (XRF) analyzer, for the presence of lead-based paint in each dwelling unit of a building built prior to 1960. The inspection must take place within 5 years of the effective date of the law (by August 9, 2025) or within one year if a child under the age of 6 comes to reside in the unit (whichever is sooner). This requirement must also be met if the rental building was built between 1960 and 1978 and the owner has actual knowledge of lead-based paint. As of January 1, 2020, the term “reside” now means that a child under six years of age, routinely spends 10 or more hours per week in the dwelling unit in a pre-1960 building which includes both a child who lives in the apartment and a child who just visits for this period of time. The certified inspector or risk assessor who performs the testing must complete an affidavit (sample below) and the owner must provide the results of the testing to the tenant.
Sample Affidavit by Certified Individual Who Performed Lead-Based Paint Testing
More information about how the change in the definition of lead-based paint may affect the Local Law 31 testing requirement is available in the Frequently Asked Questions.
Penalties may be significant for failure to conduct these activities and maintain these records.
1. JANUARY 1 TO JANUARY 16: Send out the Annual Notice
2. BY FEBRUARY 15: Collect the Annual Notice
3. FEBRUARY 16 TO MARCH 1: Follow-up on the Annual Notice
4. AS SOON AS YOU KNOW A CHILD UNDER 6 RESIDES: Do the annual inspection for lead-based paint hazards and fix deteriorated paint
Lead-based paint poisoning can cause developmental problems for children under the age of six. To limit exposure to lead-based paint hazards, Local Law 1 of 2004 (Local Law 1) requires property owners of buildings built before 1960, or buildings built between 1960 and 1978 where the owner knows there is lead-based paint, to identify and remediate lead-based paint hazards in apartments where a child under age six resides. Under Local Law 1, “resides” means that the child under 6 routinely spends 10 or more hours a week in the apartment, which includes both a child who lives in the apartment and a child who just visits for this period of time. New York City banned the sale of lead-based paint much sooner than the federal government did, and, therefore, has rules focused on residential buildings built before January 1, 1960. However, federal regulations for lead-based paint still also apply in New York City, and owners should be aware that those requirements for safe work practices extend to housing built before January 1, 1978. You can find more information about federal lead-based paint requirements at the U.S. Environmental Protection Agency (EPA) website: www.epa.gov/lead.
1. What are lead-safe work practices?
Lead-safe work practices are practical requirements that ensure that your tenants remain safe from lead-based paint dust while work affecting painted surfaces is being done. Under Local Law 1, some of these requirements are to:
2. Who sets the requirements for lead-safe work practices?
In New York City, lead-safe work practices are currently governed by both federal and local agencies. The U.S. Environmental Protection Agency (EPA) and the Occupational Health and Safety Administration (OSHA) set general federal standards related to both occupant and worker safety and worker qualifications. The U.S. Department of Housing and Urban Development (HUD) also sets standards for housing that receives federal assistance, such as public housing and Section 8/Housing Choice Voucher programs. Locally, both the Department of Health and Mental Hygiene (DOHMH) and HPD set standards related to lead-safe work practices.
3. How do I know if I have to use lead-safe work practices?
Federal and local requirements vary slightly, so applying the strictest requirement is the best approach to make sure you are following both sets of rules. This means, if your building was built before 1978, you should use lead-safe work practices if you will be doing any repair or renovation that will disturb 2 square feet or more of paint in a single room, 10% or more of the surface area of a small component, or involve the removal of windows. This requirement should be followed whether or not there are any children in the specific unit or building because under federal regulations, all residential buildings built before January 1, 1978, are presumed to have some amount of lead-based paint either on the interior, exterior, or both. Under EPA regulations, you must also use safe work practices for exterior work if 20 square feet or more of paint will be disturbed.
HPD has created sample Safe Work Practices record keeping templates for owner to use to assist with following Local Law 1.
4. What are the penalties property owners can face if they don’t use lead-safe work practices?
Tenants can call 311 and file complaints whenever work is being done in either occupied apartments, vacant apartments or common areas of a building without proper tenant protection plans in place that are being followed by contractors/workers (see the Department of Buildings website for more detail on when a tenant protection plan is required and how to complete one). Whenever painted surfaces are being disturbed, the tenant protection plans must include some description about how dust will be contained, controlled, and cleaned to protect tenants. City agencies will be responsive to these complaints and may issue violations. The Department of Buildings (DOB) may also conduct proactive inspections of work in progress. If a property owner is determined to not have followed lead-safe work practices, there are multiple city- level penalties that can be issued by DOHMH and DOB. Penalties from DOHMH can range from $200 to $2,000 and penalties from DOB can range from $1,250 to $25,000.
5. What if I know my building has no lead-based paint?
Property owners can hire an EPA-certified lead-based paint inspector or risk assessor to test the painted surfaces to determine if there is no lead-based paint or identify specifically where lead- based paint is to assist with this compliance. This is the only way to be certain that your building has no lead-based paint.
A reminder that as of December 1, 2021, the threshold that determines lead-based paint under Local Law 1 was lowered to 0.5 mg/cm2 from 1.0 mg/cm2. More information about the change to the lead-based paint threshold can be found in HPD’s FAQ and the October 2021 Briefing.
If you’ve had your building’s paint tested, make sure you have all your test and/or abatement records. You might need to present those records to HPD, DOHMH or DOB, if requested. If you completed testing and found no lead, or abated the lead you found, and your building is built before January 1, 1960, you may wish to file with HPD for an exemption from the presumption of lead-based paint so that several requirements of NYC’s lead law will not apply to your building. For more information on exemptions, see HPD’s website.
6. Can I do lead-safe work practices myself?
Only if you are also properly certified.
7. How do I make sure a contractor is qualified?
EPA regulates worker training and certification requirements and outlines specific required steps if lead-based paint is going to be abated or paint is to be disturbed during repair, renovation, or painting. This includes, but is not limited to, required lead-safe work practices focused on setup, clean-up, and testing to confirm the cleanup was done properly.
For standard repair, renovation, or painting work (RRP), which under Local Law 1 includes any work that would disturb 2 square feet or more of paint in a room, property owners should confirm prior to work starting that:
The EPA website has information about the Renovation, Repair and Painting (RRP) program. On this webpage, you can also search for an EPA-certified firm.
In addition, the EPA website provides information about Lead-Based Paint Abatement as well as offers guidance on the difference between RRP and Abatement. As noted above in question 6, some work performed may require the contractor to be certified both in RRP and abatement.
8. What other documentation must I have to show lead-safe work practices were used?
Under Article 14 of the NYC Housing Maintenance Code, property owners are required to retain lead-based paint records for no less than 10 years. All violation and non-violation work could be subject to a records request from HPD following the issuance of a Commissioner’s Order to Abate (COTA) from DOHMH or as a part of a proactive audit in accordance with Local Law 70 of 2019. More information about this proactive audit can be found in the January 2021 Briefing or by reviewing a sample Record Production Order.
Some of the records requested would include evidence that lead-safe work practices were followed if repair, renovation, or painting work was done that disturbed 2 square feet of paint or more or 10% or more of the surface area of a small component in a room in an apartment where a child under the age of 6 years old resides. If this has occurred, the property owner must provide HPD with:
Under Local Law 1, there are additional requirements for the type of firm that can be used and required documentation if the work disturbs paint of more than 100 square feet in a room, involves the removal of 2 or more painted windows, or if the work being performed is in response to a violation.
9. Where can I get more local guidance?
Property owners can the access local lead-safe work practices guidance here:
Additionally, LeadFreeNYC is a great starting place for all questions about local law and rules on lead and lead-based paint. The city is regularly adding to this website, and it can easily direct the public to each agency’s specific website.