June 2023 Bulletin to Property Owners

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. This bulletin will be available in other languages on HPD’s webpage within the next two weeks, under the heading Briefings.

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.

Upcoming Webinar

Lead-Based Paint Annual Notice and Recordkeeping: An Owner’s Guide to Compliance in NYC

Thursday July 6^th, 2023, from 11:00am-12:30pm

In the next installment of our ongoing lead-based paint series for Owners, we’ll revisit two topics: Annual Notice and Recordkeeping. Join us to learn the details of the City’s Annual Notice requirements, and to learn guidelines and tips for following the law by keeping records of ALL lead-based paint activity. The webinar will conclude by bringing the two topics together, using Annual Notice as a case study to provide a practical step-by-step demonstration of how an Owner can draw on HPD resources in order to document lead-based paint compliance. Please register now (space is limited).

Link: https://attendee.gotowebinar.com/register/2473960967626171998

LEAD-SAFE WORK PRACTICES:

FREQUENTLY ASKED QUESTIONS

Property owners of buildings built prior to 1960 or buildings built between 1960 and 1978 where the owner knows there is lead-based paint, are required to use safe work practices (as defined in § 27-2056.11 of Article 14 of the NYC Housing Maintenance Code and §11-06 of Chapter 28 of the Rules of the City of New York (“RCNY”)) whenever disturbing or repairing painted surface unless they have tested the surfaces and they do not contain lead-based paint (as defined by Local Law). Federal regulations for lead-based paint 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 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:

Minimize dust dispersion, which means NOT dry scraping paint (which creates dust), using plastic sheeting on floors to stop dust from settling in cracks on the floor, and using plastic sheeting between work areas to minimize the spread of dust from work areas to non- work areas.
Clean daily when work ends, including mopping and HEPA
Make sure the surfaces are clear of lead-contaminated dust prior to a tenant reoccupying the area.
Use qualified contractors, where required.

2. 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 more than 2 square feet of paint in a single room, 10% 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 more than 20 square feet of paint will be disturbed.

HPD has created sample Safe Work Practices record keeping templates for owners to use to assist with following Local Law 1.

3. 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 Department of Health and Mental Hygiene (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.

4. Can I do lead-safe work myself?

Only if you are also properly certified.

If the work you are doing is not related to lead-based paint violations or Orders issued by the City, you or your contractor must have an EPA certification as a Renovation firm (also known as Renovation, Repair, and Painting or “RRP” certification) and employ EPA-certified Renovators.
If the work is pursuant to violations or Orders, or if your intent is to permanently remove lead-based paint, you or your contractor must have an EPA certification as a lead-based paint abatement firm (also known as Lead-based Paint Activities certification) and employ EPA-certified lead abatement workers and supervisors to complete the work.
If the work is in housing where a child under 6 routinely spends 10 or more hours a week that involves disturbing paint of more than 100 square feet in a room or involves the removal of 2 or more painted windows, the contractor must be EPA certified in both Renovation and abatement to be in compliance with both Local and Federal Law.
In all cases, dust sampling must be done by an EPA-certified lead-based paint inspector or risk assessor, who is independent of the owner and the contractor who performed the work, to confirm that the area is clear of lead-contaminated dust.

5. How do I make sure a contractor is qualified?

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 and also offers guidance on the difference between RRP and Abatement.

6. 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 more than 2 square feet of paint or 10% of a 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:

The EPA certificate of the firm;
The EPA certificate of the person who performed the work;
An Affidavit from the EPA-certified firm that the work was performed in accordance with
27-2056.11 of Article 14 of the Housing Maintenance Code that includes the start and completion date of the work and includes the address and contact information for the firm that completed the work;
A description and the location of the work performed in each room or the invoices for the work;
The results of the lead-contaminated dust clearance test from an independent laboratory certified by the state of New York;
An Affidavit from the certified person who took the dust sample verifying the address and the date it was taken and a copy of that person’s EPA certificate; and
Checklists completed when/if the occupants were allowed temporary access to the work

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.

7. Where can I get more local guidance?

For more information on Safe Work Practice, view HPD’s Webinar on Safe Work Practice.

Property owners can also the access local lead-safe work practices guidance here:

If you know your building has no lead-based paint, 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.

PREPARING FOR EXCESSIVE HEAT

As summer approaches, HPD would like to ensure building owners are prepared for extreme heat. Excessive heat is one of the leading causes of weather-related deaths in the United States. People living in urban areas could be at greater risk for the effects of excessive heat than are people living in rural areas, since asphalt/concrete store and release heat at night, increasing overnight temperatures. In NYC, most heatstroke deaths happened to people who were in homes without air conditioning.

During periods of excessive heat, please check on your vulnerable tenants, especially those who are elderly or have disabilities or access and functional needs. If your tenants do not have air conditioning, they can find a cooling center (a heat wave. Tenants may also be eligible to apply for a free air conditioner through the Home Energy Assistance Program (HEAP). Consider posting the attached flyer in a common area of your building to inform tenants about HEAP. (Link to nearest cooling center will only be activated during a heat wave)

If a tenant appears to have symptoms of heat exhaustion or heat stroke, call 911. For more information on emergency planning and communication with tenants, review the following: residential-building-owner-punchlist.pdf (nyc.gov) and emergency-planning-and-evacuations-guide.pdf (nyc.gov).

Excessive heat could also lead to power outages. As a reminder, Local Law 98 of 2013 requires owners to post a temporary notice with emergency information in the common area of the building in the following situations:

Prior to the arrival of a weather emergency
After a natural disaster
After being informed that a utility outage will last for more than 24 hours.

You should also consider posting temporary notices on each floor of the building and directly messaging your tenants. For more information on planning for emergencies that could affect your building(s), visit: Emergency Preparedness - HPD (nyc.gov) and Emergency Planning - HPD (nyc.gov).