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Lead Poisoning and the Law New York Court of Appeals (NY’s highest court):  “Childhood lead paint poisoning may be the most significant environmental.

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Presentation on theme: "Lead Poisoning and the Law New York Court of Appeals (NY’s highest court):  “Childhood lead paint poisoning may be the most significant environmental."— Presentation transcript:

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 Disclosu re 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 μ g/dL NEEDS follow-up: >44 μ g/dL IMMEDIATELY 20-45 μ g/dL WITHIN 1 WK-MONTH 10-19 μ g/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 LawDateAgencyDetails Health Code § 173.13 1960DHMH Banned use of lead paint in homes and schools effective 1960. Requires DHMH to inspect and order abatement when a person < 18 has a blood lead level of # 15 μ g/dL Owners have 5 days to abate. Applies to any dwelling.

16 Major NYC City Lead Laws - 2 LawDateA’c’yDetails Admin. Code § 27-2126 1972 (LL 50) Repealed and recodified in 2004 HPD, DHMH If landlord failed to remove a DHMH Pb violation, DHMH — within 16 days of the complaint or inspection (whichever occurred first) — had to request HPD to correct, and HPD had to do so within 18 days thereafter., With § 173.13 thus required the City to assure correction in 34 days from report of poisoning.

17 Major NYC City Lead Laws - 3 LawDateA’c’yDetails Admin. Code § 27- 2013(h 1982 (LL 1). Repealed 1999, reinstated 2003, repealed 2004 HPD Owners must safely remove or cover all Pb paint in units with children < 7, in multiple dwellings, before children are poisoned. Violations must be removed in 24 hours. Rebuttable presumption that peeling paint in pre-1960 buildings contains Pb. Landlords on notice of all Pb hazards, whether or not they inspect, as long as they know a child resides there.

18 Major NYC City Lead Laws - 4 LawDateA’c’yDetails Health Code §173.14 1993DHMHSafe work practices for Pb abatement. Until 1999, required whenever HPD or DHMH cited violations, and by court order were to apply to all Pb abatement work. After 1999, continued to apply to DHMH violations, but only applied to HPD violations when landlords had not corrected within 21 days (“2 tiered” system) Under 2004 law, practices apply to all work disturbing Pb paint, per HPD regulations, § 11-06.

19 Major NYC City Lead Laws - 5 LawDateA’c’yDetails Admin Code § 27- 2056 et seq. 1999 Struck down by Court 2003. HPD Repealed LL 1 of 1982. Required owners to send notice once a year asking if children < 6 in dwelling unit, and if affirmative notice returned, inspect once a year for peeling paint. Continued presumption of Pb paint in pre- 1960 buildings. Applied only to multiple dwellings. Must remove violations within 21-60 days. Could use lesser “interim controls” rather than § 173.14 rules during 1st 15 days after violation.

20 Major NYC City Lead Laws - 6 LawDateA’c’yDetails Admin Code § 27- 2056 et seq. 2004 (LL 1 of 2004). HPD, DHMH Repealed Local Laws 1, 50, and 38. Requires owners to ascertain if children < 7 reside in dwelling unit, and if so, inspect at least once a year for lead hazards. Continues presumption. Must use work practices as protective as Health Code § 173.14, trained workers (certified firms if a violation cited). HPD’s implementing regulations at 28 RCNY §11-01 et seq.

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 1. Pre-1960 building, or pre-78 if known lead paint. 2. Multiple dwelling, and 3. 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 1. Once a year, and also 2. More often if necessary, such as a. 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. b. When tenant complains of lead hazard c. When city issues an order to correct a lead hazard. When?

36 Landlord inspection for Pb hazards – Pt 3 How:  Investigation in dwelling unit and common areas for: 1. Peeling paint 2. Chewable surfaces 3. Deteriorated subsurfaces, 4. Friction surfaces 5. 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: 1. Peeling paint 2. 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: 1. Condition didn’t exist at the time the violation was placed 2. Landlord faced serious technical difficulties, was unable to obtain the necessary materials, funds or labor or was unable to gain access 3. Landlord was unable to obtain a license or permit necessary to perform the repairs 4. 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 HP D Flo w Ch art

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 > 1,100 ⁰ 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 ft ² 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

51 DMHM Notice of Commence- ment Pg 1

52 DMHM Notice of Commence- ment Pg 2

53 Specifics of Work Practices – Pt 3 Work Area Preparation  Post warning signs (and DHMH notice if required)  Pre-clean floors, moveable furniture, drapes, carpets with HEPA vacuum or wash.  Move out cleaned items or cover with 6 mil poly, secured with waterproof tape  Cover floors with multiple layers of 6 mil. poly, secured with waterproof tape, forming continuous barrier, tape to bottom of walls or baseboards  Turn off and seal forced air system ducts in work area  Seal windows with poly  Create doorway flap out of two layers of 6 mil poly  Create clean changing area segregated from work area by a physical barrier to prevent dispersal of dust  Keep occupants out of area

54 Specifics of Work Practices – Pt 4 Daily Clean-Up – End of Day  Large demolition debris should be wrapped in 6-mil poly, sealed with waterproof tape, and disposed of safely  Small debris HEPA vacuumed or wet swept (no dry sweeping!), put in double 4 mil or single 6 mil bags, and sealed  Wet mop or HEPA vacuum work area  Visually inspect adjacent areas and wet sweep or HEPA vacuum  Properly store chemicals, flammable materials, or contaminated materials  No contaminated poly or drop cloths or other materials accessible outside work area

55 Specifics of Work Practices – Pt 5 Temporary Access Permitted (if Occupants Not Relocated) at End of Day’s Work, provided Work area is cleaned per daily clean-up requirements No Safety Hazards (such as exposed wires or holes in floor) Floor coverings with leaded dust or debris and hazardous materials removed Floors in work area re-covered with non-skip floor covering securely taped to floor Work areas re-prepared as needed when work recommences And at end of workday, and before access is permitted, checklist is completed and signed by person overseeing work If work does not recommence within 5 days, person responsible for work must recheck for compliance with above

56 Specifics of Work Practices – Pt 6 Final Clean-Up Wait 1 hour for dust to settle before starting, then: 1) Mist all poly sheets and sweep prior to removal  Remove first upper-levels, such as on windows or cabinets, fold corners and ends to middle, put in double 4 mil or single 6 mil bags, and seal 2) HEPA vacuum all surfaces, start with ceilings, then walls, then floor, including furniture and carpets 3) Wash all surfaces with detergent, start with ceilings, then walls, then floor 4) HEPA vacuum all surfaces again, as above 5) Visually inspect for dust and debris 6) Proceed to dust clearance testing

57 Dust Clearance Tests - Part 1 Persons performing clearance tests must be 3 rd parties, independent of the owner and individual or firm performing work. Must have successfully completed a course approved or administered by DHMH, EPA, or HUD Dust tests sent to laboratory must include a sworn certification that test was performed in compliance with all applicable rules and regulations When performing work in response to a violation, all clearance test results must be filed with HPD Copy of results must be given to the tenant by the owner and must provide a clear explanation

58 Dust Clearance Tests – Part 2 40 μ g/ft² on floors 250 μ g/ft² on window sills 400 μ g/ft² on window wells or troughs

59 Condos and Co-ops Law does not apply to a dwelling unit in a condominium or co-op where:  Unit is occupied by the proprietary leaseholder (or family), or Owner of condominium unit (or family). Responsibility for compliance with Local Law 1 may be re-allocated between tenant shareholder or condo owner and co-op or condominium.

60 DHMH response to a Lead Poisoned Child DHMH is notified in 24 hours by health care provider DHMH will conduct investigation for potential sources of lead poisoning when there’s a child under 18 w/ a blood lead level of  15 µg/dL DHMH will inspect:  Child’s residence, and if necessary, other locations such as  School,  Babysitter  Relative’s home

61 DHMH response to EBL Child – Pt 1 Applies where report of child under age 18 with a BLL  15 μ g/dL DHMH serves landlord notice of violation and order to abate Landlord must correct w/in 5 days using work practices in Health Code §173.14 If landlord fails to abate:  DHMH must refer to HPD w/in 16 days of report of child’s poisoning  HPD must correct violations w/in 18 days of referral date.

62 DHMH response to an EBL Child – Pt 2 Audit and inspection by HPD following order to abate  DHMH must notify HPD of all orders to abate  Landlord must provide HPD all records owner is required to maintain under Local Law 1 w/in 45 days of request Upon receiving records, HPD must  Find units in building where uncorrected lead- based paint hazards may exist where a child < 7 resides.  HPD, within 10 days, must attempt to inspect such units for any lead paint violations

63 DHMH response to an EBL Child – Pt 3 If owner fails to provide records:  HPD must attempt to inspect units where child of applicable age resides for lead hazards within 45 days.  Owner’s failure to comply with record requirement is a class C violation and is liable for a civil penalty up to $1000.

64 DHM H Flow Chart

65 Poster required to be distributed in paint store

66 DHMH Pamphlet given to Parents with Birth Certificates

67 Children at 20 or above

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