HPD Proposes New Definition for ‘Lead-Based Paint’

To implement Local Law 66 of 2019, HPD has proposed a rule amending the definitions of lead-based paint. Local Law 66 of 2019 outlined new lead reference or action levels and standards relating to lead-based paint hazards. The law allows the definition of lead-based paint to be amended once HPD issues a rule stating that the federal Department of Housing and Urban Development (HUD) has provided at least one performance characteristic sheet (PCS) approving a commercially available x-ray fluorescence (XRF) analyzer machine tested at the action level of 0.5 milligrams of lead per square centimeter (0.5 mg/cm2).

And HUD has done so. It has provided a PCS for the Viken Detection Model Pb200i, to test for lead paint at the level of 0.5 milligrams of lead per square centimeter. So HPD is amending its lead paint rules in Chapter 11 of Title 28 of the Rules of the City of New York to include a statement about HUD’s approval and to incorporate the definition of lead-based paint at the level of 0.5 mg/cm2, as provided under Local Law 66. The new definition will apply to all activities under Article 14 of the Housing Maintenance Code (Local Law #1) as of the effective date of the rule, Dec. 1, 2021.

The new standard is 0.5 milligrams of lead per square centimeter for paint tested by an XRF analyzer. The old standard was 1.0 milligrams per square centimeter. And the presumption of lead paint will be based on this new definition.

HPD proposed rules also state that owners would be permitted to submit “exemption applications” using the current lead paint definition until March 1, 2022, as long as the testing for the exemption was performed before Dec. 1, 2021, which is the effective date of the new lead paint definition. Exemptions granted using the older definition of 1.0 milligrams of lead per square centimeter will be “deemed revoked upon the turnover of a dwelling unit after Dec. 1, 2021.”

Local Law 31 XRF Test Requirement

While the new standards imposed by HPD's proposed rule wouldn’t take effect until Dec. 1, 2021, it’s important to stay on top of new lead-based paint regulations this year. This August marks the one-year anniversary of the Local Law 31 XRF test requirement.

XRF analyzers are specialized machines containing radioactive isotopes that are used to determine the elemental composition of a sample surface. Handheld XRF analyzers detect the presence of potential lead hazards. To be compliant with Local Law 31, testing must be performed by Environmental Protection Agency (EPA)-certified inspectors.

Local Law 31 of 2020 went into effect on Aug. 9, 2020, and requires XRF lead inspection tests in old residential “multiple dwelling” buildings. And per Local Law 29 of 2020, the definition of buildings with “multiple dwellings” has expanded to include smaller landlords. Multiple dwellings now include one- and two-family house rentals except the units occupied by the owner’s family.

Local Law 31 also includes a five-year testing requirement, meaning that all residential building owners in NYC must have all dwelling units inspected for lead paint by Aug. 9, 2025. However, apartments with children under the age of 6 residing there must be inspected much sooner, within one year of the law, by Aug. 9, 2021. Local Law 31 inspection reports must be kept on hand and made available to HPD upon request.

Local Law 31:

Lead Testing Requirements for Units with Children Under 6

While building owners have until Aug. 9, 2025, to have XRF inspections performed, if a child under the age of 6 resides in a unit, owners must have the XRF inspection performed within a year, by Aug. 9, 2021.

For children under the age of 6, the term “resides” means the child either lives in, or routinely spends 10 or more hours per week in a dwelling unit in a pre-1960 building. Therefore, XRF testing requirements also apply to properties where a child visits and spends time in regularly, even if they don’t live there.

What Are Lead-Based Paint Hazards?

Lead-based paint was banned in New York City in 1960, but it still exists in older buildings. As a hazard, lead exposure can be poisonous for young children and pose significant risks to pregnant women. According to the HPD website, common examples of lead-based paint hazards include:

• Peeling, chipping, or damaged lead paint
• Dust from deteriorating lead paint
• Lead paint on crumbling plaster or rotted wood
• Lead paint on doors, door frames, windows, and window sills that stick or rub together
• Lead paint on other surfaces that children can chew or that get a lot of wear-and-tear