Local Law 31: HPD Adopts Five-Year Lead Paint Testing Rules

We'll give you a checklist of key lead paint-related documents to save to prove compliance, and tell you about grants available to help you remediate lead paint hazards.

Earlier this year, Mayor de Blasio signed a package of bills designed to strengthen existing lead laws and close loopholes that could potentially endanger children and pregnant women with lead exposure. HPD recently adopted rules implementing Local Law 31, which mandated significant changes for New York City’s lead inspections.

Local Law 31 Requirements

Local Law 31 went into effect on Aug. 9, 2020. Here are some of the requirements it added to existing lead-inspection regulations:

• Within five years of the law’s effective date (Aug. 9, 2025), or within one year if a child under the age of 6 comes to reside in the unit, whichever is sooner, an x-ray fluorescence (XRF) analyzer inspection to test for the presence of lead-based paint must be performed in the unit. (As of Jan. 1, 2020, under Local Law 64 of 2019, the definition of the term “resides” is to routinely spend 10 or more hours per week in a dwelling unit, which includes both a child who lives in the apartment and a child who just visits for this period of time.);
• Inspections must be performed by a third-party EPA-certified inspector. The inspector must be independent of the owner or any firm hired to perform lead-based paint remediation; and
• The inspections must follow a specified protocol. It consists of the use of an XRF analyzer on all types of surfaces in the unit in accordance with the procedures described in Chapter 7 of the HUD guidelines for the evaluation and control of lead-based paint hazards in housing.

Owners may be exempted from the five-year testing requirement if an inspection that meets the guidelines was previously completed and the owner retained the records of the investigation or if the unit has an exemption from the presumption of lead paint. Even if a building is lead-free, the city’s law presumes the building has lead-based paint in it if it was built before Jan. 1, 1960, if it has three or more apartments, and if a child under age 6 lives there. But owners can apply to HPD to exempt an individual apartment or an entire building from this presumption.

HPD Audits of Lead-Based Paint Investigations

In addition to rules related to the five-year testing requirement, HPD adopted rules pertaining to HUD audits of the owner’s responsibility to notify occupants and investigate lead-based paint hazards. In November 2019, the de Blasio administration launched a data-based outreach and inspection effort to combat childhood lead exposure.

As part of the initiative, HPD audited lead-related documents for 208 multi-unit buildings of a targeted group and, where possible, issued violations and took legal action to ensure owners are complying with requirements related to annual notices, inspections, and turnover of the unit. The auditing process is the same process that HPD uses for the Building Lead Index, an auditing initiative that targets 200 additional buildings each year for proactive audits.

According to the adopted rule changes, upon an HPD audit of owner-required notices and investigations of lead paint, the owner must provide the following information:

• Identification of each dwelling unit that was investigated;
• Whether a child of applicable age resided in the dwelling unit and, if so, the date the child first came to reside in the unit;
• Date of the investigation;
• Documentation identifying the firm and individuals who performed the investigation, including copies of certifications of the firm and individuals;
• Testing results from the investigation; and
• Identification of any dwelling units in the building that have been granted an exemption by HPD.

Save Key Lead-Based Paint-Related Documents to Prove Compliance

Your building is covered by New York City’s lead-based paint law if it was built before 1960. Here are records and documents you should keep if your building is covered:

[] Lead-based paint notices signed by tenants. You must send annual HPD lead-based paint notices to tenants in your building. You must also provide a different HPD lead-based paint notice when you sign leases with new tenants or renew leases with current tenants. Tenants are supposed to sign these notices and give them back to you. Keep a copy of each signed notice in the tenant’s file. If tenants haven’t returned the notice to you, keep proof that you sent the required notice to your tenants.

How Long to Keep. The city’s lead paint law requires you to keep these records for 10 years from the date you get them back from the tenants.

[] Documentation of efforts to get tenants to return HPD notice. Some tenants may not return their signed lead-based paint notices to you. If so, you’re required to make certain efforts to get the tenants to return the notices, and you must notify the Department of Health and Mental Hygiene (DOHMH) of when and how you tried to contact the tenant. Although the law doesn’t require you to do so, it’s a good idea to keep records of your efforts (for example, letters you’ve sent to the tenant) as well as your letter to DOHMH.

How Long to Keep. You aren’t required to keep these records of your efforts for any specific length of time. But it’s a good idea to keep them as long as possible so that you’ll have proof that you complied with the lead-based paint law if a tenant sues you for lead-based paint poisoning.

[] Documentation of annual lead-based paint inspections. You must conduct annual visual inspections of apartments where a child under age 6 lives and of the building’s common areas. Keep copies of any documentation you have of these inspections.

How Long to Keep. The city’s lead-based paint law requires you to keep these records for 10 years. But you should keep them indefinitely. That’s because you may need to use them to comply with the federal lead-based paint disclosure law that requires you to give new tenants a disclosure form listing all lead-based paint hazards in the building and the steps you took to correct them.

In this form, you must disclose prior lead-based paint violations and the steps you took to correct them, and any lead hazards you found during the annual inspection, as well as the steps you took to correct them. The federal law sets no time limit for how far back you must go when disclosing lead-based paint hazards.

[] Records of work done to correct violations. You must keep records of the following information when you do work to correct lead-based paint violations:

• The name, address, and telephone number of the person or entity that did the work, as well as the start and end dates of the work;
• A copy of all licenses and training certifications required for the people who did the work;
• The location of the work done in each room, including a description of the work, and invoices for payment for the work;
• The results of the lead-contaminated dust clearance tests (also known as dust wipe tests) analyzed by an independent laboratory certified by New York State; and
• Checklists that your contractor is required to complete if you allowed occupants temporary access to the work area. Your contractor must complete these checklists at the end of each workday.

How Long to Keep. The city’s lead-based paint law requires you to keep these records for 10 years from the completion date of the work to correct the violation. If you sell your building within the 10-year period, you must give these records to the new owner. The new owner must keep them until the end of the 10-year period. However, for the same reasons discussed above, you should keep these records indefinitely.

Clearance Dust Wipe Samples. Local Law 66 of 2019 implemented lower lead reference/action levels and standards relating to lead-based paint hazards. The updated standards for lead dust clearance and lead dust hazard risk assessment testing in New York City are as follows:

Area                      Updated Standards

Floors                    10 mcg/ft2

Window Sills          50 mcg/ft2

Window Wells       100 mcg/ft2

[] Records of work done to correct hazards in vacant apartments. You must keep records of the following information when you do work to correct lead-based paint hazards in a vacant apartment:

• The name, address, and telephone number of the person or entity that did the work, as well as the start and end dates of the work;
• A copy of all licenses and training certifications required for the people who did the work;
• The location of the work done in each room, including a description of the work, and invoices for payment for the work; and
• The results of the lead-contaminated dust clearance tests (also known as dust wipe tests) analyzed by an independent laboratory certified by New York State.

How Long to Keep. The city’s lead-based paint law requires you to keep these records for 10 years from the completion date of the work to correct the violation. If you sell your building within the 10-year period, you must give these records to the new owner. The new owner must keep them until the end of the 10-year period. But, for the same reasons discussed above, you should keep these records indefinitely.

[] Records of work that disturbs two or more square feet of lead-based paint. You must keep records of the following information when you do work to correct two or more square feet of lead-based paint:

• A copy of all licenses and training certifications required for the people who did the work;
• The location of the work done in each room, including a description of the work, and invoices for payment for the work;
• The results of the lead-contaminated dust clearance tests (also known as dust wipe tests) analyzed by an independent laboratory certified by New York State; and
• Checklists that your contractor completed if you allowed occupants temporary access to the work area. Your contractor must complete these checklists at the end of each workday.

How Long to Keep. The city’s lead-based paint law requires you to keep these records for 10 years from the completion date of the work to correct the violation. If you sell your building within the 10-year period, you must give these records to the new owner. The new owner must keep them until the end of the 10-year period. However, for the same reasons discussed above, you should keep these records indefinitely.

HPD, DOHMH Offer Grants to Remediate Lead Paint Hazards

The Lead Hazard Reduction and Healthy Homes—Primary Prevention Program (PPP) is a joint initiative between HPD and the Department of Health and Mental Hygiene (DOHMH). The program offers federally funded grants for reduction of lead paint hazards and other health risks to owners of residential buildings constructed prior to 1960.

The primary purpose of the program is to assist owners in reducing lead paint hazards in order to prevent lead poisoning of occupants–especially children. Peeling or cracking lead paint is the most common cause of lead poisoning in young children, who can swallow lead dust that lands on window sills, floors, and toys. The program also has some funding to address conditions that pose other health risks to occupants, including excess moisture that leads to mold growth; vermin infestation; conditions that pose the risk of falls or other injuries; fire and electrical hazards; and others.

Eligibility. Buildings constructed before 1960, including multifamily apartment buildings of any size, located in any of the five boroughs of New York City are eligible. The building must have lead-based paint that is not intact as determined by lead risk assessments performed by the program inspectors. The building must be occupied by households with low- and very low-income levels, and at least one or more unit must house a child less than 6 years of age or a pregnant woman, or be visited by young children on a regular basis.

Process. Once an application passes an eligibility screening, HPD tests the property for lead paint hazards. Based on inspection results, a scope of work for lead hazard reduction is developed. A typical scope includes a mixture of partial abatement (removal and replacement of lead-positive components such as doors, door frames, window frames, window sills, and baseboards) and “interim control” treatment such as wet-scraping and painting of walls. The common areas from lobby to bulkhead and external fire escapes are also treated if necessary. Conditions posing other (non-lead) potential health risks will also be assessed and repairs to address these may be included in the scope of work. The work will be done by licensed, EPA-certified lead abatement contractors, and HPD will oversee the work.

Grants average $8,000–$10,000 per apartment. In exchange for this assistance, owners of rental buildings must agree, for five years following the lead treatment work, to rent any new vacancies to low- and very low-income tenants, giving priority to families with young children. Interested owners can read the grant terms at https://www1.nyc.gov/assets/hpd/downloads/pdfs/services/lead-hazard-reduction-healthy-homes-term-sheet.pdf.

The application materials can be found at https://www1.nyc.gov/site/hpd/services-and-information/lead-hazard-reduction-and-healthy-homes-program.page. After the application materials are submitted, an HPD Primary Prevention Program team member will reach out to further discuss the program and provide guidance through the application process. For additional information on the program, you can contact HPD at hpdlead@hpd.nyc.gov, or by phone at (212) 863-8860.