City Agencies Withdraw from RSA Seminar
As part of RSA’s ongoing effort to keep members informed about the latest developments affecting the maintenance and operation of their buildings, RSA held a seminar on March 18th on the new lead-based paint regulations issued by the federal Environmental Protection Agency and their impact upon property owners. A capacity crowd of property owners, managers, attorneys and other real estate professionals and RSA members were in attendance. To everyone’s dismay, the two City agencies that were scheduled to appear, the Department of Housing Preservation and Development and the Department of Health and Mental Hygiene, informed RSA just days prior to the seminar that they would not participate, despite their prior commitments to do so.
The participating panelists included Jeanette Dadusc, the regional coordinator for the implementation of the new regulations from the EPA, Harold Shultz, Esq., Senior Fellow, Citizens Housing and Planning Council, and Josh Sarett, President, ALC Environmental, Inc. The seminar was moderated by Mitchell Posilkin, RSA’s General Counsel and Robin Bernstein, RSA’s Deputy Counsel. The City’s primary role at the seminar was to address the City’s plans with regard to implementation and enforcement issues where the federal regulations and the City law and regulations are in conflict. Apparently, the City agencies themselves are not certain how to address these issues, two years after the regulations were published and shortly before they take effect.
A brief summary of the keys points covered by the presenters is set forth below. (The complete course materials are available on RSA’s website.)
The new EPA Renovation, Repair and Painting Rule takes effect on April 22, 2010, and applies to all “renovations performed for compensation in target housing and child occupied facilities.” “Target housing” is defined as all housing constructed prior to 1978, with exceptions for housing for seniors or the disabled [unless a child under 6 years old is expected to reside there] and 0-bedroom (studio) apartments. “Renovation” is defined as “The modification of an existing structure that results in the disturbance of painted surfaces.” The rule requires that to qualify as such work more than 6 square feet per room of interior painted surface must be disturbed or more than 20 square feet of exterior painted surface. “Compensation” means that the renovator is paid for the service provided. Compensation can include wages paid to building staff, monies paid to sub-contractors, and rent paid by a tenant.
Apartments which are tested and determined to be lead-free in accordance with federal requirements are not subject to any of these provisions. Also exempt is work done by an owner in an owner-occupied home, including cooperatives and condominiums, where there is no child under six years of age and there are no pregnant women.
The Renovation Rule requires that the entity performing the work must be an EPA certified firm. A firm becomes certified by submitting an application to the EPA and paying a $300 fee. If an individual owner, superintendent, or other individual will be performing all the work personally, they must become a certified firm, as well as become a certified renovator. EPA accredits training providers who, in turn, certify individuals upon completion of the renovator course. A certified renovator (1) must be assigned to each job, (2) may employ non-certified workers, (3) must train all non-certified workers, (4) must keep documentation of having trained the workers, (5) must make sure that lead safe work practices are followed, (6) must follow record-keeping and information distribution requirements of the law, and (7) be available to the workers either on-site or by phone at all times. The EPA certifications are valid for 5 years.
Further complicating an already-complicated subject area is fact that there are both similarities and differences between the existing City Law, Local Law 1 of 2004, and the EPA’s new regulations. One of the major differences is that Local Law 1 applies to pre- 1960 buildings and the federal law applies to pre-1978 buildings. There are also differences in the testing methods to determine whether lead dust levels after the completion of renovations are appropriate. City law requires that the dust testing be performed by an independent third-party testing company while the federal regulations allow the renovator to perform cleaning verification of the work area using an EPA-issued “cleaning verification card”. A dust clearance test can be done in lieu of the cleaning verification procedure by a certified dust clearance technician, inspector, or risk assessor.
Although the City agencies were not present and were therefore unable to provide any guidance regarding enforcement issues, Ms. Dadusc of the EPA did attempt to assure owners that at least with regard to her agency, enforcement was going to be targeted at companies which are disturbing lead painted surfaces without obtaining the required certifications, not at owners or agents. That is small comfort, however, to owners who will be caught between their contractors, litigious tenants, and the enforcement efforts of both City and federal agencies.
RSA will provide more information on the implementation of the new regulations on our website as it becomes available.
Required Notices and Pamphlets
HUD Residential Lead-Based Paint Disclosure Program: For properties built before 1978, Federal law requires owners to include a lead disclosure notice in the lease, disclose any known information concerning lead-based paint or lead-based paint hazards and provide the EPA pamphlet, “Protect Your Family from Lead in Your Home.”
EPA Renovation, Repair, and Painting Rule: Before starting a renovation in residential buildings built before 1978, the contractor or property owner is required to distribute another pamphlet, “Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools.” Tenants should sign for the receipt of the pamphlet.
Local Law 1: The law requires annual notifications by owners to all occupants, as well as to occupants upon lease-up and lease renewal, inquiring if there are children less than six years of age residing in the unit. Owners must include a notice about owner responsibilities under the law with each lease and must provide the DOHMH pamphlet informing occupants about lead-based paint to the tenants. Owners are also required to physically inspect units whose occupants do not respond to determine if there is a child less than six years of age residing in the unit. Owners must correct any peeling lead paint in accordance with federal requirements.
Lead paint information websites:
NYC Lead Paint Law Compliance
EPA Renovation, Repair and Painting Rule
EPA Accredited Training Providers
HUD/EPA Residential Lead-Based Paint Disclosure Program
(Section 1018 of Title X)
EPA Lead Abatement
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