Understanding Local Law 31: NYC Lead Paint Laws Explained

What is Local Law 31?

In 2016, the New York City Council enacted Local Law 31 ("LL 31"). LL 31 affected buildings within New York City built before January 1, 1960 and required such buildings to repair and remediate lead paint hazards. LL 31 also required owners of such buildings to obtain certificates from the Department of Health and Mental Hygiene ("DOHMH") that the buildings were in compliance with the Local Law. In response to the ongoing public health crisis created by lead paint and efforts to avoid punitive enforcement actions, property owners sought clarification from DOHMH on the scope of LL 31 compliance requirements, including testing, reporting, maintenance and remediation . LL 31 regulations took effect on January 1, 2019.
LL 31 and its Regulations are part of New York City’s broad efforts to address the public health hazard created by lead paint in buildings throughout the City. Under LL 31, which was enacted in 2016, regardless of whether a child with lead exposure had a residence in a multiple dwelling, all multiple dwellings built before 1960 (except for multiple dwellings that have been certified by the Department of Housing Preservation and Development as being Free of Lead Paint) must have been repaired and certified to be in compliance by January 1, 2019.

Scope and Application of Local Law 31

Under Local Law 31, owners of all multiple dwellings or building with 4 or more units, including SROs, must conduct inspections for lead paint within their buildings. As a starting point, all buildings with a residential component built before January 1, 1960 must be inspected by December 30, 2018. For those buildings have been inspected by an EPA qualified risk assessor and have a finding of no lead paint, a follow up inspection is required every five years. If lead paint is present, the building’s owner is required to incorporate lead-paint abatement into a long-term plan to remediate any lead-related issues in the building on a regular basis.
The inspections must be performed using the EPA’s Lead-Based Paint Activities (LBPA) regulation to determine whether lead paint exists in the building or any units. The EPA has publication that describes this protocol as well as the inspection process that is now being used in New York City. The inspector will document whether lead paint is present and the type of implementation that was used to remediate the issue, if present, using these regulations. In multifamily buildings or buildings with four (4) or more residential units, the inspection results must be made available to the public upon request during the period of time that the contract for the renovation, repair, or window replacement activity is being conducted. In addition to having to provide inspection results, owners must make the notices available both to all employees working in the area of the lead abatement and to current tenants who, may, or who may be exposed to lead hazards in the area undergoing abatement.
In adopting Local Law 31, the City took the significant step of requiring the performance of lead-paint clearances, which are much more exacting and comprehensive than the clearance testing that already exists for common area remediation. Clearance testing does not rely on the use of dust wipes or settle dust samples but instead documents whether a surface area is in compliance with the regulations. In particular, the law uses the EPA regulation for these clearance checks especially dust wipe sampling. These clearances are required at the conclusion of home renovations to determine whether or not the abatement has been effective. A clearance cannot be performed until all soft string or work area barriers are removed. In addition, in residential buildings, lead-dust clearance testing must also be conducted for the surrounding unit(s) adjacent the area where the abatement occurred.

Implications for Property Owners

Local Law 31 imposes strict requirements on owners, requiring periodic inspections and dust sampling, risk assessments, interim controls, and even abatement. These inspections, risk assessments, and the implementation of appropriate interim controls, can be costly, and therefore many owners will pass those costs through as a cost of doing business or see them reflected in the bottom line.
Under the law, an owner must bring violations of the Chapter to the Department’s attention to avoid violations and penalties as if the owner had created the condition. §27-2056.6. Moreover, a violation of any provision of Chapter 6 of Title 27 (the NYC Construction Code) or Chapter 2 of Title 35 (requiring notification of lead hazards during construction), that involves a lead hazard, subjects the violator to potential penalties. §27-2056.6.4.
Landlords and real estate managers also need to be cognizant of the financial and operational ramifications of Local Law 31. Lead abatement work must be performed by licensed workers, and that can be expensive. And, as with any unique law or regulation, some property owners may use the law as an opportunity to enhance their portfolio or interview tenants. Others may elect to sell their properties lest they face substantial costs for violations. What is clear is that denying a prospective tenant an apartment on the basis of potential lead risks will not protect owners who have unused violations or know about violations which they failed to report to the Department of Buildings. Owners would be advised to seek legal guidance to determine an appropriate plan in dealing with existing or potential violations.

Compliance with Local Law 31

Property owners must take certain practical steps to address lead paint in their buildings. Under Local Law 31, owners are required to obtain inspections conducted by a qualified professional that includes a lead dust wipe test of all affected units and surrounding common areas, as well as any impacted ancillary structures. This inspection process must be completed every 12 months. Based upon the results of those inspections, owners and property managers must either complete interim controls, including repairs and maintenance, that reduce the presence of lead dust, or conduct abatement work, and then conduct another lead dust wipe test and repaint/recoat on all impacted surfaces within three (3) months of completing the work.
Local Law 31 does not clarify if the initial inspection is the same inspection that property owners are required to conduct when conducting pre-renovation notification to tenants under Local Law 11. If you have a question about this or other questions concerning the practical steps to take to comply with Local Law 31, please call our office.

Health and Safety Implications

Complying with Local Law 31 protects both the occupants of newly built multiple dwellings and the general public from unnecessary risks of elevated blood lead levels. Proper maintenance and control of lead paint hazards in such multiple dwellings is essential for safeguarding children and those that may be affected by lead paint hazards. Lead is a cumulative poison that is extremely dangerous to the health of small children, pregnant women and others with especially sensitive metabolisms, including the elderly. Young children are particularly at risk from peeling, cracking or chipping lead paint because they frequently engage in typical behaviors such as chewing on coated surfaces, putting their hands in their mouths and crawling on contaminated floors. The health effects of lead poisoning are potentially devastating. Lead poisoning in children is linked to learning disabilities, speech and language delays, reduced IQ, behavior issues, seizures, or even convulsions.
Lead poisoning should be easily preventable . Yet, according to the CDC, approximately 500,000 children between the ages of one and five have blood lead levels above the CDC reference level of 5 μg/dL. Lead exposure also poses considerable public health challenges, where even low levels of lead in the blood may cause health effects. Health impacts are not just seen among children; lead poisoning and exposure can also have serious health impacts on adults. While children account for the majority of elevated blood lead levels in New York City, an average of 222 adults with elevated blood lead levels are reported each year, according to the NYC Department of Health and Mental Hygiene. This group includes pregnant women, women who plan to become pregnant, and those with compromised immunity. As a result, lead exposure has significant health consequences across the lifespan. Unleaded paints as well as other methods of controlling the risk of lead poisoning are more widely available. Lead paint is no longer manufactured, so utilization of lead techniques in the remodeling of structures where lead paint exists is discouraged.

Legal Ramifications of Violations

Violating the Lead Paint Hazard Notification Laws could expose the landlord or property owner to thousands of dollars in fines and cost of compliance. The NYC Department of Health and Mental Hygiene can issue orders of correction that may include up to a $350 fine for each violation. Furthermore, if a landlord refuses to comply, HPD may petition the court for an order compelling compliance with the laws.
Failure to comply with Local Law 31 could also implicate liability under New York City Administrative Code § 27-2059 or New York State Multiple Dwelling Law (MDL) § 78(5). MDL § 78(5) specifically requires property owners to remove lead paint from all apartments built before 1960, while Administrative Code § 27-2059 requires property owners to maintain lead-safe conditions in apartments. Violations of these laws previously resulted in an expansive body of case law holding owners and agents personally liable for property maintenance violations, such as damaging health code violations. Recently, the Court of Appeals held that only those responsible for the actual violation are subject to personal liability. Connaught Tower Corp. v. Trans Nat’l Equity Corp., 7 N.Y.3d 182 (2006). As such, this decision arguably narrows the ability of the Courts to impose personal liability on mega-landlords and their employees.
Failure to comply with Local Law 31 could also result in a property’s value diminishing. Property owners should anticipate that potential purchasers will have local law compliance reviewed as part of the due diligence process. Similarly, complying with Local Law 31 will increase one’s value by avoiding some of the adverse consequences discussed above. Moreover, links between lead-based paint and injuries to children and adults alike are widely reported, and adverse health consequences for innocent tenants could significantly depreciate the value of an apartment building over the long-term.
Section 28-208.1
28-208.1 Posting notice of lead hazards at construction sites.
a. Outside construction sites. Whenever one or more of the following activities or circumstances is present at a construction site the department of buildings shall require a sign to be posted on site:

• A disturbance of lead-containing surfaces, excluding woodworking and other demolition activities to remove no more than twenty-five percent of the combined square foot area of loose paint on all interior and exterior lead-containing paint surfaces, but including disturbing or removing lead-containing surfaces in any manner that may create regulated levels of lead dust or chips, as determined by the department of health and mental hygiene;
• Pathways within the construction site or any point of egress from the construction site contain or create the hazard of a fall or accident;
• Pathways within the construction site or any point of egress from the construction site contain unguarded holes or openings into the ground, via planned excavation or other, without temporary or permanent guardrails or other methods to prevent falling through such holes;
• Demolition of a structure or installation, relocation, or removal of a requirement to be supported in place in order to proceed further with construction;
• Iron or steel is being hoisted, swung or laid down;
• Spraying of water or other fire fighting media is not possible due to the risk of electrocution; and
• Heavy machinery shall be placed in the area where construction is occurring.

b. Within construction buildings. Whenever one or more of the following activities or circumstances is present within a building undergoing construction, alteration or demolition or within a nonresidential building regardless of whether it is undergoing such work the department of buildings shall require a sign to be posted in the lobby or at the main entrance:

• Demolishing or blast cutting is occurring;
• Moving of a crane or boom of any size;
• Moving of a personnel hoist or elevator;
• Installing or removing concrete formwork;

regardless of whether a crane, derrick, hoist or other similar device is required:
i. at or below the level of the sixth floor or equivalent structural member level;
ii. at or below the level of the second tier of masonry blocks or equivalent structural member level;
iii. below the second tier of masonry blocks or equivalent structural member level; or
iv. at a height greater than that which can be safely reached without scaffolding.
c. Posting of the notice. The sign required to be posted pursuant to subdivisions a and b of this section shall be of a design and in a manner approved by the department of buildings, and shall be:

• constructed of a rigid, uniform, weather resistant material such as plastic, wood, metal or similar generally accepted durable material;
• no less than four feet by six feet in size;
• predominantly yellow in color and shall have substantial contrasting black lettering warning the public of the danger associated with construction, alteration, planning or demolition activities on site; and
• maintained in good condition and in the same location, visible to pedestrians and passersby until all construction, alteration or demolition activities are completed on site.

The Future of Lead Paint

In light of the growing concern over the health risks posed to children by lead paint, additional regulations regarding lead paint are likely to be enacted in the future. As more research is performed, new information emerges regarding which lead paint exposures pose significant risks. The New York City Council has therefore already recommended several changes to the current regulations, such as an expansion of Local Law 31 to single family homes. They also recommend increased fines and additional testing protocols to those already in place.
As legislators and regulators enhance lead paint laws, the regulatory agencies will need to create new rules to give meaning to those new regulations and provide for their enforcement. At the federal level, the U.S. Congress has entertained a bill known as the Lead-Based Paint Reduction Act. Similar to the New York City legislation, it calls for more stringent testing, repairs and reporting efforts. Should this bill pass, the various federal agencies will each need to adopt rules and regulations in order to give effect to the law. The bill was passed in the House of Representatives. However, similar legislation failed to pass in the Senate.
Regulation at the state level must also be considered. Among other things, the Environmental Protection Board of the State of New York will have to issue new regulations in response to the newly adopted law. These regulations must be promulgated in accordance with the State Administrative Procedures Act , and will have to survive scrutiny both from within the Agency as well as from the public. In addition to these new regulations, the Department of Health will have to issue rules and a schedule for risk assessments in all Housing Maintenance Code conversions. The City Council and the State Legislature will also have to pass any number of amendments to existing laws, and issue new and revised Rules and Regulations to the many home related licensing agencies.
While there are many federal, state and municipal agencies involved in the legislative process, they have established a common sense approach to this problem. Each jurisdiction is recognizing that there is a problem and that they have a role to play in solving the problem. The fine line to walk requires the agencies to acknowledge their role as regulators, without being perceived as advocates for any particular position. The attorneys involved will likely be the most challenged by the competing roles of problem-solver and advocate. For example, in the pending federal legislation, lobbyists for apartment owners and real estate interests will oppose any funding for lead paint removal. Environmental groups will also seek to have lead paint removal to occur on an accelerated schedule, and to impose significant penalties for disobeying the law. In this context, attorneys that represent clients in this area will need to be intimately familiar with the many local, state and federal agencies involved in these issues.