CNYC | Lead Management: Federal Government Requires Lead Education by Renovators

Pursuant to Title IV of the Toxic Substance Control Act (TSCA), the Environmental Protection Agency published its Final Rule for Lead Hazard Education Before Renovation of Target Housing (406b) in the Federal Register on June 1, 1998, with June 1, 1999, as its effective date.

The EPA periodically presents clarifications of its rules in the form of questions and answers based on issues brought to its attention by affected parties. In June of 1998, the first set of these Questions & Answers began the explanation and interpretation of TSCA 406B. To address questions received subsequently, Part I of EPA’s Interpretive Guidelines appeared on May 28, 1999, just prior to the effective date of the Lead Based Paint Pre-Renovation Education Rule. In addition, EPA gave assurance of its intention to foster compliance through education and cooperation rather than impose punitive penalties for inadvertent failures to meet requirements. EPA promises additional interpretation to resolve questions that surface as the law is implemented.

The New York City Real Estate community has worked hard to make EPA aware of the complex and diverse special situations in New York’s aging high-rise housing stock. The regulations require “each person who performs a renovation of target housing for compensation to provide a lead hazard information pamphlet to the owner and occupant of such housing prior to commencing the renovation.” While this places the burden of compliance squarely on the “renovator”, it does not clearly resolve questions of responsibility when work is done by staff members of apartment buildings.

The Real Estate Board of New York has spearheaded the effort to secure reasonable answers to this and many more questions, working closely with the Washington-based National Multi-Housing Council. Ben Kirschenbaum, Esq. of Insignia Realty Services has been an active participant in this process, where his special knowledge of co-ops and condos has been important.

CNYC has been meeting with Mr. Kirschenbaum and with Dan Margulies of the Community Housing Improvement Program, Nicholas LaPorte of the Associated Buildings and Owners of Greater New York, attorney Andrew Brucker, property manager David Kuperberg, Al Pennisi, Esq. of the Federation of New York Housing Cooperatives, and Federation president Greg Carlson, seeking meaningful changes to propose to EPA as it modifies the law through subsequent guidelines.

WHAT FEDERAL LAW REQUIRES
An overview of the requirements and the interpretive guidelines affecting New York City cooperatives and condominiums follows. CNYC thanks the law firm of Schechter & Brucker, PC for its help in preparing this summary and the recommendations that follow:

CNYC SUMMARY:
EPA Rules for Lead Hazard Education
Before Renovation of Target Housing

For purposes of this law, the EPA considers a ‘renovation’ to be any change to the building that disturbs two square feet or more of painted area, including ordinary repairs and maintenance and removal of a door, window or wall. Scraping or sanding paint is a renovation, but simply covering an existing surface with paint - without scraping or sanding - is not.

Beginning June 1, 1999, the Federally mandated lead paint pamphlet must be distributed or made available before most renovations are made in pre-1978 housing.

I. For common area renovations, a notice must be given to each apartment in the area affected by the work, describing the renovation and providing a copy of the EPA lead information pamphlet. Common areas are considered those areas generally accessible to the residents of the building. They include hallways, stairwells, lobbies, laundry and recreational facilities, playgrounds, community centers and perimeter fences.

They do not include boiler rooms, elevator machine rooms, compactor rooms, and other areas not generally accessible to the residents. In multi-family buildings of 50 units or fewer, EPA considers that common area renovations affect all units.

In larger buildings, where renovation activity takes place within a common area which is used almost exclusively by an identifiable subset of residents, only those units will be deemed to be affected; however, to ensure notification of tenants who may enter a limited use common area but are not among the subset of tenants identified for individual notification, the renovator must post placards at all accessible entrances to the renovation work site which prominently convey the notification information.

A. The notice must be delivered to each affected apartment. It may be mailed, or handed to the resident or slipped under the door not more than 60 days prior to the renovation.

1. It must describe the general nature and location of the planned renovation with anticipated start and end dates, and must advise the resident how to obtain the lead paint pamphlet from the renovator at not cost.

2. If the scope of work changes, a revised notice must be given.

3. The renovator must sign a statement describing the steps taken to deliver the notice(s).

4. Acknowledging that neither residents nor owners and mangers are well served if duplicative notifications are issued repeatedly for essentially similar renovation activities, EPA encourages the use of Category Notices and Bi-Monthly Notices to provide residents with needed information in the most efficient manner.

a. Category Notices - When renovation activities all fall within distinct categories which are performed on a cyclical or recurring basis (e.g, hallway painting), they may be grouped into a single notice which describes the categories and provides a description of the locations affected.

b. Bi-monthly Notices - Since notification must be given no more than 60 days before renovation activities begin, to minimize the number of notices required, owners or managers may group all of the renovation activities expected to occur over a 60-day period into a single notice distributed every other month. Including renovation notices in, or as an attachment to, a pre-existing newsletter is acceptable provided that the cover of the newsletter prominently indicates that lead based paint renovation notices are contained in or attached to the newsletter.

5. Recognizing that “starting and ending dates of renovations” can be subject to unanticipated modifications, EPA will accept the use of flexible terms such as “on or about” (when the expected starting or ending dates occurs one week before or after the date given, “early/late [insert month name]” (to indicate which half of the month) and “ongoing for the 12 month period beginning [insert month name]” (when the renovation commences within 60 days of the issuance of the notice and continues throughout the 12-month period). If an interruption of more than 60 days occurs, a new notice will be required before the activity may restart.

6. In response to concern that the requirement of notice and pamphlet prior to commencement of work may interfere with prompt responses to requests for maintenance or repairs, EPA suggests that potential delays can be readily avoided either through minor revisions of existing administrative procedures or by employing “self-certification” delivery procedures.

a. An owner or manager may attach or incorporate the required acknowledgment statement into any existing repair request form or distribute the form and the pamphlet to all tenants on a one-time basis. Whenever a repair is needed, the tenant would simply fill out a repair request form and acknowledge receipt of the lead information pamphlet as part of the repair request form.

b. Alternatively, the self-certification provisions provide that a person delivering a pamphlet to a unit where an adult occupant is unavailable to sign an acknowledgement, the deliverer may sign and date a statement attesting to that unavailability and to delivery of the pamphlet to the unit.

B. Recognizing that some buildings may be unwilling to provide contractors with names of building residents or to allow contractor personnel to distribute notices and collect certifications, EPA has made provision for this responsibility to be delegated by the contractor to the building owner or management firm.

II. For individual apartment renovations, the renovator must give the notice and lead hazard pamphlet to the apartment owner; other apartment owners need not be notified.

A. If the notice is mailed, this must be done at least seven days before the renovation begins and a certificate of mailing should be obtained from the post office to prove compliance.

B. Personal delivery may be done at any time before the renovation begins. The renovator must attempt to get a receipt from the apartment owner; if this is not possible, the pamphlet must be left at the apartment and the renovator must prepare a certification of delivery explaining this circumstance.

III. Renovators must keep records of delivery for three years.

EXCEPTIONS TO THE DISCLOSURE RULE

The law does NOT apply to:

housing built after 1977;
renovations in areas and apartments certified free of lead paint by a federally certified lead paint inspector;
studio and efficiency apartments;
housing intended for the elderly or disabled where it is not anticipated that young children will be living;
emergency renovations required by sudden, unexpected events such as flood or fire which pose a health threat or significant property damage if immediate action is not taken.

OBTAINING THE LEAD HAZARD PAMPHLET
The pamphlet which must be distributed is entitled Protecting Your Family from Lead in Your Home. It is published by the US government; a single copy in English or Spanish can be obtained at no cost from the National Lead Information Clearinghouse at 1-800-424-LEAD. Photocopies of this pamphlet are acceptable, provided the text and graphics are reproduced in full.

Multiple copies of the printed pamphlet may be obtained for a fee from the Government National Printing office by phone at (202) 512-1800 or fax (202) 512-2233 or by writing to the Superintendent of Documents at P.O.Box 371954, Pittsburgh, PA 15250-7954. Identify the document by name and/or by its Government Printing Office (GPO) stock number 055-000-00507-9.

If you wish to present your own version of the pamphlet, it must first be approved by EPA.

WHAT SHOULD YOUR BUILDING DO?
The Requirements for Hazard Education Before Renovation of Target Housing clearly imposes new responsibilities on housing cooperatives and condominiums built prior to 1978 and for their management firms.

Because the “renovations” affected by this rule include some activities which have not heretofore been subject to board permission or to alteration agreements (e.g., painting when sanding and scraping take place or minor repairs that affect more than two square feet of painted surface) decisions will have to be made concerning the extent of board responsibility for verifying that contractors, particularly painters, provide requisite documentation to apartment owners. At a minimum:

Building staff must be advised of the new regulations so that “renovations” are not performed without proper notice.
Apartment residents must be made aware of the new requirements.

Because the cooperative or condominium itself will be considered the “renovator” when building staff and/or regular contractors who perform repair work, procedures should be established that ensure compliance with the regulations when work that may fall under the EPA rules is performed in the building:

a supply of pamphlets should be ordered and forms should be devised for staff use acknowledging receipt of the pamphlet by the apartment resident.
a system should be established to coordinate records relating to lead within the building.
Many banks also require lead based paint maintenance programs for pre-1978 buildings that seek to refinance their mortgages, including the designation of a lead paint coordinator to maintain appropriate records and ensure deliver of appropriate forms and reports.

DEBATE CONTINUES IN CITY COUNCIL ON LEAD REMEDIATION
As the Federal government implements this program of education about the hazards of lead based paint, the City Council is working on legislation to ensure that buildings are well maintained so that children under the age of six are not subject to the disastrous results of ingesting lead based paint chips. Proposed legislation is considering standards for lead safety, including air quality criteria, inspection schedules, notification requirements, and the obligation to swiftly and safely abate peeling and chipping painted surfaces where lead based paint may be present.

Because New York City outlawed the sale of lead based paint in 1960, the proposals assume that dwellings erected prior to January 1, 1960, will contain lead based paint, unless proof is presented by qualified authorities that the dwelling is lead free.

As the Summer 1999 Newsletter went to press, debate still raged on many aspects of the proposed requirements. CNYC will continue to monitor this issue and will keep members informed.