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Council of New York Cooperatives & Condominiums
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"Green” Laws, Lead Paint, Backflow Prevention, Bedbugs

Published: Autumn 2010

COMPLYING WITH NYC’s “GREEN” LAWS

CNYC thanks Phil Vos for the following article explaining New York City’s recent set of laws aimed at evaluating energy use in buildings of 50,000 square feet or more, with a view to reducing their carbon footprint and improving their energy efficiency. Mr. Vos coordinates outreach for the energy firm Bright Power Inc.

Between 2011 and 2013, owners and managers of existing properties in New York City will start to feel the impact of two energy-related laws signed by Mayor Bloomberg at the end of 2009 as part of the Mayor’s “Greener, Greater Buildings” program which is part of PlaNYC.

  • Local Law 84 of 2009 mandates annual energy benchmarking, starting in 2011.
  • Local Law 87 of 2009 mandates energy auditing and retro-commissioning every 10 years, starting in 2013. Buildings will report according to tax block number, so that only about 10% of “covered buildings” file each year.

Properties subject to the requirements of these laws include:

  • buildings over 50,000 square feet in area;
  • two or more buildings that have the same owner, that together exceed 100,000 square feet and are on the same tax lot; and
  • two or more buildings governed by the same board that together exceed 100,000 square feet, regardless of their relative location.

Following is a quick primer on what owners and managers need to do to comply with the laws.

Local Law 84: Benchmarking
An energy benchmark provides a snapshot of a building’s energy performance over a given period of time. A property profile and historical utility billing information are entered into a software tool, which generates a report analyzing the building’s energy use, and comparing it to that of similar properties in the tool’s database.

Under Local Law 84, all covered buildings are required to submit an annual benchmarking report to the Department of Finance, starting in 2011. Due no later than May 1 each year, the report will cover energy use for the preceding calendar year. It will look at the entire building: common areas, residential tenant spaces and any commercial spaces. The law specifies that billing information must be requested from separately-metered commercial tenants. While no such specification is made for separately-metered residential tenants, energy use information on these tenants is required; building owners or managers who don’t want to ask their residential tenants for this information should request an aggregated bill for the building from utilities.

Local Law 84 requires the use of Energy Star’s Portfolio Manager, an online benchmarking tool developed by the US Environmental Protection Agency (EPA). Users enter a property profile, along with information from the utility bills for the prior year. Portfolio Manager is designed to calculate how much energy the building is using overall and, based on that measurement, to rank the building relative to other buildings in its database. However, the ranking is available only for commercial buildings at this time; residential buildings will instead receive a value for overall energy use in kBTU per square foot.

Once Portfolio Manager has generated a report for the building, the user will upload that report to the NYC Department of Finance, via a direct link being developed by the City.

Note that for those interested in understanding their buildings’ energy use beyond the City’s basic requirements, there are other, more sophisticated benchmarking tools than Portfolio Manager available. These tools can offer a variety of indices of energy use, rankbuildings, and even indicate which major end-uses— such as seasonal heating and cooling, and non-seasonal baseloads—are using energy efficiently and which aren’t. Such tools provide the user with the extra information to identify energy and money saving opportunities.

Local Law 87: Auditing & Retrocommissioning
An energy audit sets out to identify cost-effective system improvements and operational changes that will save energy—and money—at a property. Qualified auditors visit the building to assess all the energy-related systems, including heating and cooling, lighting, air distribution and ventilation, hot water systems and the building envelope; they also consult with maintenance personnel and residents for feedback on potential issues. The auditors then generate a report analyzing the findings of the site survey, and recommending energy efficiency measures for the property. Information on incentives available to help pay for the measures is generally also included.

Retrocommissioning is a process of optimizing the performance of building systems by correcting deficiencies. Where retrofitting might, for example, require replacing a boiler or HVAC unit, retrocommissioning involves making sure that the existing equipment is performing to specification; this may require tuning controls, cleaning filters, or making appropriate repairs, relatively simple measures that can be very effective in saving energy.

Under Local Law 87, covered buildings will be required to undergo an energy audit every ten years, followed by a retrocommissioning process, and submit reports on both in years corresponding to the last digit of their tax block number: ( buildings with tax block numbers ending in “4” will be required to report in 2014, 2024, and so on) . This requirement begins in 2013, so the first group of buildings to report will be those with tax blocksending in “3”.
The City has also created an “early reporting option”, under which ANY building may be reported in 2013, regardless of their tax block number; these buildings will then not be due to report again until their second originally-assigned reporting year.

To comply with Local Law 87, building owners must have an energy audit conducted by an approved auditor. Then, based on the audit report, an “approved retrocommissioning agent” (final definition by the Department of Buildings is pending) will implement the retrocommissioning measures, and provide the owner with an appropriately certified report. Both documents must then be submitted to the Department of Buildings between January 1st and December 31st of the reporting year.

Audits and retrocommissioning may be done in advance, as long as each takes place no more than 4 years before the report is submitted; the retrocommissioning process must follow and be based on the audit.

A Work In Progress
It is worth noting that “rule-making” for the new laws is still in progress by relevant City agencies; issues yet to be finalized include penalties for non-compliance.

Further Information
The complete legislation can be found on the Department of Buildings website, at www.nyc.gov/html/dob/html/reference/recent_code.shtml.

EPA LEAD PAINT
CERTIFICATION
WIDELY REQUIRED

The federal Environmental Protection Agency (EPA) is charged with protecting the American public from environmental hazards. It has the power to promulgate rules and regulations to implement federal legislation. In 2004, strong legislation was enacted to control the dangers of lead paint.

Lead poising is a serious affliction. Very small children can suffer permanent damage from it. Once this was known, the use of lead based paint was banned. This occurred in 1960 in New York City and in 1978 nationwide. Prior to that time, lead based paint, though expensive, was known to be long lasting, so it was often used in apartment buildings. Today, many building built prior to 1978 may contain lead based paint, usually in coats below the visible surface.
In April 2008, the EPA issued its Lead Renovation, Repair and Paianting (RPP) Rule to protect against the risk of disturbing lead dust and chips during common renovation activities. It required the use of lead-safe practices when surfaces that might contain lead based paint are disturbed, and required that contractors, building staff, painters, and other professionals who were likely to be disturbing lead based paint in the course of their work to become trained and licensed by EPA standards.

Effective April 22, 2010, any building staff or contractors who perform renovation, repair, and painting projects that disturb lead-based paint, and any staff members overseeing such work in any building built prior to 1978 must take an 8 hour course and pass a test to be lead-certified by EPA. Every structure built prior to 1978, will be assumed to contain lead based paint unless it has been properly inspected and is certified to be lead-free. The EPA website specifically notes that window replacement must be done by lead-certified contractors.

There are substantial fines for failure to comply with this EPA requirement. No contractors should be permitted to work in a pre-1978 building without having first presented a copy of their EPA certification. The Superintendents and Handy Persons in pre-1978 building who perform repairs that disturb painted surfaces, should take this class and be certified. Local 32BJ provides this instruction for its members at the Thomas Shortman Training Fund where 32BJ member can take a wide variety of excellent classes at no cost.

To learn more about the EPA lead paint requirements, visit the EPA website at www.epa.gov/lead/pubs/renovation.htm, where you can download the EPA pamphlet Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools. If your pre-1978 cooperative or condominium undertakes repairs that disturb lead paint in public areas, this pamphlet must be distributed to all residents that may be affected by the work, and appropriate professionals using lead-safe practices must perform the work.

BACKFLOW PREVENTION DEVICES NOW WIDELY REQUIRED

DEP Backflow PreventerNew York water is of very high quality. Its purity is protected by many layers of laws and regulations. The State Health Code has provisions that date back to the 1990s that require the installation of backflow prevention devices in buildings that contained laundries or dry cleaning establishments, doctors’ offices , etc, to prevent contaminated water or chemicals from flowing back into the City water system if a sudden change of pressure should occur. .

The City Council addressed this issue last year and greatly expanded the instances where backflow prevention devices are now required. In December, Mayor Bloomberg signed Local Law 76 of 2009 requiring any building with a “cross connection”, which is broadly defined as a “physical connection or arrangement between two separate piping systems where one system contains potable water and the other contains steam, gas, a chemical, or water of questionable safety, where there may be a flow from one system to the other” to install, inspect and maintain a backflow prevention device.

DEP Notices
Pursuant to this legislation, New York City’s Department of Environment Protection (DEP) has begun an enforcement campaign targeting buildings with boilers that use chemical treatment, water-cooled equipment and chillers. This has brought notices to many residential buildings of the need to install a backflow prevention device within 30 days to avoid the imposition of fines.

Any building that meets the criteria of Local Law 76 will have to install a backflow prevention device on every water line. The device itself is costly – DEP’s own estimate looks at low thousands in very small buildings up to tens of thousands in large buildings. But there’s more! DEP charges a hefty application fee and requires that a registered architect (RA) or licensed professional engineer (PE) submit plans for the installation, which must, of course, be performed by a licensed master plumber (LMP).

Once installed, your Backflow Prevention Device must be tested by a New York State Certified Backflow Prevention Device Tester. A list of these can be obtained from the State Department of Health at 1-800-458-1158 extension 27650. When testing is successfully completed, a test report must be filled immediately with DEP (within 30 days of device installation).

The backflow prevention device must be properly maintained (there’s a manual) and will be subject to annual testing and inspection by a certified tester.

Exemptions are Possible
Some buildings may NOT need to install these devices. To determine whether your property requires such a device, you must retain the services of a licensed professional engineer or a registered architect or a licensed master plumber or request a property inspection from DEP (by calling 718-595-5437). If your expert determines that a backflow prevention device is not required, then that professional must send DEP on your behalf, on their letterhead, an exemption request stating how all necessary exemption conditions have been met. Exemption requests should be filed according to DEP’s exemption guide, which can found on the DEP website at www.nyc.gov/html/dep/html/forms_and_permits/backflow.shtml or requested by mail upon calling 311.

More Time
Buildings receiving the alarming letter from DEP requiring the installation of a backflow prevention device within 30 days need not move quite that quickly. DEP will not issue a violation if it is alerted to the fact that a registered architect or licensed professional engineer has been engaged to help the building with this issue.

Possible Mitigation
As buildings all over the City learn of the additional requirement and the costs involved, they have reached out to CNYC and to their lawmakers, in the hope that some relief may be obtained, either in the form of more time to comply, or a greater field of exemptions or incentives to help lower the cost. CNYC will continue to work toward this reasonable goal and will keep members informed.

BEDBUG DISCLOSURE

Bedbugs are everywhere, and seem more and more difficult to eliminate. Immediate reporting of even a suspicion that bedbugs are present will help your building cope effectively with each invasion. An exterminator with bedbug expertise will probably make repeated visits to ensure that the pests are all gone. Clothing, books, papers, furniture, etc. where bedbugs may hide must be properly cleaned or disposed of (City law requires ALL mattresses to be encased in plastic before being put out on the street for pick-up).

The Department of Health (www.nyc.gov/health) has several online reports about bedbugs. The Department of Housing Preservation and Development (HPD has free courses on how to identify, rid and protect your home from bed bugs. (http://www.nyc.gov/html/hpd/html/courses/courses.shtml.) And in 2009 the City Council established a Bedbug Advisory Board, whose extensive report can be found at http://council.nyc.gov/downloads/pdf/bed_bugs_report_2010.pdf.

Since September, 2010, there is a new new requirement for reporting bedbug infestations. Assembly member Linda Rosenthal sponsored State legislation that requires bedbug disclosure forms to be given “to each tenant signing a vacancy lease” in the City of New York. The disclosure form DBB-N (9/10) can be downloaded at http://www.dhcr.state.ny.us/Forms/Rent/dbbn.pdf

Ms. Rosenthal did not intend her legislation to apply to the sales of cooperatives or condominiums, but a ruling by state housing authority in October has interpreted the law to apply to sales of cooperatives. The housing authority contends that since co-op buyers actually purchase shares in the corporation and receive a proprietary lease which entitles them to live in the apartment, this law should be applied. Condominium sales are structured differently, as real property actually changes hands; this legislation wouldn’t entitle condo buyers to receive a bedbug disclosure form.
At CNYC’s 30th Annual Housing Conference, there will be a morning class on Combatting Bedbugs and afternoon classes on New Codes in NYC and Shereholders v. Boards on issues including Noise, Odors, Water Pentration and Bedbugs. The Conference brochure is available here.

 
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