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 EPAs 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 Yorks
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:
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
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
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
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
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
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
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
- 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
- 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
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.