Court reverses lead paint law decision, but issue lingers.

Over one year ago in a widely publicized case, the New York Supreme Court, 1st Department, issued a judgment that annulled New York City's newly enacted lead-based paint law (Local Law 38). The case was immediately appealed to the Appellate Division, and throughout 2001 there was confusion as to which lead paint regulations were in effect.

On March 26, that decision was reversed on appeal. The Appellate Court's unanimous opinion supported what is described as the central premise of Local Law 38 - namely that monitoring and containment of lead paint, rather than total removal, reduces environmental threats to human health.

Judge John T. Buckley, in his opinion for the court, wrote: "Nullifying Local Law 38 would reinstate the prior lead-based paint prevention law (Local Law 1), which was based on removal, not containment, and thus pose a greater threat to public health. If affirmed, it would place the city in immediate contempt of outstanding orders in former litigations over Local Law 1, and leave the city without any effective and safe methods of dealing with the persistent lead paint hazards."

The court also found that the City Council sufficiently reviewed all salient issues including effects on the environment before crafting Local Law 38, which struck a "suitable balance of social, economic and environmental factors."

This long-awaited decision, however, did not end the controversy because a new bill, known as the New York City Childhood Lead Poisoning Prevention Act of 2002 was simultaneously introduced by a majority of council members for enactment by the new City Council. This proposed bill, which adds significant new definitions, and new obligations and requirements on owners, would replace Local Law 38. It would put into law what the New York City Coalition to End Lead Poisoning and other public and environmental groups involved in the litigation failed to achieve in the courts.

Local Law 38 was temporarily annulled on Feb. 21, 2001. The lower court was persuaded that, apart from the universally acceptable shift from abatement to monitoring and containment, there were significant items in the former lead poisoning prevention law (Local Law 1) that were changed or eliminated when the City Council replaced it with Local Law 38. Among these were the elimination of lead dust from the definition of lead hazards, the reduction of the age of children to be monitored from under seven to under six years of age, the reduction of the amount of lead in paint before it reaches the legal definition of lead-based paint, and allowing owners to remove lead-paint violations without necessarily using the safety procedures proscribed by HPD and the NYC Dept. of Health during the first 21 days after the violation is issued.

Judge York of the Manhattan Supreme Court found that these changes should have caused the City to conduct and issue an environmental impact study, instead of issuing a negative declaration that Local Law 38 would have no negative affect on environmental threats to human health.

The Appellate Court disagreed, and found that ample studies and debates were held before Local Law 38 was adopted. Rather than agreeing or disagreeing with the definitions, standards, rules or methodologies contained in the law, the Court felt they only had to decide on whether the record supported a full airing of arguments before the final version of the lead paint law was written.

The coalition of groups arguing against Local Law 38 in court were also arguing their case to sympathetic newly elected City Council members. The November election replaced the entire Council, and the advocates for stricter lead paint rules saw this as an opportunity to put all their ideas into law.

The proposed Childhood Lead Poisoning Prevention Act is sponsored by 30 Council Members: Perkins, Lopez, Quinn, Reed, Boyland, Rivera, Brewer, Jackson, Liu, Yassky, Barron, Reyna, Clarke, Sanders, Recchia, Vann, Katz, Gerson, Gioia, Baez, DeBlasio, Serrano, Foster, Monseratte, Jennings, Seabrook, Davis, Addabbo, Moskowitz and Koppell. With such majority support in the Council, it is possible that New York City may have yet another lead paint law in the near future.

Significantly, the proposed new law adds provisions that would extend to all schools, day care centers, playgrounds, common areas in multiple dwelling buildings, and even to private homes.

In addition, the proposed new law would add lead dust to the definition of lead hazards, and would make the definition of lead based paint more stringent. Conditions that could cause lead dust would be added to all visual inspections. Dust clearance tests would be required as part of an owners' certificate of correction of a violation. Inspections would now look to underlying causes of deteriorated, peeling paint or evidence of friction or chipping, and require owners to correct those conditions.

Upon any vacancy or turnover, an owner would be required to make the apartment lead safe, including removing or covering all lead paint on friction surfaces of windows and doors. The New York City Department of Health's Safety Regulations would apply whenever lead hazards are repaired or abated, and during interior demolition work - including all apartment unit renovations.

Owners would be required to provide temporary relocation of tenants during lead removal, if the work cannot be performed without risk to the tenants.

The law would raise the age of children covered back to less than seven years of age. It would require additional action by landlords each year if residents failed to respond to the annual notice inquiring if a child resides in a unit. For noncompliance with the distribution of notices and the inspection provisions, owners would be subject to fines and penalties, including imprisonment for up to six months. Inspections would, in some instances, be required more frequently than once per year. Reporting and record keeping requirements would be increased.

The law would have provisions for disposal of lead paint debris. Currently, Local Law 38 has no disposal provisions.