Industry concerned over lead regulations.

The State of New York issued revised lead abatement regulations in early January and still industry leaders are concerned about their implementation. The regulations assume that certain testing methodology is unreliable at low lead levels and treats every hole in the wall as a major abatement job.

In cases where the New York City code differs, there is still no clarification as to which one will take precedence, although normally it would be the stricter code.

"We don't yet know what affect the state code will have on the city," worried Dan Margulies, executive director of the Community Housing Improvement Program, whose member owners are being affected by these laws.

"If the State says, 'if the level is below 2 on an XRF, it is not valid,' that is a tougher standard of testing," he noted. "The state regs acknowledged that XRFs are not valid tests. I don't see how the city can get off saying it's valid for the city but not the state or the feds."

Agreed Joseph Strasburg, president of the Rent Stabilization Association, "The bad news is the abatement protocol is stricter and there is no definition of a small job, so everything requires a major production for sealing off rooms," he said. "The better news is the testing protocol recognizes the XRF machines are unreliable at low levels and requires a confirming lab test before abatement is ordered."

At the core of the issue is the reliability of X-ray florescence testing methodology and machinery. While even State officials concede the XRF, as it is known, is unreliable when dealing with low lead levels that they identify as a mean reading of 2 milligrams of lead per square centimeter or less, lead abater Jeffrey Brown nevertheless says certain types of XRF equipment are more reliable and cheaper than laboratory tests.

"We use a site spectrum analyzer and the inconclusive zone is .8 to 1.2, and this instrument automatically corrects for substrate effects," he said.

Brown, vice president and chief operating officer of Environmental Inspection Authority, a national, full service environmental inspection and risk assessment company with offices in New York, Chadds Ford, PA and Ft. Lauderdale, says a major part of the problem is that testers are poorly trained in the use of the fragile equipment.

Richard Svenson, director of the New York State Bureau of Community Sanitation and Food Protection, explained it's more typical in finding lead where there are high number readings. "It's got a lot to do with sampling, and gets to do with technical research," he noted. "They are re-looking at it in New York City, and are looking at the 2."

Brown also criticizes the State regulations for failing to define the methodology for collecting paint chips, even though there is a recognized standard. Paint chip collection can vary in size and depth to the substrate, he noted, where one would more likely suspect lead to be present.

The standard for obtaining paint chips is to take one square inch down to the substrate and have it all analyzed, he said. "The State regs say take just one gram, and it could be just surface paint and have no lead in it," he explained.

"With XRF, you can take many more samples and have a much broader survey and the cost per sample is $2 to $5, whereas a lab sample is anywhere from $10 to $50. The XRF is also available immediately," he said.

The state also says a reading of 1.6 micrograms of lead or greater is satisfactory evidence from a substrate corrected XRF test, but the Federal Government says 1.0 is the Federal action level for a positive reading. "Federal laws are more strict, so in essence this State law is not a worthwhile piece of legislation, added Brown.

Many New York City owners are finding the city's XRF tests to be so unreliable that they have taken to hiring labs to retest in order to have city findings nullified. Department of Health comes in only when a child has been identified as having a high blood lead level. That is defined as a reading of 20 micrograms per deciliter of blood.

The city has also been obstinate in insisting the apartment is at fault, even when tests have shown otherwise. The state, on the other hand, is recognizing that children sleep over at grandma's house and spend time at pre-schools and kindergarten classes. According to Susan G. Rosmarin, counsel to John E. Osborn, P.C., who concentrates in environmental law, state law defines "dwelling unit" as houses where a child sleeps, child care facilities and pre-schools. "With the state regs, they are trying to go beyond the obvious and go where the child is really getting poisoned. Otherwise, what have you accomplished in regards to health?," she asks.

The city's Housing Preservation and Development agency also presumes the paint is lead when it is chipping or peeling, issuing violations accordingly. Owners simply hire labs and the violations are dismissed. "It's going to be harder to fight the state ones," said Rosmarin.

While the city permits encapsulation with the approval of the DOH, Rosmarin says DOH "won't give you permission to encapsulate," even though it is being used as a temporary measure for risk reduction that does not require their approval. The state, however, will be looking more towards encapsulation as a significant way to abate without raising more lead dust.

"It is more expensive than painting but easier than pulling it out," she said. "It will provide some cost savings."

The state provides no exceptions for small jobs, noted Marguiles. The state regulations are also less specific than New York City's about relocation of people in the apartment while abatement is taking place.

Rosemarin believes the state may be making people do more intense abatements because they aren't used to doing smaller jobs.

"You've got to do your homework," said Svenson. "Abatement could cause more of a problem than existed previously."

Rosemarin predicts there will start to be claims made against abatement contractors. "Abatement is one of the high risk activities that tends to poison people," she noted. "There are health people who are asking the city not to order abatement of every tiny thing. If you move a painting and create a hole, you are supposed to abate, so there are people meeting with the Department of Health trying to get them to back off a little."

Meanwhile, the City Council is still playing tug of war over new lead abatement requirements. Sources report that reason has prevailed and windows will not have to be entirely replaced when lead is found on the surfaces, as was the Mayor's wish. Nevertheless, until the Council passes the bill and the Mayor signs it, anything can happen.