Know the facts about lead abatement.

Owners should be aware of the issues arising from the fact that children exposed to lead paint and other products containing lead can suffer irreparable brain damage. Lead poisoning can result from any of a variety of sources - consumption of lead paint chips, breathing of lead paint dust, lead exposure from water lines, and, as recently reported in the media, by eating lead-contaminated crayons that were produced in China.

In an effort to halt such potential damage from lead paint, the New York City Department of Health (DOH) has taken steps to identify all children at risk and has issued comprehensive new regulations, effective March 16, 1994, for safe lead-paint abatement under the New York City Health Code.

The new regulations apply to all abatement orders issued by either the DOH or the New York City Department of Housing Preservation and Development (HPD). They cover a wide range of topics: methods of abatement (wet scraping and repainting, removal, enclosure, encapsulation, etc.) notice requirements, safety standards, cleanup procedures, filing procedures and record-keeping.

While abatement-procedures are the same for both DOH and HPD orders, the mechanisms that trigger abatement work are different at the two agencies. Evidently, HPD is permitted to presume the existence of lead paint and order abatement work by owners under certain circumstances. For example, if an inspector reports the existence of chipping paint in any building built prior to 1960 (when a law was passed banning use of lead paint) where children under the age of seven reside, the presence of lead paint is presumed: No further testing of painted areas for lead content is required, nor does any resident child have to show elevated levels of lead in the blood.

Abatement work ordered by the DOH is usually in response to a physician reporting to the DOH the name of any child with an elevated level of lead in the blood. The DOH now requires that all children under the age of seven be tested for lead poisoning and that a report be made to the DOH when elevated levels are found. In addition, the DOH has dramatically lowered the level of lead considered to be dangerous.

When there are indications of lead hazard or poisoning, the DOH will send an inspector to the child's home to perform testing of painted surfaces to establish if lead concentrations fall above or below the acceptable threshold. If they are above, the owners will be ordered to do immediate abatement work under strict conditions. This work is very costly.

We strenuously support the city's determination to protect children from lead poisoning and The Bronx Realty Advisory Board (BRAB) whole-heartedly endorses abatement work where appropriate. However, we have been informed by experts in the field that often testing methods used by the DOH are flawed: Lead paint levels are found to be dangerous in many cases where, in actuality, the levels are within acceptable standards. Consequently, unnecessary and costly abatement work may be ordered for an area that actually is safe, and owners may be required to correct what is a non-dangerous condition.

But, most importantly, when tests are flawed, the actual source of a child's lead poisoning will not be corrected and will continue to harm children.

Testing is done now by either a chemical or X-Ray Fluorescent (XRF) Analyzer. Evidently, when using the XRF method, errors occur because DOH equipment often is antiquated and/or not properly calibrated. For example, lead readings form lead pipes in a wall behind a painted surface are not subtracted from the lead paint readings.

BRAB believes that under no circumstances should owners accept an agency's findings of a lead paint hazard without having their own expert check out the findings.

In an effort to be more fully informed, BRAB's officers and directors met recently with representatives of environmental testing companies that have wide experience in their field. We asked how owners can protect themselves from unnecessary lead abatement work.

Following are their suggestions:

* As a preventative measure, impose a standard of care;

* Maintain all lead paint surfaces intact;

* Adequately train maintenance people to do corrective work;

* Monitor all buildings on a regular basis.

Begin by immediately inspecting the entire building for chipped paint. If any is found, order repair work now. This should include scraping, preparation of surfaces and repainting. Remember, in pre-1960 buildings, any chipped paint is presumed to be lead based. Before any repair work is commenced, make certain that your repair people are adequately trained. Finally, require your super to re-inspect the entire building at three-or four-month intervals and report in writing any condition that needs work.

If HPD or DOH orders you to do abatement-work, do the following:

* Familiarize yourself with the one-page Protocol promulgated by the DOH. The Protocol is called "Lead Poisoning Prevention Program," and it is to be followed when contesting DOH test results.

* Note that the time-frame to notify the Lead Poisoning Prevention Program (LPPP) of your objection to test results and of your intention to contest them is only three days. Results of your own testing must be submitted within five business days. These time frames are strictly enforced.

* Note, too, that if the new test results for your building are below threshold levels, the LPPP will perform confirmatory tests and, based on these results, the DOH abatement order could be modified.

* If the DOH's test results are correct, a work plan will have to be filed with the DOH or any other designated agency at least 24 hours, but no more than 96 hours, before abatement work commences.

The DOH's Regulations of March 16, 1994 are very specific regarding every aspect of the abatement process, from notification requirements to when re-occupancy is permitted. Owners should follow the regulations precisely. They should be aware that insurance companies are now excluding liability coverage for lead poisoning or are capping liability at a modest amount at a time when lawsuits are proliferating. Recently, jury awards on lead poisoning have been incredibly high. Reportedly, in one case no cause-and-effect had to be proven. The owner was found to be negligent simply because chipped-paint conditions existed.

We want to emphasize that we are not objecting to lead paint regulations nor are we disputing the danger of lead paint. But, owners should take all steps to limit their liability where possible. We recently urged owners to exercise the right given them by the NYC Administrative Code to obtain an affidavit from their tenants listing the name and relationship of all persons living in each apartment. In addition. the age of anyone under 21 years should be reported. The possibility of lead-paint poisoning makes it more imperative than ever that owners know who occupies their apartments - particularly children. You should know if children residing in your building legally belong there.

In addition, because of potential lead poisoning liability, BRAB urges owners to carry their properties under a corporate name and remove themselves from personal liability.

We expect the LPPP to be clarified and modified in the months to come. Also, as abatement work is ordered and done, procedures should be more fully understood. Owners should stay abreast of all legislative and regulatory developments regarding lead poisoning.

Should you have any questions, the number of the DOH LPPP is: 212-285-4602 (BAN-LEAD).