New lead law for residential owners.

New York State has expanded the scope of its lead prevention and abatement program, with the recent enactment of the Lead Poisoning and Prevention Act. The new law, which takes effect on April 1, 1993, is likely to have a significant impact on the owners of residential real property. (The law does not apply to commercial property).

The law directs the New York State Department of Health (DOH) to develop standards for comprehensive inspection of residential property (including multiple dwellings as well as single-family homes) for lead contek in paint, soils and water pipes. Both owners and occupants must be notified in the event that any unacceptable levels of lead are detected.

DOH has also been granted the authority (though not mandated) to require that all contractors performing lead abatement be licensed, and to establish a licensing program. The new law also increases the scope of regulation by empowering DOH to compel the removal of lead-contaminated soil and water pipes. Under previous law, DOH's authority in this respect was limited to lead-based paint.

The new law also creates a statewide program for screening of children and pregnant women for elevated lead levels, and sets new restrictions on the lead content of certain consumer products. It also establishes an advisory council on lead prevention, with representatives from state agencies, health and environmental organizations, community groups, business and labor.

While it creates broad mandates in a number of areas, the Lead Poisoning and Prevention Act is not very specific with regard to the implementation of these mandates. For example, there is nothing in the act that indicates when inspections of residential property must be conducted. This issue is left to DOH to resolve, presumably by regulation. DOH could set up a deadline (perhaps five years) during which all residential property must be inspected, although that is unlikely. Alternatively, DOH could identify certain events that would trigger the inspection requirement such as renovation and/or transfer of ownership of the property. It is also possible that DOH will require expedited inspection of multiple dwellings over a certain age (eg. - 40 years) or exceeding a designated number of units (eg. - 100 units). Of course, all of this is speculation until DOH actually proposes regulations.

Although the act does not mandate that DOH establish licensing requirements for lead abatement contractors, it is reasonable to assume that the agency will do so. It is quite likely that DOH will pattern its licensing requirements after the program established for asbestos abatement contractors by the New York State Labor Department. This would include specified training programs and written examinations. It may also include a requirement that each individual lead abatement worker be licensed, in addition to the contractor that employs the worker. DOH may also, by regulation, require property owners to notify the agency in advance of any lead abatement project, and to identify the licensed contractor that the property owner intends to employ. The regulations may also include substantive technical requirements for the carrying out of lead abatement projects, for the purpose of insuring the safety and health of workers, building occupants and passerby, with inspections of ongoing projects, similar to the requirements of the state's asbestos regulations. DOH could conceivably impose liability on property owners, as well as contractors, for violation of those technical requirements, which could result in substantial regulatory penalties.

One significant issue that is certain to generate controversy will be the determination of the concentration of lead in paint, soil and pipes that will trigger the requirement of abatement (i.e. - what will be the "action level"?) Furthermore, what concentrations must be reached before abatement can be deemed complete? (While this issue is not germane to removal of paint or pipes, it is of critical significance in the remediation of contaminated soil). In any area of environmental regulation, the issues that are typically the most difficult to resolve are the setting of an action level, and the determination of "how clean is clean".

Finally, it should be noted that the enactment of this new state law does not preclude municipalities from adopting their own, more stringent local ordinances. New York City has been very active in this respect, historically. Given the strong analogy between lead abatement and asbestos abatement, and the existence of a very stringent set of city asbestos control regulations, it is reasonable to expect the city to implement a similar program for lead.

The specific requirements of the state's expanded lead abatement program will unfold in the near future, as DOH and the newly-created advisory council begin to develop regulatory standards. Regardless of the content of those standards, it is clear that owners of residential property now face a new layer of comprehensive, complex and stringent regulations.