Proposed HPD lead regs issued; intact paint abatement rule called 'devastating.' (New York, New York. Department of Housing Preservation and Development)

After nearly 15 years and numerous lawsuits, the City's Department of Housing Preservation and Development (HPD) has issued revised draft rules to Local Law One that pertains to lead-based paint. While they both agree the current law is onerous - and the new rules that are being forced because of lawsuits underscore that fact - the City Council and Mayor have not yet agreed on a measure that would replace it, although some movement is expected next month.

The new rules would require owners to not only abate lead paint that is cracked, chipping or peeling, but to abate otherwise intact paint when lead is found to be present.

"These rules are devastating," complained Joseph Strasburg, president of the 25,000 housing owner members of the Rent Stabilization Association. "It would require owners to de-lead their apartments, not only where there is flaking, but where there is intact paint. These regulations require owners to go beyond painting."

Under current rules, intact paint is virtually ignored unless a blood poisoned child triggers a Department of Health inspection and those inspectors find a lead condition exists.

But according to the RSA, when owners challenged the city tests with those conducted by an independent lab, 70 percent of the apartments were found to be lead-free. "The children are lead poisoned, but not from the apartment," said Frank Ricci, director of government affairs for the owner's group. "It could be from a variety of sources."

Nevertheless, under the new rules, owners of those apartments where intact paint is found to contain lead will have to encapsulate the lead, probably by re-sheetrocking the apartments.

The abatement methodology for chipping and peeling paint requires a minimum of wet scraping and repainting, although it also could require the replacement of sheetrock.

The proposed rules, however, would create a situation in which intact paint is treated for the most part with a more expensive methodology than if it were flaking and peeling.

"This means there is a higher standard of treatment for intact walls that pose no hazard, than for peeling walls that nose some hazard," explained Dan Margulies, executive director of the Community Housing Improvement Program (CHIP) that was organized years ago by frustrated owners to "chip" away at rent stabilization laws.

Attorney Paula Elaine Kay, an attorney with Belkin Burden Wenig & Goldman and former counsel to the Housing Committee at the City Council, explained the proposed rules alter the manner in which lead has to be abated. "They chance the way in which it has to be dealt with, so it's not just an abatement," she said. "If its intact, then you are going to encapsulate everything."

But, she noted, since under the rules buildings are prioritized with those having intact lead paint d the bottom, "how many will they go after? But it's a real problem if the inspectors are already in the apartment."

The key section 11-04 states: "... provided, however, that lead-based paint that is not peeling shall be abated only by removal, enclosure, encapsulation or replacement."

The proposal would create a triage for complaints. A Priority 1 complaint would be for a dwelling unit in a building erected before January 1, 1960 and a child of six years of age or under. A Priority 2 complaint would be where the building was erected after January 1, 1960 with a child of six and under; and a Priority 3 complaint would be a building of any age with no peeling paint and a child under six.

"They are now prioritizing what buildings will be inspected, knowing they don't have enough inspectors," sighed Kay.

According to Michael Schmelzer, president of Tryax Realty, who was a member of the HUD Lead Task Force, the costs to abate the two million housing units in the city by sheetrocking would come to between $30 billion and $40 billion dollars.

"It's such a staggering amount it defies comprehension" he said. "They are suggesting that everything be sheetrocked and it's a financial disaster as well as bad public policy." As a pass through, he predicted, it would end up costing tenants $1,500 to $2,000 each. "The Task Force said lead paint could be managed in place without a risk to the inhabitants."

The RSA believes it would cost $6 billion just to abate New York City-owned housing alone, and if the City Council fails to be responsible and act quickly, Strasburg cautioned, the requirements of the new rules will impoverish not only the city, but private owners as well.

"What government has mandated for abatement will bankrupt people," warned Strasburg. "We will be advising our owners to create limited liability corporations. People will then say, `Take my building,' and no one will remain in this business [of affordable housing.] We can protect a child without resorting to this fiscal ruin for the city."

According to the New York State Health Department's Director of the Childhood Lead Poisoning Prevention Program, Nancy J. Robinson MPH PhD, in 1994, of 1.55 million children under six in the state, 480,000 or 31 percent were screened for their blood lead levels.

Of those, .9 percent or 4,519 children that were first screened had blood lead levels over 20 grams per deciliter and a little under half of those were city residents.

Of the 258,000 children first screened in New York City, 2,142 or .8 percent had elevated blood lead levels.

The local health departments report to the state and the state aggregates the number. While city laws define lead poisoned children as those "six and under," the state and city compile the records as those "under six."

"The statistics support the fact [lead poisoning] is not as widespread a problem as advocates believe it is," said Strasburg. "it only affects certain, primarily poorer areas of the city. And the problem here is dust, it's not the paint."

Those wishing to comment on the new rules can do so by writing to Peter Cantillo, Assistant Commissioner, Division of Code Enforcement, Office of Housing Preservation, 150 William Street, Room 4103, New York, NY 10038 by November 9th. On that day, beginning at 10 a.m., a hearing will be held at 125 Worth Street in the Second Floor Auditorium and those wishing to testify should notify Cantillo in advance.

"We will be doing our best to comment on the rules and lobby with the City Council and ask them to pass legislation to amend the definition of abatement to allow something less onerous," said Strasburg.

The Council, meanwhile, has been stalled for more than a year while trying to create a consensus about the amount of abatement necessary. The Mayor, for instance, has been insisting on window replacement, an onerous requirement opposed by owners as something that is not required.

Even Diana Kiel, director of the city's lead poisoning prevention program at the Department of Health, said the current procedures do not even require window testing unless the paint is rubbed down.

"HPD's current protocols and our protocols are that only peeling and chipping, or flaking, delaminating and bubbling paint areas are tested," she said. "It's not our protocol to test intact surfaces, but even if it's a small area [that is chipped], we will test it and sometimes because it's subjective people will disagree about what is `intact.'"

Anthony Baronci, counsel to the Housing Committee for the City Council said, "We're still working on putting together a proposal. We may see something in November."

With the proposed HPD rules scheduled to go into effect soon, a Council and Mayoral agreement can't be reached soon enough.