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Council law to ban dry sanding/scraping.

The City Council may or may not approve a new lead bill this week that has four sections and has already been approved by the Housing and Buildings Committee.

"It's the closest we've come in the last decade to reforming Local Law 1, which everyone concedes is a bad law and the courts have interpreted as it never was intended to be," said Dan Margulies, the executive director of the Community Housing Improvement Program (CHIP), a middle market owner organization. "It's a very comprehensive bill, and it's going to change the way we work and make kids not only safer from lead, but safer from asthma and other illnesses related to dust," he said.

The most significant element of the bill would be that it bans "dry scraping or sanding of lead-based paint or paint of unknown lead content in any dwelling unit."

"This will ban such sanding and scraping, not just in apartments and not just by professional painters," Marguiles explained. "Everybody that sands or scrapes a wall in the city, in their own home, will be breaking the law, if they don't mist the wall. Everybody that goes to Home Depot is at risk."

Another provision requires that on vacancy in a pre-1960 unit, the owner has to make the apartment paint intact and clean, and fix binding doors and windows so they don't abrade and create dust.

The third part of the bill involves tenant notification and response. Upon every vacancy, the owner has to ask the tenant if they have a child under six, and annually owners must ask every tenant if they have a child under six. If a child under six resides in the unit, the owner must perform an annual inspection.

"If the tenant fails to provide access, that is a defense against penalties in the law," said Margulies. This notice can be combined with the window guard notices sent in January.

If the owner finds peeling paint upon inspection or during the course of a year, or the tenant reports peeling paint to the owner, the owner has to timely protect the area with plastic, wet scrape the surface, repaint, and when done, either wash or HEPA vacuum the area. "You would have a liability if you didn't do it promptly," said Margulies.

The law does provide, however, a presumed lead violation where there is peeling paint and a child under six. But this is rebuttable by testing. If the owner receives a violation, they have 21 days to correct it by the wet scraping, painting and clean-up process, similar to what an owner would do if they found the peeling paint.

If the violation is written on an "interior woodtrim or door," the owner will have to conduct a "dust clearance test" after the clean-up. This is essentially a wipe test conducted by a certified individual of a measured area on the floor in front of the work area. The intent is to ensure the lead dust is cleaned.

The testing has to be done by a trained tester, and the only ones now certified are done so by the Federal Environmental Protection Agency. The law directs the Department of Health to develop a training course just for dust testing, and they anticipate that building employees can be trained.

"If you replaced a door in the last 40 years, you might have reason to believe it does not contain lead paint, and if you got a violation, you could rebut the violation and have the door tested," suggested Margulies. "One of the issues owners face is whether to rebut these violations or correct them. Under Local Law One, we always suggested rebutting because the presumption could be used against the owner in liability cases, and if you didn't have the test, you would be more vulnerable to a lawsuit. Under this bill, the definition of presumed lead makes clear the presumption only applies for the writing of the violation, and can't automatically be used in court to 'prove' there was lead, the way negligence lawyers did with this."

There were proposals to require the dust test after all paint restoration work, not just on woodwork, but Federal studies now indicate that the overwhelming majority of walls don't have lead, and 50 percent of the baseboards and woodwork don't have lead either.

Co-ops and condos will still be getting the violations, and are responsible for ensuring timely compliance, but it specifies that the boards can take action against the recalcitrant shareholder, which recourse they now have anyway.

Health Commission Neil Levin testified that they had never written a violation for lead paint in 96 percent of the cases involving a lead poisoned child.

"The law will change the way we deal with something universally, which is an issue in less 4 percent of the buildings," he said.
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Title Annotation:buildings
Publication:Real Estate Weekly
Date:Jun 30, 1999
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