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Lead Paint

On March 26, 2002, a Manhattan appeals court unanimously reinstated New York City Local Law 38, saying the New York City Council did not violate environmental regulations when it passed the law in 1999.

The New York City Coalition to End Lead Poisoning, a civic group that has been fighting the city's lead paint laws since the first was enacted 20 years ago, challenged the law. Past suits brought by the coalition have resulted in fines against the city and threats of jail time for officials held in contempt. The group claims that Local Law 38 would reduce landlords' responsibility to cure dangerous lead paint conditions and make it more difficult to bring negligence suits on behalf of children. It is currently estimated that 35,000 New York City children have elevated lead levels in their blood.

The coalition scored a coup in October 2000 when Manhattan Supreme Court Justice Louis B. York ruled that the New York City Council had failed to comply with the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review Law (CEQR), both of which require the New York City Council to consider the environmental impact of pending legislation. York's ruling would have resulted in Local Law 1 of 1982 being reinstated as the governing law, but lawyers for the city obtained a stay pending appeal.

Consequently, Appellate Court Judge John T. Buckley ruled that the New York City Council had addressed the relevant issues in an environmental assessment statement, and reversed the supreme court's decision re-establishing Local Law 38 as the law regulating lead-based paint in New York City.

Local Law 38 calls for the containment, rather than abatement, of lead-based paint. Research shows that removing lead paint releases contaminated dust particles into the air, posing more of a health risk than containing or covering the paint. The law also requires landlords to inspect apartments once a year and to take immediate action when lead paint is found peeling from the walls.

The coalition challenged the law's annual inspection requirement as too lenient, fearing landlords would perform incompetently without proper supervision. In addition, it disagreed with the law's definition of lead-based paint as a substance containing 1.0 milligrams of lead per square centimeter or greater. This amount was reduced from what was required under Local Law 1, a stringent 0.7 milligrams per square centimeter.

However, this was not what the court had been asked to resolve. The court needed only to determine whether or not the New York City Council had followed proper procedures in passing the law. According to the court, the New York City Council had passed a three-part test because it "(1) identified the relevant areas of environmental concern, (2) took a hard look at them, and (3) made a reasoned elaboration of the basis for its determination."

The court said, that in the final analysis, all parties were in agreement that removal of lead paint from buildings had been proven to be more dangerous than containment. But defining containment was a matter for the legislature, not the court.

So, where does this leave us? Many tenant advocacy groups claim that Local Law 38 does not offer enough protection to tenants. Currently, the law requires that when an apartment becomes vacant in a building with three or more apartments built before January 1, 1960, the owner must prove there is no lead paint present. The apartment must be inspected and, using a wet-scraping process, any peeling paint must be repaired. During this procedure, the work area must be sealed off until completed and the surfaces must be vacuumed or washed with detergent before repainting.

In addition, windows and doors must be inspected to ensure that they are properly hung, that no painted surfaces bind or rub, and that bare floors are smooth and do not allow dust to accumulate that cannot be removed using conventional cleaning methods. Local Law 38 also requires that owners of pre-1960 buildings must distribute forms to all tenants, every year between January 1 and January 16, inquiring whether any children under the age of six reside in the apartment. If the form is returned affirming the presence of such a child, or if the owner is aware that a child of such age is in the apartment, the owner is required to inspect the apartment for peeling paint and properly hung windows and doors, and to ameliorate any problems in the prescribed manner.

A law recently introduced in the city council, Intro 101, affords more protection. It raises the ceiling age to a child under seven years old residing in an apartment and defines lead paint as paint containing 0.7 micrograms or more of lead per square centimeter. Both these provisions were prescribed in the original Local Law 1 of 1982. In addition, landlords and owners who perform lead-based paint remediation work would be entitled to J-51 tax benefits - property tax credits based upon the cost of the work.

Intro 101 defines lead-bearing dust as a hazard and establishes parameters for determining whether there are unacceptable levels, whereas Local Law 38 does not. This dust is alleged to be one of the leading causes of lead poisoning in children, and it is virtually indiscernible as it can be present even when there is no peeling paint in a home or apartment. Intro 101 would require lead hazards to be abated within three months.

Finally, Intro 101 would extend lead-based paint regulations to areas not dealt with by Local Law 38, including public schools, day care centers, and playgrounds.

Albert F. Pennisi, a senior partner in the firm of Pennisi Daniels & Norelli, has been a practicing attorney for 30 years and has served as outside counsel for the New York State Department of Taxation and Finance and for the secretary of Housing and Urban Development. His firm represents more than 70 cooperatives and condominiums in the metropolitan area. He is the president of the Federation of New York Housing Cooperatives and Condominiums.

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