New York's Cooperative and Condominium Community

Habitat Magazine July/August 2020 free digital issue

HABITAT

ARCHIVE ARTICLE

What Lurks Behind

Read this article in the digital edition.

 

The lobby-renovation committee in your prewar co-op wants the walls to be blue. But the gadfly in 14F insists that decorative tile is the only way to go. And your interior-design consultant wants to knock down half the walls to open up the space.

And not a single person is saying, “Wait a minute. Isn’t there something we have to do involving lead paint?”

There is. Just like testing for and removing asbestos, you have to test for and remove toxic, brain-damaging lead paint. Not every building has to do so – only those built before 1978, a year after the U.S. Consumer Product Safety Commission banned lead paint. But to hear engineers, contractors, environmental consultants, and others tell it, not every co-op or condo board seems to be aware of – or care about – the myriad city and federal rules for lead-paint inspection and removal, or of the five-figure fines they risk.

“When you go to the Department of Buildings to file a permit [for renovation or construction], they ask you questions about asbestos, about special inspections, about progress inspections – but nobody asks you about lead,” observes Gene Ferrara, president of the engineering firm JMA Consultants, a New Jersey company that has worked on numerous New York City co-ops and condos. “I guess they assume the co-op board knows it’s the one that’s supposed to test for lead paint and allocate for lead-safe practices,” he says. “But most of the boards and industry either don’t know about the law or choose to avoid it.”

That may be why a greater percentage of co-ops and condos are found in violation of the city’s lead-paint rules than any other type of residential dwellings. The Department of Health and Mental Hygiene says that, in 2011, it issued 552 residential lead-abatement orders overall; only 25 involved co-ops or condos. But while that’s just 4.5 percent of the total number, co-ops and condos make up only about 2 percent of city residential buildings, meaning those 25 cases are more than twice as many as you’d statistically expect.

Stop! In the Name of Lead

Because of the small number, though, it’s not surprising that in an informal survey of over a dozen building managers – primarily the heads of their companies – no one said he or she had ever encountered a work stoppage for lead-paint violations in a common area. One manager, who spoke on condition of anonymity because it involved “a private construction job” within an apartment, says that job was the only stoppage he knew of involving lead paint in any of his buildings – a neighbor, he believes, had notified the city about another neighbor doing renovations. “But it wasn’t that big a deal and just shut down the job for a couple of weeks while the [lead-paint] violation was cleared,” the manager notes.

“I’ve seen work stoppages for safety things, for scaffolding. I have never seen a work stoppage for lead,” says Ferrara. Adds Jennifer Carey, principal of the 25-year-old JLC Environmental Consultants: “I personally haven’t experienced any lead-paint work stoppages.”

Still, it did happen at 25 New York City co-ops and condos last year – and the consequences of not inspecting for and properly abating lead paint can be dire. Failure to comply with a “Commissioner’s Order to Remediate” can lead to fines of up to $2,000 per violation – and more expensively, the federal Environmental Protection Agency (EPA) can fine you up to $37,500. Cautions Joel Ergas, a principal of Forbes-Ergas Design Associates: “Anybody can pick up a phone or press a [computer] mouse and report to the city that, ‘There’s a job going on in my building and they don’t seem to be taking precautions.’”

We won’t even get into the judicial and ethical costs of improperly handled lead paint that damages a kid neurologically through lead poisoning.

So, you want to avoid all that. Obviously. That means you need to know your responsibility. But it’s extremely difficult for a board and even many professionals to know.

The Lead-Law Labyrinth

“There’s a lot of misinformation about it,” says Ergas. John Marino, owner of the contractor JMPB Enterprises, agrees: “It’s a very convoluted law, and it can be confusing.”

No kidding. Here’s a sample: New York City’s Lead Paint Hazard Reduction Law, a.k.a. Local Law 1 of 2004, which took effect in August 2004. It applies to property owners of all pre-1960 buildings with three or more residential units, as well as property owners of post-1960 to pre-1978 buildings with three or more residential units where the owner knows there is lead-based paint. Yes, that’s how nuanced it gets.

And it gets even more so: Local Law 1 does not apply to any owner-occupied co-op or condo apartments – unless the owner is renting it to someone else. In that case, condo and co-op boards must inspect non-owner-occupied apartments (which includes the super’s apartment, by the way), but only if a child seven years old or younger is living there. And it applies only if a professional contractor or handyman is doing the work. It doesn’t apply to co-op shareholders or condo unit-owners doing their own renovation, repair, or painting in their own apartment. Still with us so far?

As for common areas, co-op/condo boards have to inspect any area “regularly used for access and egress to a dwelling unit,” such as lobbies, hallways, and stairwells – though not other common areas, such as boiler or laundry rooms. And on top of this, federal Environmental Protection Agency (EPA) rules apply.

Leaving aside details best left to lawyers, what exactly does lead testing entail? That part, luckily, isn’t complicated.

Types of Tests

Co-op and condo boards “have a couple of options,” says Marino. “Either use an EPA-certified contractor to test for lead or hire an outside firm.” An outside firm “provides more sophisticated testing methods, typically with the same results but for more money.”

Ergas differs. “I don’t think a test by an outside consultant is egregiously expensive,” he says. “Our experience is that it’s in the $600 to $800 range. Is that a lot of money? If you’re a tiny little building, it can be.” But it can save money, too. “If you test prior to a general contractor becoming involved, you know exactly what the scope of the job is and [so] the job can be bid accordingly. If the general contractor does it, he’s already onsite and he’s open to charge whatever he wants to do lead-safe practices. We like to know upfront [if there’s lead] so that the job can be bid out accordingly.”

At least one environmental consultant falls squarely in the middle. “I’m not of the alarmist view that you have to have a consultant,” says Carey. “There’s nothing to stop [a board] from testing on their own as long as they use a lead-test kit approved by the EPA” and have an EPA-certified professional perform the actual test.

The EPA recognizes three commercially available do-it-yourself kits: ESCA-Tech’s D-Lead Lead Paint Test Kit, which retails in the $75 to $85 range; 3M’s LeadCheck Swabs, with a pack of eight retailing for about $25; and the State of Massachusetts Test, which can be used nationwide “but cannot be used on wood or iron surfaces, such as fire escapes,” Carey says. As well, W. M. Barr & Company markets ESCA-Tech kit under the private-label name Klean-Strip D-Lead Paint Test Kit, which can retail in the $35 to $38 range.

“This is where it gets tricky and a consultant can help you make those choices,” Carey says. She adds that with a consultant “you get a report, so you have everything for your records and you don’t have to do recordkeeping yourself” – not a small consideration when documents don’t always transition between successive boards or managing agents “and 10 years from now some kid is neurologically damaged, which you hope never happens, and you need documentation” for legal reasons.

What happens if you don’t use an off-the-shelf kit, and opt to have your designer or environmental consultant call in a specialist to do the test? “An EPA-certified inspector comes in with [a handheld] X-ray fluorescent detector – an XRF,” Carey says. “If it tests negative, you don’t have to do anything; if it’s positive, you have to [have your EPA-certified contractor] follow lead-safe-work practices. Sometimes, if you have a negative XRF, we recommend a confirmation paint-chip test, [which involves taking] a one-inch-by-one-inch chip, and then you need a bigger chip if the wall’s been painted over many, many times. You have to get down to the substrate, whether plaster or sheet rock. We take the paint chip samples back to the lab and analyze them.”

“I even test newer buildings” built after 1978, says engineer Ferrara, “because believe it or not, we still find lead paint there. The test is so inexpensive that to not do the test makes no sense." Carey concurs. “We sometimes find lead paint even in buildings made after the cut-off date,” she says. “We’re doing an apartment on Fifth Avenue right now where that’s the case.”

“Contractors have gotten to the point where they want to know if there’s been a lead test” before agreeing to a job, says Ferrara, “and I don’t blame them because ultimately they’ll be the first target of litigation.”

Much has been written, in Habitat and elsewhere, about what happens after lead has been found. “The EPA protocols must be followed,” says Marino. “There are no shortcuts.” Any EPA-certified contractor has been trained to handle lead the same way, from cordoning off the area and laying plastic to doing “wipe tests” with chemically treated pads each day to check for the presence of lead particulates. So a board’s best bet for avoiding fines is simple: perform a lead test before you even send the job out to bid.

“If an occupant says, ‘You guys have been scraping metal all over the outside of the building and I’ve got this dust all over. Did anybody test for lead?,’ the answer should be, ‘Yes, we did,’” says Ferrara. “And, ‘Not only did we test, we found that there was no lead,’ or, ‘There is lead, and we’re taking the proper precautions.’ Otherwise,” he says, “the person’s next question will be, ‘What’s your name, so I can give it to my lawyer?’”

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