Rule status: Adopted
Effective date: November 12, 2021
Proposed Rule Full Text
Adopted rule summary:
These amendments to Chapter 11 of Title 28 of the Rules of the City of New York implement Local Law number 66 for the year 2019 (Local Law 66), which provides for an amendment to the definition of lead-based paint once HPD promulgates a rule stating that the federal Department of Housing and Urban Development (HUD) has provided at least one performance characteristic sheet (PCS) approving a commercially available x-ray fluorescence analyzer (XRF) tested at the level of 0.5 milligrams of lead per square centimeter.
Online comments: 3
This is like the story with the guy who used to feed the cow, 5 lb. of Hay daily. Until he decided that he will “save” by cutting down to 4 lb. daily he kept on cutting until he reached a half a pound a week, & the cow died from hunger. The same here the city & state keeps on making more & more regulations on both ends. On the requirements, & on the rental prices etc; It’s either one of the 2.
1.They (Gov) want’s to bankrupt all bldg. owner’s intentionally,
2. they don’t begin to know the basice in economics.
This unjust & unfair!!!
Question (23002-18426) What is a “whole house gut rehabilitation project” for RRP purposes? What RRP requirements, if any, apply during a whole house gut-rehabilitation project? If target housing has, at some point after 1978, been gut-rehabbed, would the RRP Rule apply to subsequent renovations on the property?
Answer The phrase “gut rehabilitation” may have different meanings across the construction industry. EPA, however, used the phrase “whole house gut rehabilitation” in a very limited sense to describe only those activities that demolish and rebuild a structure to a point where it is effectively new construction. At a minimum, these activities include the removal and replacement of all interior and exterior painted surfaces, including windows. The term should not be confused with a comprehensive renovation as described in FQ 23002-23415. 22 If an activity meets these narrow criteria (i.e., if a firm demolishes and rebuilds a structure to the extent that it is effectively new construction), then the activity is not a renovation for purposes of the RRP Rule and therefore not subject to any RRP requirements. If, after 1978, target housing has been demolished and rebuilt to the extent that it is effectively new construction, subsequent renovations on the property would also not be subject to the RRP Rule. In other words, if target housing has been demolished and rebuilt to the extent that it is effectively new construction, it is no longer target housing. Conversely, if only a portion of the target housing has undergone a post-1978 modification (e.g., an overhaul of a kitchen or bathroom), then a subsequent renovation would still be covered under the RRP Rule.
The above is from an EPA HUD questionnaire “EPA Lead-Based Paint Program Frequent Questions (March 22, 2018)” pg 20 through 22
Dear Commissioner, I work for a well know Bronx based CBO, NOT-FOR PROFIT Housing Development Corporation. We own and manage over 1800 units of affordable housing, most of which have been granted or transferred to our portfolio by way of NYC housing programs. All of the properties we manage have been built before 1968. However many have undergone MAJOR GUT REHABILITATION, reconstruction process. In which 99.9%
Of all living-apartment areas have been replaced with new and NON-LEAD paint containing materials.
RATIONALE for eliminating the requirement for NOT FOR PROFIT HDFC property Mgmt. Co. whose properties have undergone a “COMPLETE -&- Full GUT REHABILITATION” with the assistance and knowledge of HPD, and of which HPD is fully aware that the LEAD Paint content has been removed at 100% from the “living square footage areas” in which a family will reside.
Local Laws approved by the NY city Council and enforced by HPD, as well as HUD guidelines chapter 7(Revised 1997) that would grant a property owner a LEAD FREE exemption status on the property requires a property owner to submit an application in which they can substantiate that the property for the most part is either free of LEAD paint contaminant, and, or, that it contains a Lead concentration no greater than or equal to 1.0mg/cm2 or 0.5% by paint chip weight, for each specific and required tested areas of an apartment or common area of the property. (new proposed law would lower the Lead concentration to 0.5 mgms x sq. inch)
However, when it comes to differentiate between properties which have undergone major GUT REHABILITATIONS, which included “Lead paint removal and abatement” vs. properties which have had no Lead abatement and do contain Lead contaminants >1.0mg/cm2, the processes and regulations that should differentiate the two have been MIXED into one-for all “BUNDLE”, and this creates undue burden on those HDFC Mgmt. co. who with the assistance and knowledge of HPD have taken great steps to remove and abate by 100% the amount of LEAD contaminant from their properties, particularly from the occupied living space areas in which tenants will live.
It is a known fact, that any building constructed before 1968 and up to 1972 most certainly contains LEAD paint or other type of LEAD contaminant. However, most building constructed after 1972 which followed the new construction code of 1968, would most likely not contain any LEAD paint or Lead related contaminant. As LEAD in paint was outlawed to be included in any and all painting and other building construction material and components. Therefore it is assumed that a multiple dwelling property constructed/built any time before 1968 unless that property underwent “specific” interventions which would limit, reduce or in part eliminate the amount of its LEAD content that property would not be granted the LEAD FREE exemption status unless it can show by way of approved testing and processes that specific areas of the property contained less > then, 1.0 mg/cm2, or 0.5% by paint chip weight, for each specific and required tested areas of an apartment or common area of the property. The property/owners not only would not be granted the EXEMPTION status but an owner would be required to undertake “specific” interventions that would minimize Lead content, and reduce exposure and risk. In this case an owner would also need to show how the LEAD contaminant was removed, contained, or maintained so as not to pause a risk and a threat to residents of that apartment unit and of the building its self. And this is a good thing!!
By contrast, any building constructed after 1978 by default is known NOT TO CONTAIN ANY LEAD paint materials on components or SURFACES, since any and all materials used in the construction and particularly in the construction of the LIVING spaces where people would reside in, had been constructed with 100% Lead FREE content materials, and components. Therefore a property known to have been built after 1978 has NO LEAD paint or Lead contaminants, and by default, owners are NOT required to submit a Lead exemption Application. But if an owner of such property did submit an application legally affirming that his property was built in 1979, and XRF testing showed Lead content less than 1.0 mgms. or .05 mgms. that property would be granted a LEAD-FREE exemption status by default!
Therefore, properties built before 1968 seeking an exemption must provide legal and approved HUD-HPD testing processes, to be granted an exemption. HPD will either approve or reject the application request based on certified, proven and accepted testing processes submitted to HPD.
MAJOR GUT REHABILITATION,
a term know and used by the construction industry and recognized by many Dept. of buildings authorities thorough out the nation to mean that a property was “GUTTED OUT”, removed of all its original “interior” construction components and materials from its exterior and interior brick or wood-frame bearing walls, and specifically all components of any apartments-living-space square-footage of that property, including window frames, interior and exterior, and window sills and casings.
I.E. “only” its brick façade outer and inner lining had been left standing. The reconstruction of the inside of all the interior areas had been undertaken and completed as per the new post 1978 construction codes. Meaning that all construction materials and components used to reconstruct the inner lay-outs of the newly renovated apartments, and common areas would be in fact 100% FREE OF ANY ‘LEAD paint” contaminants! Hundreds of pre-1968 property in NYC have undergone this type of “GUT-REHABILITATION” reconstruction process.
To meet the high costs associated in accomplishing the GUT REHABILITATION reconstruction many owners of privately owned properties rely on a combination of financial resources, which include private banking loans and personal resources to accomplish the projects. This type of reconstruction process is submitted to and then approved by a chartered Dept. Of Buildings Authority. Inspected by its inspectors throughout the construction process, and finally it’s given a new certificate of occupancy which many times even describes the reconstruction and the areas affected by it. These owners are not required to submit any “GUT REHABILITATION” plans for approval to HPD. HPD may not necessarily be aware of any gut rehabilitation project undertaken by these owners, since the owner has not benefited by any financial assistance from HPD. Therefore it would make sense that if these owners intended to submit a Lead free exemption application to HPD these owners MUST show and legally substantiate, with all required documentation as per HPD/HUD guidelines, that the property had in fact been professionally Lead risk inspected, lead tested and must show that any Lead paint contents would be no greater than the limits described above, in each corresponding areas of the property.
By contrast, there are properties/multiple dwellings which were built before 1968 which have been disposed by HPD and granted to Not For profit HDFC Corporation who have subsequently become owners and managers of these properties. These properties have undergone “MAJOR GUT REHABILITATION” post 1980, and thereafter, with the direct financial assistance of NYC housing authorities, HPD included. As well as with the financial assistance of other City, State and Federal housing authorities. These Not for profits owners worked in tandem and under direct supervision and guidelines of HPD’s property assets and construction management teams. To undertake and commence a major GUT-REHABILITATION project they are required to submit reconstruction architectural plans which are submitted to, reviewed, and approved by, and financed through these agencies. Including, and primarily HPD. The entire GUT REHABILITATION reconstruction processes is also monitored by these agencies project managers, inspectors, and legal consultants. These agencies are ultimately responsible to sign off on the MAJOR GUT-REHABILITATION reconstruction project, and they approve all financial release for payments to construction contractors, architects, and inspectors. These properties reconstruction projects are very well known by these same CITY agencies, by HPD, and by all their authoritative representatives, who are fully aware that upon completion of the GUT REHABILITATION Project these properties would be free of ANY Lead contaminant or at least with < than 1.0 mg/cm2 by paint chip weight of LEAD paint contaminants, in 100% of the interior living-space/square-footage areas of all the reconstructed apartments and common areas.
In some instances, there may be items within these properties “common areas” which may have not been entirely replaced, such as stair treads, banisters and railings. However, it is also a fact that any item/component which had not been fully removed through the GUT REHAB process, those item had undergone some level of Lead paint abatement, containment or paint stabilization, which may have still reduced the level of LEAD paint content to
< the 1.0 mg/cm2 by paint chip weight. However, those specific areas or components may need to be properly re-tested before an exemption could be granted for those specific areas and components. Arguably, the inspection and Lead Risk Assessment costs and the required testing for those areas pales in comparison to assessing, testing, and affronting for the cost to Lead-test a 45 unit multiple dwelling which had been GUT REHABBED and should be known by HPD to contain Lead paint content < than 1.0 mg/cm2 per paint chip in all areas and on all components within the living space/apartment.
Conclusion, why should these HDFC properties owned and managed by these not-for profit groups be required to hire a LEAD co. to conduct LEAD testing when seeking a LEAD FREE EXEMPTION STATUS? When in fact HPD is fully aware that the properties are 100%, verifiable, to contain no or < than 1.0 mg/cm2 per paint chip in at least the living space/apartment areas of that newly GUT-REHABBED property?
Why these owners should be made to affront a financial burden and an intrusion upon their tenants, only to confirm that which is already known by the Housing authority who is responsible to approve, and grant the Lead exemption status?
To impose this requirement on these property owners/Mgmt. co. is both irrational, expensive, time consuming, intrusive, and even paper-wasting, environmentally illogical, as it would necessitate the usage of large amount of papers to be copied, submitted, re-copied and maintained as records by all parties involved.
HPD’s own legal and verifiable construction records should be able to substantiate that those properties have been made LEAD FREE or to contain < than the 1.0 mg/cm2, per paint chip, and thus not requiring further testing.
Conclusion; We are suggesting that the methodology of requiring a FULL risk assessment and Lead paint testing by a professional, licensed EPA authorized Co. should not apply to properties which have undergone a FULL GUT REHABILITATION process, for which there exist ample records known to, and retained by HPD that can substantiate that the apartments living spaces in those properties do not contain Lead Paint. (regardless of the current or the proposed Rule change), And therefore those apartments should be granted exemption by default, and only common areas which may have not undergone full replacements of components or which have not had an adequate LEAD abatement/encapsulation process should be made to be tested and subjected to the Lead Free exemption application requirements.
Matthew J. Chachere
See attachedComment attachment