LEGAL CORNER
NEW EPA LEAD PAINT REQUIREMENT
BY ANDREW BRUCKER, SCHECTER & BRUCKER, P.C.
Recently, the Environmental Protection Agency (EPA) issued new rules regarding lead paint that affects almost all repairs or renovations in multi-family buildings built before 1978. These rules go into effect as of June 1, 1999.
The new rules apply anytime there is a common area renovation or repair that disturbs more than two (2) square feet of painted surface in any way. Areas not generally accessible to tenants, such as boiler rooms, are not considered common areas.
Routine painting (i.e. a new coat of paint over an old one) is probably not covered by these rules. However, most paint jobs include scraping and sanding, and this would be covered by these new rules.
The rules are set out so that the "renovator" must comply. The renovator means contractors when a third party has been hired to do the work, but the term also applies to building owners or managers who employ their own maintenance staff (including the superintendent). Therefore, a manager who has the building staff make repairs must be very careful to comply with these rules.
The renovator must provide the building owner with the lead paint pamphlet prepared by the EPA entitled "Protect Your Family From Lead In Your Home." (This is the same pamphlet given to tenants when they first move into an apartment.) The renovator must then either obtain a written acknowledgement from the owner that they have received the material or obtain a certificate of mailing at least one week prior to the renovation. In addition, when there is a renovation to a common area, each unit of the multi-family housing must be notified by writing or the renovator must ensure written notification of each unit and the pamphlet must be made available upon request.
The notification must include the start and end dates of the work, a general description and location of the work and instructions on how the tenants can get the lead paint pamphlet. The letters may not be mailed, but must be hand delivered to each unit and the renovator must prepare, sign and date a statement describing the steps taken to deliver the document. If there is a renovation to an individual unit a lead paint pamphlet must be given to at least one adult residing in the apartment unit by hand or mail. However, if sent by mail, the pamphlet must be received at least seven (7) days before the onset of work. If hand delivered, the renovator must try to get the tenant to sign an acknowledgement stating that they received the pamphlet before work began.
If the tenant refuses to acknowledge, the attempts must be documented. Further, if there is a change in the renovation (and change orders are not uncommon!), a second letter must be sent updating the tenants about the change.
The EPA requires that renovators keep records for three (3) years after completion of the renovation. Those records include any reports certifying that the property is free of lead paint, the acknowledgement of the receipt (or proof of delivery) of the pamphlet and the notification records for renovations in common areas.
Take hear: there are a few other exceptions. The rules exclude emergency repairs which pose little likelihood of creating lead hazards. Also, if the building is intended for elderly or disabled tenants, you need not comply (unless a child lives in a unit, in which case the rules would apply to that unit only).
The penalty for non-compliance is steep (up to $25,000 per day, plus possibly jail time). Therefore it is important for every manager to understand and comply with the new lead paint notice requirements.
Andrew Brucker is a partner in the law firm Schechter & Brucker, P.C. He may be contacted at 350 Fifth Avenue, suite 4510, New York, NY 10118, 212-244-6600.