How to Clear HPD Lead Paint Violations
As a landlord or building owner in New York City, receiving a notice of violation from HPD about a lead-based paint issue seems like a relatively common occurrence.
HPD sends out thousands of these notices each year. In fact, over 9,000 lead paint violation notices have been sent out in just the first half of 2022 — an average of 50 per day.
A notice of violation is not actually a violation… yet. There are no penalties if corrected and cleared properly.
However, if the problem is not addressed by the specified deadline for correcting and certifying it, it may result in fines, penalties, and even litigation.
In this article, we’ll introduce the common types of lead-based paint violations issued by HPD, when and who they apply to, and how to properly correct and clear them.
Understanding Lead Paint Violations
Having lead paint in your building is not problematic until it starts to deteriorate. When that happens, and the paint starts to chip, crack, peel, or otherwise cause the release of lead dust or paint chips, it becomes a lead-based paint hazard that poses a serious risk to the people living there — especially for young children under 6 years old.
If you’re familiar with Local Law 1, you’ll know that landlords are responsible for protecting their tenants from lead-based paint hazards. Any paint in a pre-1960 building is assumed to contain lead unless proven otherwise, and if there is deteriorating paint in an apartment where a child under 6 resides, it must be removed or safely abated as soon as possible.
As the primary agency responsible for the enforcement of lead paint issues, HPD will send trained inspectors to audit landlords for Local Law 1 compliance, as well as in response to 311 complaints from tenants.
Types of Lead Paint Violations
HPD issues lead paint violations when an inspector identifies a lead paint hazard (e.g. deteriorating paint) in buildings built before 1978 where a child under the age of 6 resides.
The 2 most common types of lead paint violations are presumed violations (616) and tested violations (617). Both constitute class C “immediately hazardous” violations, which can each result in penalties of $250 per day, with a maximum of $10,000.
- A presumed violation (616) means that an HPD inspector found deteriorating paint that is presumed to contain lead based on the age of the building.
- A tested violation (617) means that an HPD inspector found deteriorating paint and confirmed the presence of lead through a positive XRF analyzer reading.
Other types of HPD lead violations:
- A turnover violation (621 or 622) may be issued if HPD finds deteriorated paint on window or door friction surfaces that should have been abated before tenants moved in. Similar to above, the presence of lead can either be presumed based on the age of the building (621) or tested positive using an XRF analyzer (622).
- An audit violation (614, 618, 619, 620, or 623) is issued when a landlord or property owner is audited by HPD and unable to provide records that are required under Local Law 1.
To Contest or Not to Contest?
If you received a presumed violation (616) for deteriorating paint conditions in a pre-1960 building, you have the option to contest it. This can be a good option if you think that the paint in your building doesn’t actually contain lead, saving you the time and costs associated with lead abatement and repair.
This requires you to prove to HPD that either (1) the building was built after 1960 or (2) the paint is not lead-based according to XRF lead paint testing and/or paint chip laboratory analysis.
You must submit the Contestation Form and provide ALL of the necessary documentation to support your statement(s). This form must be postmarked no later than 6 days before the correction deadline.
4 Steps to Clear HPD Lead Paint Violations (616 & 617)
Step 1: Remediating The Lead Paint Hazard
First, work must be done to fix the lead paint hazard identified on the notice by the correction date on the notice.
The method you ultimately choose depends on the type of surfaces affected, as well as your own goals and budget. According to Local Law 1 of 2004 and the New York City Health Code §173.14, abatement of lead-based paint hazards can be done through the following approved methods:
- Wet Scraping and Repainting
- Removal or Replacement
- Enclosure (a.k.a. Containment)
- Encapsulation
Regardless of the method, any work must be completed by an EPA-certified lead abatement contractor in order to satisfy HPD and successfully clear the violation.
Make sure that you receive a sworn statement (notarized) from the contractor to prove that the work was done. The EPA certification of the firm that performed the abatement will also need to be submitted to HPD as well (see Step 3).
Step 2: Dust Wipe Clearance Testing
After the lead paint hazard has been properly abated, dust wipe clearance testing must be performed to ensure that proper clean-up was done.
This is an important step to ensure that any repair or remediation work did not inadvertently contaminate the apartment with dangerous, lead-containing dust.
Per Local Law 1 of 2004, dust clearance testing is a mandated step when correcting HPD violations. You must hire an EPA-certified lead inspector or risk assessor to perform the dust wipes, and samples must be sent to an NYS ELAP-certified laboratory for analysis.
Dust clearance testing cannot be done by building management or the company that did the abatement work.
Step 3: Gathering Paperwork
The following paperwork must be submitted to HPD in order to certify that the violation is corrected:
- Certificate of Correction (Sworn Statement from Building Owner)
- Sworn Statement from the Lead Abatement Contractor
- EPA Certification License of the Lead Abatement Contractor
- Sworn Statement from the Dust Wipe Contractor
- EPA Certification License of the Dust Wipe Contractor
- Results of the Dust Wipe Clearance Testing
Make sure that you submit the original copies of all sworn statements (not photocopies) and the work completion dates all match.
Paperwork should be submitted to the HPD Lead Unit: 94 Old Broadway, 7th Floor.
Step 4: Arranging Reinspection
After your paperwork is submitted (assuming it is valid and on time), HPD will arrange for a reinspection to verify that the lead paint hazard has been properly remediated.
Once reinspection is completed, all of your paperwork is verified, and the lead hazard is no more, then your violation will be successfully cleared.
However, If the inspector returns and finds that a lead paint hazard still exists — even if the original hazard was remediated but a new one was caused by another condition (e.g. a recent leak) — the violation will not be cleared.
Reinspections are free as long as you followed the deadlines specified on the original notice of violation. However, the deadlines have passed and the violation becomes overdue, HPD may charge a $300 fee for the reinspection.
Need to Postpone?
If extenuating circumstances make it impossible to abate the lead paint hazard before the deadline, you can file for a postponement. If granted, you’ll receive a 14-day extension to complete the lead paint abatement process.
You must submit the postponement form to HPD, specifying your reasons (technical difficulties; inability to obtain necessary materials, funds, or labor; or inability to gain access to make the repair).
Building owners can file for postponement up to two times, but bear in mind that it’s much harder for a second postponement to be granted.
Consequences of Failing to Resolve Lead Paint Violations
Most lead-based paint violations (616 & 617) are considered “immediately hazardous” due to the presence of young children that are particularly at risk of lead poisoning.
If not corrected and cleared within the given deadline, HPD may impose fines of $250 per day until the lead paint hazard is properly addressed (with a maximum fine of $10,000).
In addition to fines, overdue violations past the deadline may trigger HPD’s Emergency Repair Program (ERP). When that happens, HPD will show up and hire their own contractors to repair urgent violations. The work will then be billed directly to the building owner through the Department of Finance.
Due to the city’s contracting process and administrative fees involved, costs incurred from ERP are much higher than if a building owner had directly hired a lead abatement firm to repair the hazard.
Lastly, not resolving a violation in a timely manner can also result in costly, time-consuming litigation. HPD may take the owner to housing court, and tenants can also pursue litigation against the owner as well.
About Green Orchard Group
Green Orchard Group is an experienced team of EPA-certified lead professionals based in New York City.
We provide a variety of lead-based paint inspection and abatement services based on your specific needs, and we’re well-equipped to help you tackle any type of HPD lead paint violation.
Give us a call at (212) 219-8261 or use this form to request a quote, schedule a service, or just ask a question!
In addition to lead-based paint, we also provide other environmental health & safety services including mold remediation, indoor air quality testing, water damage restoration, pathogen disinfection, and more.