Report: NYCHA Contests Lead Paint Violations

MONDAY, JULY 31, 2023


A recent investigation by CBS New York has found the New York City Housing Authority (NYCHA) was found to have contested more lead paint violations from the city’s health department than all of the city’s landlords combined.

According to the investigation, when private landlords contested the health department's orders to fix lead paint hazards, the health department agreed to either reduce the number of violations for the landlord or remove them altogether in 60% of those orders. However, violations were reportedly at least reduced 74% of the time when NYCHA was the one contesting.

About the Investigation

The investigation was sparked after a resident at NYCHA's East River Houses reported that her three-year-old daughter had blood testing that showed lead levels at 31 times the average amount for a child.

After the child’s blood test was reported, the city's Department of Health and Mental Hygiene tested the home, finding 22 lead-based paint hazards that it ordered NYCHA to fix.

However, according to city records obtained by CBS New York, the same day NYCHA got the violation notice, NYCHA informed the health department they planned on contesting 21 of the 22 violations, which were found with a kind of testing called XRF, using a device that can detect lead through multiple layers of paint.

After receiving the violations, NYCHA reportedly went back to the apartment to perform its own paint chip analysis, which reportedly showed significantly different results from health department's test.

Based on that paint chip analysis, the health department reportedly agreed to dismiss 16 of the 22 violations.

While XRF and paint chip analysis testing are both described by experts as reliable, neither one is perfect, and Sean Stratton, a certified lead inspector and Ph.D. candidate at the Rutgers School of Public Health told CBS New York that he would err on the side of caution when analyzing both results.

"Because both XRF and paint chip analysis are approved methodologies, I would side on the more cautious approach and take the higher result to be the most protected for children," he said.

The health department told CBS New York that "XRF technology is accurate" but it may sometimes read through paint and pick up an underlying metal surface. They say paint chip sampling, like the kind NYCHA does when they contest violations, "can be more precise..." than XRF "...when done correctly."

CBS New York subsequently filed a public records request and found in the last five and a half years, the health department had dismissed lead paint violations for NYCHA more often than for private landlords.

Formally known as Commissioners' Orders to Abate, the NYCHA contested the orders 209 times, while all the private landlords in the city combined filed 216 contestations. During that timeframe, the health department sent NYCHA a total of 249 orders to fix lead paint hazards, meaning NYCHA challenged 84% of them.

In 2018, The New York Times reported that the then-interim chair of NYCHA said the agency was going to stop its practice of contesting lead paint violations.

In response to the most recent investigation, NYCHA made the following statement to CBS New York:

"The contestation process is the regulatorily established process to respond to a lead COTA because it triggers a more in-depth, science-based analysis to understand exactly where lead is present and on certain substrates, like metal. This is used to identify the confirmed locations of lead-based paint, as opposed to simply paint that is on a surface that is, for instance, metal."

Other NYC Lead Paint News

In 2017, a report released by New York City’s Department of Investigation claimed that the chairwoman of the city’s housing authority knew that agency inspectors were not performing required checks for lead paint and signed off on paperwork that said those checks were completed.

The findings reportedly said that the agency had gone years without inspecting for lead.

At the time, the issue of lead paint in the city’s public housing was the center of a federal investigation, to which then-NYC Mayor Bill de Blasio said that the administration would cooperate fully.

The eight-page report said that the city stopped conducting annual inspections of apartments for general conditions in 2012, when the Department of Housing and Urban Development relaxed those mandates. However, it was in the course of those checks that the authority had looked for lead paint, and the federal government did not end its requirement for annual inspection of apartments where lead paint was possible.

Where the city failed, then, was in instituting a new plan for inspecting for lead apart from the general inspections that were no longer required. NYCHA had acknowledged that lapse when it filed an amendment to its most recent filings, but it was unclear if and when top officials knew that the agency hadn’t been compliant.

The DOI recommended that an independent monitor be appointed, and de Blasio said via a spokesperson that he would be considering that recommendation. A spokesperson for the DOI said the findings would be turned over to federal prosecutors, and a civil suit was filed shortly after the findings were released.

A year later, the NYCHA settled with federal prosecutors after a civil complaint was filed arguing that the agency exposed its residents to lead-poisoning risks and lied for years about conducting proper testing.

In the settlement, NYCHA admitted to the accusations and agreed to increased federal oversight. City officials also agreed to provide $1 billion in capital funding over the next four years and an additional $200 million each year following until a judge clears the city of its commitment to the settlement.

"The problems at NYCHA reflect management dysfunction and organizational failure, including a culture where spin is often rewarded and accountability often does not exist," federal prosecutors said in the complaint.

In October of 2022, the New York City Department of Housing Preservation and Development announced that it had reached an agreement with landlord Jason Korn to correct multiple lead paint violations involving buildings located in Brooklyn.

According to reports, 285 residents’ homes were impacted because of 80 lead-based paint violations in six different locations throughout Brooklyn. The majority of the violations were for the failure to conduct proactive activities related to identifying or remediating any lead-based hazards, as well as failing to maintain detailed records of required activities from at least the past 10 years.

As a result of the violations, Korn has been ordered to pay $82,500 in civil penalties and to correct all the outstanding violations within 90 days of the order signing.

And in May of this year, New York State Assembly lawmakers advanced legislation that would reportedly bar the exclusion of coverage for losses or damages by the exposure to lead paint from liability coverage to rental property owners.

“It is no secret that lead-based paint is dangerous, especially to children,” said Assembly Speaker Carl Heastie.

“This bill is an important measure that ensures insurance companies cannot exclude coverage for losses or damage caused by lead-based paint exposure.”

According to reports, this most recent lead measure is the latest effort by state officials to address lead paint, often found in aging housing stock. Earlier this year, Gov. Kathy Hochul proposed expanded inspection of pre-1980 rental units every three years for lead-based paint.

It has been estimated by state officials 7,000 children every year in New York alone are diagnosed with elevated levels of lead in their blood.

“My bill would bar insurers licensed to provide liability coverage to rental property owners from excluding coverage for losses caused by exposure to lead-based paint," said Assemblymember Jonathan Rivera.

"No mother should have to be concerned that the paint in a new apartment could drastically alter her child’s development and potentially inhibit them for life.”

   

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