[Added 12-20-2005 by Ord. No. 2005-393[1]]
It is the policy of the City of Rochester to
help prevent the poisoning of its residents by requiring that the
presence of deteriorated lead-based paint on the interior and exterior
of pre-1978 residential structures and on the exterior of pre-1978
nonresidential structures be identified and be correctly addressed
by reducing and controlling lead-based paint hazards which may be
present, in order to prevent human exposure to such hazards.
A.
Lead poisoning poses a serious public health threat
to children and adults in the City of Rochester.
B.
Younger children are particularly susceptible to the
hazards of lead-based paint since their bodies are still developing.
Fetuses are also vulnerable to the effects of lead-based paint because
pregnant women can transfer lead to their fetuses, which can result
in adverse developmental effects.
C.
A small amount of lead can cause elevated blood lead
levels resulting in serious and irreversible developmental damage,
particularly in children under the age of six years.
D.
Exposure to lead hazards from deteriorated lead-based
paint is a primary cause of elevated blood lead levels in humans.
E.
Structures built before 1978 are the most likely to
contain lead-based paint hazards.
F.
Residential properties are more likely than are nonresidential
properties to be a source of exposure to lead-based paint hazards
by children.
G.
Children living in older, poorly maintained homes
are disproportionately at risk for lead-based paint hazards.
H.
The exposure to lead-based paint hazards in the City
of Rochester is most common, and presents the most serious risk, to
young children residing in rental housing built before 1978.
I.
It is essential to the overall public health of persons
in the City of Rochester, and particularly for children younger than
six years of age, that they be protected from exposure to lead-based
paint hazards.
J.
According to the environmental impact statement, proposed
lead-based paint poisoning prevention legislation could have a cost
impact on the rental housing market as high as $540,000,000 depending
on the alternative chosen.
K.
The application of lead-based paint poisoning prevention
legislation to the owner-occupied housing market could cause extensive
housing abandonment in at least nine distinct neighborhoods.
L.
Although unquestionably positive, the potential health
benefits of lead-based paint poisoning prevention legislation are
difficult to quantify since the number of people at risk is undetermined,
the transient nature of tenants makes targeting difficult, the mere
presence of lead in a structure does not necessarily lead to human
exposure to lead-based paint hazards, and the generally agreed-upon
group at greatest risk, children from zero to six years of age, are
significantly transient.
As used in this chapter, the following terms
shall have the meanings indicated:
Any set of measures designed to permanently eliminate lead-based
paint or lead-based paint hazards. (See definition of "permanent'').
"Abatement" includes:
The removal of lead-based paint and dust-lead
hazards, the permanent enclosure or encapsulation of lead-based paint,
the replacement of components or fixtures painted with lead-based
paint, and the removal or permanent covering of soil-lead hazards;
and
All preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures.
Licensed or certified to perform such activities as risk assessment, lead-based paint inspection, lead dust wipe tests or abatement supervision by the United States Environmental Protection Agency (EPA) in accordance with 40 CFR Part 745, Subpart L. Any individual who has been licensed or certified by the EPA will be approved as certified by the City for the purpose of performing such licensed activities, provided that such approvals are subject to suspension or revocation after a finding of nonresponsibility by the Director pursuant to § 90-57I.
[Amended 5-14-2013 by Ord. No. 2013-136]
An individual who has been trained by an accredited training program, as defined by 40 CFR 745.223, and certified by the EPA pursuant to 40 CFR 745.226 to conduct lead-based paint inspections, whose approval to conduct such inspections in the City is not subject to suspension or revocation after a finding of nonresponsibility pursuant to § 90-57I. A certified lead-based paint inspector also samples for the presence of lead in dust and soil for the purposes of clearance testing.
[Amended 5-14-2013 by Ord. No. 2013-136]
An individual who has been trained by an accredited training program, as defined by 40 CFR 745.223, and certified by the EPA pursuant to 40 CFR 745.226 to conduct lead dust wipe tests, whose approval to conduct such dust wipe tests in the City is not subject to suspension or revocation after a finding of nonresponsibility pursuant to § 90-57I.
[Added 5-14-2013 by Ord. No. 2013-136]
An individual who has been trained by an accredited training program, as defined by 40 CFR 745.223, and certified by the EPA pursuant to 40 CFR 745.226 to conduct risk assessments, whose approval to conduct such risk assessments in the City is not subject to suspension or revocation after a finding of nonresponsibility pursuant to § 90-57I. A certified risk assessor also samples for the presence of lead in dust and soil for the purposes of clearance testing.
[Amended 5-14-2013 by Ord. No. 2013-136]
An interior or exterior accessible painted surface that a
young child can mouth or chew. Hard metal substrates and other materials
that cannot be dented by the bite of a young child are not considered
chewable.
[Amended 5-14-2013 by Ord. No. 2013-136]
An activity conducted following lead-based paint hazard reduction
activities to determine that the hazard reduction activities are complete
and that no soil-lead hazards or settled dust-lead hazards, as defined
in this article, exist in the dwelling unit or worksite.
A portion of a residential property that is available for
use by occupants of more than one dwelling unit. Such an area may
include, but is not limited to, hallways, stairways, laundry and recreational
rooms, playgrounds, community centers, on-site day-care facilities,
porches, basements, attics, garages and boundary fences.
An architectural element of a dwelling unit or common area
identified by type and location, such as a bedroom wall, an exterior
window sill, a baseboard in a living room, a kitchen floor, an interior
window sill in a bathroom, a porch floor, stair treads in a common
stairwell, or an exterior wall.
The physical measures taken to ensure that dust and debris
created or released during lead-based paint hazard reduction are not
spread, blown or tracked from inside to outside of the worksite.
Any interior or exterior paint or other coating that, through
a visual assessment, is found to be peeling, chipping, crazing, flaking,
abrading, chalking or cracking, or any paint or coating located on
an interior or exterior surface or fixture that is otherwise damaged
or separated from the substrate, or a chewable surface that contains
visual signs of chewing.
The area within three feet surrounding the perimeter of a
building.
Sanding without moisture and includes both hand and machine
sanding.
Surface dust that contains a dust-lead loading (area concentration of lead) at or exceeding the levels listed in § 90-57D.
[Amended 5-14-2013 by Ord. No. 2013-136]
[Amended 5-14-2013 by Ord. No. 2013-136]
A single unit providing complete, independent living facilities
for one or more persons, including permanent provisions for living,
sleeping, eating, cooking and sanitation; or
A room or group of rooms forming a single habitable space equipped
and intended to be used for living, sleeping, cooking and eating which
does not contain, within such a unit, a toilet, lavatory and bathtub
or shower; or
Any room or group of rooms forming a single habitable unit occupied
or intended to be occupied for sleeping or living, but not for cooking
purposes.
|
For the purposes of this definition, a basement or attic that
is accessible from inside a dwelling unit is considered to be part
of the dwelling unit. Common areas and basements and/or attics that
are only accessible through a common area or from the exterior of
the property are not considered to be part of the dwelling unit.
|
The application of a covering or coating that acts as a barrier
between the lead-based paint and the environment and that relies for
its durability on adhesion between the encapsulant and the painted
surface, and on the integrity of the existing bonds between paint
layers and between the paint and the substrate. Encapsulation may
be used as a method of abatement if it is designed and performed so
as to be permanent. (See definition of "permanent'').
The use of rigid, durable construction materials that are
mechanically fastened to the substrate in order to act as a barrier
between lead-based paint and the environment. Enclosure may be used
as a method of abatement if it is designed to be permanent. (See definition
of "Permanent.")
A risk assessment, a lead hazard screen, a lead-based paint
inspection, paint testing, or a combination of these to determine
the presence of lead-based paint hazards or lead-based paint.
An interior or exterior surface that is subject to abrasion
or friction, including, but not limited to, certain window, floor,
and stair surfaces.
The abbreviation for "gram."
Measures designed to reduce or eliminate human exposure to
lead-based paint hazards through methods including interim controls
or abatement or a combination of the two.
A vacuum cleaner device with an included high- efficiency
particulate air (HEPA) filter through which the contaminated air flows,
operated in accordance with the instructions of its manufacturer.
A HEPA filter is one that captures at least 99.97% of airborne particles
of at least 0.3 micrometer in diameter.
An interior or exterior surface that is subject to damage
by repeated sudden force, such as certain parts of door frames.
A set of measures designed to temporarily reduce human exposure
or likely exposure to lead-based paint hazards. Interim controls include,
but are not limited to, repairs, painting, temporary containment and
specialized cleaning.
[Amended 5-14-2013 by Ord. No. 2013-136]
Paint or other surface coatings that contain lead equal to
or exceeding 1.0 milligram per square centimeter or 0.5% by weight
or 5,000 parts per million (ppm) by weight.
Any condition that causes exposure to lead from dust-lead
hazards, soil-lead hazards, or lead-based paint that is deteriorated
or present in chewable surfaces, friction surfaces, or impact surfaces,
and that would result in adverse human health effects.
A surface-by-surface investigation to determine the presence
of lead-based paint and the provision of a report explaining the results
of the investigation.
The most recent publication of the lead hazard information
pamphlet means the pamphlet developed by the EPA, the United States
Department of Housing and Urban Development and the Consumer Product
Safety Commission pursuant to Section 403 of the Toxic Substances
Control Act (15 U.S.C. § 2686), entitled "Protect Your Family
From Lead in Your Home."
An individual who has been trained by an accredited training program, as defined by 40 CFR 745.223, to conduct lead dust wipe tests, whose approval to conduct such dust wipe tests in the City is not subject to suspension or revocation after a finding of nonresponsibility pursuant to § 90-57I.
[Added 5-14-2013 by Ord. No. 2013-136]
The abbreviation for "milligram" (thousandth of a gram).
A person who inhabits a dwelling unit.
A person, firm, corporation, nonprofit organization, partnership,
government, guardian, conservator, receiver, trustee, executor, or
other judicial officer, or other entity which, alone or with others,
owns, holds, or controls the freehold or leasehold title or part of
the title to property, with or without actually possessing it. The
definition includes a vendee who possesses the title, but does not
include a mortgagee or an owner of a reversionary interest under a
ground rent lease.
A method of abatement that permanently eliminates lead-based
paint from surfaces.
A paint surface that is to be scraped, sanded, cut, penetrated
or otherwise affected by rehabilitation work in a manner that could
potentially create a lead-based paint hazard by generating dust, fumes,
or paint chips.
Repairing any physical defect in the substrate of a painted
surface that is causing paint deterioration, removing loose paint
and other material from the surface to be treated, and applying a
new protective coating or paint.
The process of determining, by a certified lead- based paint
inspector or risk assessor, the presence or the absence of lead-based
paint on deteriorated paint surfaces or painted surfaces to be disturbed
or replaced.
An expected design life of at least 20 years.
A roofed open structure projecting from the exterior wall
of a building and having at least 70% of the total area of the vertical
planes forming its perimeter unobstructed in any manner except by
insect screening between floor and ceiling.
[Added 3-14-2006 by Ord. No. 2006-37]
Measures designed to reduce or eliminate human exposure to
lead-based paint hazards through methods including interim controls
and abatement.
The improvement of an existing structure through alterations,
incidental additions or enhancements. Rehabilitation includes repairs
necessary to correct the results of deferred maintenance, the replacement
of principal fixtures and components, improvements to increase the
efficient use of energy, and installation of security devices.
EPA-required certification for all home improvements contractors,
property management firms, handymen or others compensated for renovation
work that involves window replacement or that disturbs more than six
square feet of interior and/or 20 square feet of exterior paint or
surface coating in pre-1978 residential housing and child-occupied
facilities. This EPA requirement also applies to landlords working
on rental properties. The individual must complete training, use safe
work practices and verify that the work area is clean after completion
of renovations.
[Added 5-14-2013 by Ord. No. 2013-136]
A strategy of abatement that entails the removal of building
components that have surfaces coated with lead-based paint and the
installation of new components free of lead-based paint.
A dwelling unit, common areas, building exterior surfaces,
and any surrounding land, including outbuildings, fences and play
equipment affixed to the land, belonging to an owner and available
for use by residents, but not including land used for agricultural,
commercial, industrial or other nonresidential purposes, and not including
paint on the pavement of parking lots, garages, or roadways.
An on-site investigation to determine the existence,
nature, severity, and location of lead-based paint hazards; and
The provision of a report by the individual
or firm conducting the risk assessment explaining the results of the
investigation and options for reducing lead-based paint hazards.[1]
The individual named as the lessee in a lease, rental agreement
or occupancy agreement for a dwelling unit.
The abbreviation for "microgram" (millionth of a gram).
A visual examination of all surfaces within the dwelling
unit, including any basement and/or attic as per the definition of
a dwelling unit. A visual assessment shall not be considered to be
complete if the examining individual is locked out or otherwise prevented
from inspecting any room or space within the dwelling unit. For the
purpose of determining whether or not a deteriorated paint violation
is interior or exterior as it relates to windows, in addition to that
portion of the window component that faces the interior, all exterior-facing
portions of the window component, with the exception of the exterior
frame or trim, are considered to be interior.
[Amended 5-14-2013 by Ord. No. 2013-136]
A process of removing loose paint in which the painted surface
to be sanded or scraped is kept wet to minimize the dispersal of paint
chips and airborne dust.
The area between the interior window sill (stool) and the
storm window frame. If there is no storm window, the window trough
is the area that receives both the upper and lower window sashes when
they are both lowered.
A sample collected by wiping a representative surface of known area, as determined by § 90-57, with an acceptable wipe material as defined in ASTM E 1792, "Standard Specification for Wipe Sampling Materials for Lead in Surface Dust."
[Amended 5-14-2013 by Ord. No. 2013-136]
An interior or exterior area where lead-based paint hazard
reduction activity takes place. There may be more than one worksite
in a dwelling unit or at a residential property.
[1]
Editor's Note: The former definition of soil-lead hazard,
which immediately followed this definition, was repealed 5-14-2013
by Ord. No. 2013-136.
A.
For purposes of this article, all paint on the interior
or exterior of any residential building on which the original construction
was completed prior to January 1, 1978, shall be presumed to be lead-based.
[Amended 7-18-2006 by Ord. No. 2006-224]
B.
For purposes of this article, all paint on the exterior
of any nonresidential structure on which the original construction
was completed prior to January 1, 1978, shall be presumed to be lead-based.
C.
Any person seeking to rebut these presumptions shall establish through the means set forth in § 90-56 that the paint on the building or structure in question is not lead-based paint.
D.
Residential buildings shall be maintained free of
lead-based paint hazards.
[Amended 7-18-2006 by Ord. No. 2006-224]
A.
Deteriorated paint violation. The interior and exterior
of any residential building on which the original construction was
completed prior to January 1, 1978, and the exterior of any nonresidential
structure on which the original construction was completed prior to
January 1, 1978, shall be maintained in a condition such that the
paint thereon does not become deteriorated paint, unless the deteriorated
paint surfaces total no more than:
[Amended 7-18-2006 by Ord. No. 2006-224; 5-14-2013 by Ord. No.
2013-136]
(1)
Twenty square feet on exterior surfaces;
(2)
Two square feet in any one interior room or space; or
(3)
Ten percent of the total surface area on an interior or exterior
type of component with a small surface area. Examples include windowsills,
baseboards, and trim.
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For the purpose of determining whether or not a deteriorated
paint violation is interior or exterior as it relates to windows,
in addition to that portion of the window component that faces the
interior, all exterior-facing portions of the window component, with
the exception of the exterior frame or trim, are considered to be
interior.
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B.
Bare soil violation. Bare soil shall not be present
within the dripline of any residential building on which the original
construction was completed prior to January 1, 1978.
[Amended 7-18-2006 by Ord. No. 2006-224]
C.
Dust-lead hazard violation. A dust-lead hazard shall be identified and cited in accordance with the procedures set forth in § 90-55, Inspection for violations.
[Added 3-14-2006 by Ord. No. 2006-37]
D.
Dust sample violation. A dust sample violation shall be cited upon a failure by an owner of a property to timely cause dust samples to be taken and certified test results to be submitted to the Department in accordance with the procedures set forth in §§ 90-55 and 90-57 of this article.
[Added 8-21-2007 by Ord. No. 2007-305[1]; amended 7-15-2008 by Ord. No. 2008-254; 10-11-2011 by Ord. No.
2011-326; 5-14-2013 by Ord. No. 2013-136]
[1]
Editor's Note: This ordinance also provided
that it shall take effect 8-1-2007. Ordinance No. 2007-342, adopted
9-19-2007, amended Ord. No. 2007-305 to change the effective date
to 10-15-2007.
[Amended 8-21-2007 by Ord. No. 2007-305[1]; 7-15-2008 by Ord. No. 2008-254; 10-11-2011 by Ord. No.
2011-326; 5-14-2013 by Ord. No. 2013-136]
All inspections, including, but not limited to, inspections performed as part of an application for a certificate of occupancy pursuant to § 90-16 of the City Code, a renewal of a certificate of occupancy, or based upon the filing of a complaint, shall include a visual assessment for deteriorated paint and bare soil violations. With respect to units in structures containing five or fewer units and located in the high-risk area identified by the Mayor or the Mayor's designee, when the visual assessment identifies no interior deteriorated paint violation, the owner shall cause dust samples to be taken and certified test results to be obtained in accordance with the protocols established in § 90-57B to determine whether a dust-lead hazard exists. For the purpose of determining whether or not a deteriorated paint violation is interior or exterior as it relates to windows, in addition to that portion of the window component that faces the interior, all exterior-facing portions of the window component, with the exception of the exterior frame or trim, are considered to be interior. The owner shall be given 60 days to cause the dust samples to be taken and to submit all certified test results to the Department. If all certified results are not submitted within the specified time, a dust sample violation shall be cited. When a dust-lead hazard is identified and not cleared, a dust-lead hazard violation shall be cited. A certification of clearance as described in § 90-57 shall be required in order to clear a dust-lead hazard violation. The high-risk area to be identified by the Mayor or the Mayor's designee shall be based on the County Health Department inspections data in conjunction with its elevated blood-lead level inspections. Where the filing of a complaint leads to an inspection, the inspection shall include the unit which is the focus of the complaint and all common areas.
[1]
Editor's Note: This ordinance also provided
that it shall take effect 8-1-2007. Ordinance No. 2007-342, adopted
9-19-2007, amended Ord. No. 2007-305 to change the effective date
to 10-15-2007.
Following a visual assessment which results
in the citation of a deteriorated paint violation, the violation may
be removed only by one of the following methods:
A.
Certification by a lead-based paint inspector or risk
assessor that the property has been determined through a lead-based
paint inspection conducted in accordance with the federal regulations
at 40 CFR 745.227(b) not to contain lead-based paint.
B.
Certification by a lead-based paint inspector or risk assessor that all cited violations of § 90-54, Violations, have been abated, or interim controls implemented, and clearance has been achieved in accordance with standards found in § 90-57; provided, however, that the property has been inspected pursuant to those standards since the deteriorated paint or dust-lead hazard violation was last cited, including a full visual assessment.
[Amended 3-14-2006 by Ord. No. 2006-37; 5-14-2013 by Ord. No. 2013-136]
C.
[1] Where exterior deteriorated paint violations, including
deteriorated paint violations on an open porch, and/or bare soil violations
are cited, or where interior deteriorated paint violations are cited
in a common area, as per the definition of a "dwelling unit," clearance
may be established through a visual assessment by a City inspector
after reduction measures have been implemented.
[Amended 3-14-2006 by Ord. No. 2006-37; 5-14-2013 by Ord. No. 2013-136]
[1]
Editor's Note: Former Subsection C, concerning certification
by the Rochester Housing Authority or other state or federal supervising
agency, was repealed 5-14-2013 by Ord. No. 2013-136, which ordinance
also relettered former Subsection D as Subsection C.
[Amended 3-14-2006 by Ord. No. 2006-37; 5-14-2013 by Ord. No.
2013-136]
The remedy available through § 90-56B and the dust sampling required by § 90-55 shall require the following certification of clearance standards:
B.
Required activities.
(1)
An examination shall include a full visual assessment, dust sampling,
submission of samples for analysis for lead, interpretation of sampling
results, and preparation of a report. Examinations shall be performed
in all dwelling units in accordance with this section.
(2)
A full visual assessment of every area of the subject dwelling unit
shall be performed to determine if deteriorated paint and/or visible
amounts of dust, debris, paint chips or other residue are present.
Interior painted surfaces shall be examined for the presence of deteriorated
paint. If deteriorated paint and visible dust, debris, paint chips
or residue are present, they must be eliminated prior to the continuation
of the clearance examination.
(3)
Dust samples shall be wipe samples and shall be taken on floors,
excluding open porches, and interior windowsills and window troughs
that have a paint history. Dust samples shall be collected and analyzed
in accordance with this section.
(a)
Dust samples shall be taken from each of no more than four rooms.
The selection of rooms to be tested, where applicable, shall include
no less than one bedroom and the living room. At least one wipe sample
shall be taken from a window trough or a windowsill with a paint history,
if present, and one from a floor in each room. Where there are less
than four rooms, then all rooms shall be sampled.
(b)
Dust samples shall be collected by persons authorized and/or certified by the EPA as a lead inspector, risk assessor, dust wipe technician, or lead sampling technician whose approval to conduct such dust wipe tests in the City is not subject to suspension or revocation after a finding of nonresponsibility pursuant to § 90-57I.
(c)
The method for collecting dust samples shall include:
[1]
Laying out the sample area by using a template or tape to outline
the area;
[2]
Label each tube with its own identification number to be recorded
on the sample collection form;
[3]
Put on clean gloves before taking each sample; do not touch
anything other than the wipe after putting on the gloves;
[4]
Use an unused wipe to sample the entire area inside the template
or tape as follows:
[a]
Starting in the upper corner of the sample area,
use a side-to-side motion, wiping the entire area, pressing firmly
with your fingers;
[b]
Fold the wipe sample in half, dirty side in;
[c]
With the clean side of the sample and starting
at the upper corner, use a top-to-bottom motion, wiping the entire
area, pressing firmly with your fingers;
[d]
Fold the wipe sample in half again, dirty side
in;
[e]
With the clean side of the sample, wipe around
the entire perimeter, cleaning the corners, fold the sample; and
[f]
Place the folded wipe sample in the tube.
[5]
Write down the measurements of the sample area on the collection
form;
[6]
Clean the sampling equipment after each wipe sample is taken;
[7]
Forward wipe samples to an authorized laboratory.
C.
Report. The clearance examiner shall ensure that an examination report
is prepared that provides documentation of the examination.
(1)
The report shall include the following information:
(a)
The address of the residential property and, if only part of
a multifamily property is affected, the specific dwelling units and
common areas affected;
(b)
The date(s) of the examination;
(c)
The name, address, and signature of each person performing the
examination, including their EPA certification number;
(d)
The results of the visual assessment for the presence of deteriorated
paint and visible dust, debris, residue or paint chips;
(e)
The results of the analysis of dust samples, in ug per square
foot, by location of sample; and
(f)
The name and address of each laboratory that conducted the analysis
of the dust samples, including the identification number for each
such laboratory recognized by the EPA under Section 405(b) of the
Toxic Substances Control Act [15 U.S.C. § 2685(b)].
D.
Clearance standards. Where dust sampling is required by § 90-55 or where an interior deteriorated paint or dust-lead hazard violation has been cited in a dwelling unit, the following dust-lead standards shall be met before a certificate of occupancy may be issued or a violation removed.
E.
Validity of wipe test results. For the purposes of meeting the requirement in § 90-55, the results of all successful wipe tests shall be valid for a period of three years, unless a subsequent inspection of the dwelling unit identifies an interior deteriorated paint violation, which would immediately cause the previous wipe tests results to be invalid.
F.
Requirement to avoid conflict of interest regarding clearance inspection.
All examinations shall be performed by persons or entities independent
of those performing hazard reduction or maintenance activities.
H.
As part of the Department's efforts to ensure consistency and compliance with the required clearance standards, random audits will be performed on all third-party lead clearance providers. Nonrandom audits may also be performed based on a reasonable suspicion that a third-party lead clearance provider is not providing proper tests, including, but not limited to, complaints received about the provider or about a specific property inspected by the provider. If the results indicate noncompliance with these standards, the Director may take whatever action is necessary as set forth in Subsection I of this section.
I.
Rejection of clearance examination report/nonresponsibility of issuer.
(1)
The Director, or the Director's designee, is authorized to reject
a lead clearance examination report that does not meet the requirements
set forth herein or that is found after an inspection to not substantially
represent the conditions present at the premises for which the report
was prepared. The reasons for the rejection shall be set forth in
writing to the issuer of the report and to the owner of the property
to which the report pertains.
[Amended 6-20-2017 by Ord. No. 2017-170]
(2)
No lead clearance examination report shall be accepted from an issuer
who does not meet the qualifications set forth herein or who has been
found by the Director or the Director's designee to be nonresponsible.
(3)
The Director shall inform an issuer in writing of a nonresponsibility
determination and the reasons therefor.
(4)
Upon making a nonresponsibility determination, the Director may bar
the issuer and affiliated organizations, as further set forth herein,
from submitting lead clearance reports to the City for a period of
not to exceed three years. If a corporation is found to be a nonresponsible
issuer, that finding may be applied to a parent, affiliate or subsidiary
corporation, if the Director finds that an officer, director or person
directly or indirectly controlling 10% or more of the stock of the
corporation found to be nonresponsible is an officer, director or
person directly or indirectly controlling 10% or more of the stock
of the parent, affiliate or subsidiary corporation. If an unincorporated
association is found to be nonresponsible, that finding may be extended
to other related associations upon a finding by the Director that
the related associations have substantially the same ownership, management
or operating personnel.
(5)
Guidelines for nonresponsibility determinations. In determining the
nonresponsibility of an issuer, the Director shall consider:
(a)
The record of performance of the issuer, including but not limited
to lack of adequate expertise, prior experience with lead clearance
examinations or lack of ability to perform the clearances in a timely,
competent and acceptable manner. Evidence of such a lack of ability
to perform may include, but shall not be limited to, evidence of suspension
or revocation for cause of any professional license of any director
or officer or any holder of 5% or more of the issuer's stock or equity;
suspension or debarment by the state or federal government; or a history
of lead clearance examinations that do not meet federal, state or
City requirements.
(b)
The record of integrity of the issuer.
(c)
The availability to the issuer of the necessary organization,
experience, operational controls and technical skills, and the necessary
technical equipment and facilities required for performance of the
clearance examinations.
(d)
The compliance by the issuer with any special or general standards
of responsibility.
(e)
The compliance by the issuer with standards which may be established
by the Director pursuant to rule or regulation.
(f)
Criminal conduct in connection with lead clearance examinations,
government contracts or business activities. Evidence of such conduct
may include a judgment of conviction or information obtained as a
result of a formal grant of immunity in connection with a criminal
prosecution of the issuer, any director or officer, or holder of 5%
or more of the shares or equity of the issuer or any affiliate of
the issuer.
(g)
Violations of the Labor Law.
(h)
Violations of the Environmental Conservation Law or other federal
or state environmental statutes or regulations.
(i)
Any other cause of so serious or compelling a nature that it
raises questions about the responsibility of an issuer, including,
but not limited to, submission to the City of a false or misleading
statement in connection with a lead clearance examination.
(j)
In addition to the factors specified above, the Director may
also give due consideration to any other factors considered to bear
upon issuer responsibility, including, but not limited to, any mitigating
factors brought to the City's attention by the issuer.
(6)
The Director may develop rules and regulations to implement these
guidelines and may request a sworn statement of issuer qualifications
to gather the necessary information set forth herein. The Director
may use the information contained in the response to the sworn statement
in making a determination of issuer nonresponsibility.
(7)
A nonresponsibility determination by the Director may be appealed
by the issuer to the Commissioner by delivery to the Commissioner
of a written notice of appeal within 10 days after receipt of the
determination of the Director. The Commissioner shall offer the issuer
an opportunity to be heard, at which a hearing officer appointed by
the Commissioner who is not a City employee shall preside. Such hearing
shall be scheduled as soon as possible after a request. The issuer
shall be permitted to be represented by counsel, to submit evidence
and summon witnesses on his or her behalf and to inspect documents
and cross-examine opposing witnesses. Compliance with the technical
rules of evidence shall not be required. The hearing officer shall
make a recommendation to the Commissioner. The Commissioner shall
make the final determination in writing, based upon evidence produced
at the hearing. In the final determination, the Commissioner may accept,
reject or modify the determination and/or penalty imposed by the Director.
The determination of the Commissioner shall be the final determination
of the City and shall be subject to review pursuant to Article 78
of the Civil Practice Law and Rules.
A.
No person shall disturb or remove lead-based paint or in any other way generate excessive dust or debris during work on the interior or exterior of any existing building or structure except in accordance with the requirements of this section and §§ 90-59 and 90-60. Any home improvement contractor, property management firm, handyman or other person compensated for renovation work that involves window replacement or that disturbs more than six square feet of interior, and/or more than 20 square feet of exterior, paint or surface coating, in a residential building or child-occupied facility for which the original construction was completed prior to January 1, 1978, must possess an EPA RRP certification.
B.
Exemptions. This section shall not apply to activities
that disturb or remove paint where the activities are being performed
on buildings on which construction was completed on or after January
1, 1978.
C.
Sign required when exterior lead-based paint (or presumed
lead-based paint) is disturbed.
(1)
Not later than the commencement date of any lead-based
paint hazard reduction work, the owner, or the contractor when the
owner has entered into a contract with a contractor to perform such
work on the exterior of a building or structure, shall post signs
in a location or locations clearly visible to the adjacent properties
stating the following:
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LEAD-BASED PAINT HAZARD REDUCTION WORK IN PROGRESS
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PUBLIC ACCESS TO WORK AREA PROHIBITED
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POSTED IN ACCORDANCE WITH CHAPTER 90 OF THE
CITY OF ROCHESTER CODE
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FOR FURTHER INFORMATION, PHONE --------------
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(2)
The sign required by Subsection C(1) shall be not less than 24 inches square and shall be in large boldface capital letters no less than 1/2 inch in size, and shall contain the notification in both English and Spanish. The sign required by this subsection shall remain in place until the lead-based paint hazard reduction work has been completed.
(3)
Where it is not possible to post signs in a conspicuous
location or locations clearly visible to the adjacent properties,
the owner or, where the owner has entered into a contract with a contractor
to perform lead-based paint hazard reduction work, the contractor
shall provide the notice in written form, such as a letter or memorandum,
to the occupants of adjacent properties.
D.
Notice to tenants. Where lead-based paint hazard reduction
work is to be performed on the interior or exterior of buildings occupied
by one or more tenants, not less than three business days before any
lead-based paint hazard reduction work is to commence the owner shall
provide the following information:
(1)
Contents of notice. Provide written notice to tenants
of the building on which the work is being performed that lead-based
paint hazard reduction work is being performed. This notice, which
shall be in both English and Spanish, shall be in compliance with
the EPA prerenovation notification rules set forth in 40 CFR Part
745, Subpart E, shall be in the form of a sign, letter or memorandum,
and shall prominently state the following:
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Work is scheduled to be performed beginning __________ (date) on this property that may disturb or remove lead-based paint. The persons performing this work are required to follow federal and local laws regulating work with lead-based paint. You may obtain information regarding these laws, or report any suspected violations of these laws, by calling the City of Rochester at ________ (a number to be designated by the City). The owner of this property is also required to provide tenants with a copy of the lead hazard information pamphlet. Retaliatory action against tenants is prohibited by § 90-63 of the Municipal Code.
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(2)
The owner shall provide all tenants in the building
with a copy of the lead hazard information pamphlet.
E.
Notice by contractor. Where lead-based paint hazard
reduction work is being performed by a contractor on residential property,
the contractor shall, at least three business days prior to the commencement
of such work, notify the property owner of potential lead hazards
during the project by delivering to the owner a copy of the lead hazard
information pamphlet.
F.
Early commencement of work by owner. A property owner
may commence, or may authorize a contractor to commence, lead-based
paint hazard reduction work less than three business days after providing
notices required above when such work must be commenced immediately
to correct an emergency condition, such as work necessitated by nonroutine
failures of equipment, that were not planned but result from a sudden,
unexpected event that, if not immediately attended to, presents a
safety or public health hazard, or threatens equipment and/or property
with significant damage.
A.
Occupant protection.
(1)
Occupants shall not be permitted to enter the worksite
during hazard reduction activities (unless they are employed in the
conduct of these activities at the worksite) until after hazard reduction
work has been completed and clearance has been achieved.
(2)
Occupants shall be temporarily relocated during hazard
reduction activities and until a clearance examination has been successfully
completed on the occupant's unit, and occupants who relocate to a
unit not owned by their landlord shall not be liable for rent accruing
during that time, except that relocation shall not be necessary if:
(a)
Treatment will not disturb lead-based paint,
dust-lead hazards or soil-lead hazards;
(b)
Only the exterior of the dwelling unit is treated,
and windows, doors, ventilation intakes and other openings in or near
the worksite are sealed during hazard control work and cleaned afterward,
and entry free of dust-lead hazards, soil-lead hazards and debris
is provided;
(c)
Treatment of the interior will be completed
within one period of eight-daytime hours, the worksite is contained
so as to prevent the release of leaded dust and debris into other
areas, and treatment does not create other safety, health or environmental
hazards (e.g., exposed live electrical wiring, release of toxic fumes,
or on-site disposal of hazardous waste); or
(d)
Treatment of the interior will be completed
within 15 calendar days, the worksite is contained so as to prevent
the release of leaded dust and debris into other areas, treatment
does not create other safety, health or environmental hazards, and,
at the end of work on each day, the worksite and the area within at
least 10 feet of the containment area is cleaned to remove any visible
dust or debris, and occupants have safe daily access to sleeping areas
and bathroom and kitchen facilities.
(3)
The dwelling unit and the worksite shall be secured
against unauthorized entry and occupants' belongings protected from
contamination by dust-lead hazards and debris during hazard reduction
activities. Occupants' belongings in the containment area shall be
relocated to a safe and secure area outside the containment area,
or covered with an impermeable covering with all seams and edges taped
or otherwise sealed.
(4)
In addition to protections afforded elsewhere by law,
if interior hazard reduction activities will not be or are not completed
within 60 calendar days, occupants shall have the right to terminate
their lease and shall have no further obligation to pay rent under
that rental agreement; provided, however, that this subsection shall
not relieve the occupant of the obligation to pay any previously accrued
rent for which he or she is otherwise liable.
B.
Worksite preparation.
(1)
The worksite shall be prepared, including the placement
of containment barriers, to prevent the release of leaded dust and
contain lead-based paint chips and other debris from hazard reduction
activities within the worksite until they can be safely removed. Practices
that minimize the spread of leaded dust, paint chips, soil and debris
shall be used during worksite preparation.
(2)
A warning sign, as defined in § 90-58C(1), shall be posted at each entry to a room where hazard reduction activities are conducted when occupants are present or at each main and secondary entryway to a building from which occupants have been relocated. Each warning sign shall be posted irrespective of employees' lead exposure and, to the extent practicable, provided in the occupants' primary language.
[Amended 5-14-2013 by Ord. No. 2013-136]
A.
Lead-based paint shall not be applied to any exterior
or interior surface.
B.
Prohibited methods. The following methods of paint
removal shall not be used:
(1)
Open flame burning or torching.
(2)
Machine sanding or grinding without a high-efficiency
particulate air (HEPA) local exhaust control.
(3)
Abrasive blasting or sandblasting without HEPA local
exhaust control.
(4)
Heat guns operating above 1,100° F. or charring
the paint.
(5)
Dry sanding or dry scraping, except dry scraping in
conjunction with heat guns or within 1.0 foot of electrical outlets,
or when treating defective paint spots totaling no more than 2 square
feet in any one interior room or space, or totaling no more than 20
square feet on exterior surfaces.
(6)
Paint stripping in a poorly ventilated space using
a volatile stripper that is a hazardous substance in accordance with
regulations of the Consumer Product Safety Commission at 16 CFR 1500.3,
and/or a hazardous chemical in accordance with the Occupational Safety
and Health Administration regulations at 29 CFR 1910.1200 or 1926.59,
as applicable to the work.
C.
Worksite preparation. The worksite shall be prepared in accordance with § 90-59B.
[Amended 3-14-2006 by Ord. No. 2006-37]
D.
Specialized cleaning. After hazard reduction activities
have been completed, the worksite shall be cleaned using cleaning
methods, products and devices that are successful in cleaning up dust-lead
hazards, such as a HEPA vacuum or other method of equivalent efficacy,
and lead-specific detergents or equivalent.
E.
De minimis levels. Safe work practices are not required
when maintenance or hazard reduction activities do not disturb painted
surfaces that total more than:
A.
For emergency actions necessary to safeguard against imminent or immediate danger to human life, health or safety, or to protect property from further structural damage, including demolitions ordered pursuant to § 47A-16B and C of the Municipal Code, occupants shall be protected from exposure to lead in dust and debris generated by such emergency actions to the extent practicable. This exemption does not apply to any work undertaken subsequent to or above and beyond such emergency actions, other than the demolitions noted above.
B.
Performance of lead-based paint hazard reduction or
lead-based paint abatement on an exterior painted surface as required
under this article may be delayed for a reasonable time during a period
when weather conditions render impossible the completion of conventional
construction activities; provided, however, that this limitation shall
continue only for the period in which work cannot be performed in
the work-safe manner as provided for herein.
C.
A building complex with 10 or more units, any housing development or complex designated for seniors, and all studio apartments shall be exempt from the requirements for dust sampling established in § 90-55. A "building complex" for the purposes of this section includes any proximately related grouping or combination of units or buildings that is structured under a single ownership or management contract, regardless of whether such buildings are contiguous. This exemption does not exempt a property from a dust sampling required by any other local, state, or federal law or regulation.
[Added 10-11-2011 by Ord. No. 2011-326]
A.
It is unlawful for an owner, or any person acting
on his or her behalf, to take any retaliatory action toward a tenant
who reports a suspected lead-based paint hazard to the owner or to
the City. Retaliatory actions include but are not limited to any actions
that materially alter the terms of the tenancy (including rent increases
and nonrenewals) or interfere with the occupants' use of the property.
B.
There shall be a rebuttable presumption that any attempt
by the owner to raise rents, curtail services, refuse to renew or
attempt to evict a tenant within six months after any report to the
City or the owner or any enforcement action in connection with a suspected
lead hazard is a retaliatory action in violation of this section,
except that in instances of nonpayment of rent or commission of waste
upon the premises by the tenant no such presumption shall apply. After
six months from the date of the reporting of a suspected lead hazard,
or the most recent activity related to any enforcement action, the
defense of retaliatory eviction shall remain available to the tenant,
but without the benefit of the presumption created by this section.
C.
The provisions of this section shall not be given
effect in any case in which it is established that the condition from
which the complaint or action arose was caused by the tenant, a member
of the tenant's household, or a guest of the tenant; nor shall it
apply in a case where a tenancy was terminated pursuant to the terms
of a lease as a result of a bona fide transfer of ownership.
The City shall continue to send notices to the County of Monroe listing any health and safety violations found in properties inspected by the City. Any violation of § 90-54 shall be included on that list.
A.
The City shall maintain a database, accessible to
the public, of all residential properties where lead hazards have
been identified, reduced and controlled with funds received by the
City from the United States Department of Housing and Urban Development
which require that such a database be maintained. The City shall further
maintain a database of all residential properties granted a certificate
of occupancy after the effective date of this article.
B.
The databases created pursuant to this section shall
be kept available for "walk- in" inspection by the public. No person
requesting access shall be required to complete a freedom of information
request in order to view this database.
