Int. No. ___
By Council Members Perkins, Lopez, Quinn, Reed, Boyland, Rivera, Brewer, Jackson, Liu,
Yassky, Barron, Reyna, Clarke, Sanders, Recchia, Vann, Katz, Gerson, Gioia, Baez,
DeBlasio, Serrano, Foster, Monseratte, Jennings, Seabrook, Addabbo, Moskowitz, Koppell
and Davis
A Local Law
To amend the administrative code of the city of New York, in relation to childhood lead
poisoning prevention, including the avoidance and correction of lead-based paint hazards in
housing, schools, day care facilities and playgrounds, the repeal of local law number 38 for
the year 1999 and the repeal of subdivision h of section 27-2013 and section 27-2126 of such code.
Be it enacted by the Council as follows:
Section 1. This local law shall be known and may be cited as the New York City Childhood Lead Poisoning Prevention Act of 2002.
§2. Local law number 38 for the year 1999 is hereby REPEALED.
§3. Subdivision h of section 27-2013 of the administrative code of the city of New York is hereby REPEALED.
§4. Subchapter 2 of chapter 2 of title 27 of the administrative code of the city of New York is amended by adding a new article 14 to read as follows:
Article 14
Lead Poisoning Prevention and Control
§27-2056.1 Statement of Findings and Purposes.
§27-2056.2 Definitions.
§27-2056.3 Owners' Duty to Correct.
§27-2056.4 Owners' Duty to Notify Occupants and Investigate.
§27-2056.5 Presumption.
§27-2056.6 Violation in a Dwelling Unit.
§27-2056.7 Violation in Common Areas of a Multiple Dwelling.
§27-2056.8 Violation in a Dwelling Unit Upon Turnover or by Rule of the Department.
§27-2056.9 Department Inspections.
§27-2056.10 Department Implementation and Enforcement.
§27-2056.11 Work Practices.
§27-2056.12 Reporting.
§27-2056.13 Transmittal of Violations to the Department of Health.
§27-2056.14 Request to the Department from the Department of Health to Execute an
Order Pursuant to § 17-147 of the Administrative Code.
§27-2056.15 Waiver of Benefit Void.
§27-2056.16 Compliance by the Department.
§27-2056.1 Statement of findings and purposes. The council finds that lead poisoning from paint containing lead is a preventable childhood disease and that the response to the public health crisis caused by lead poisoning of children has remained inadequate. The council further finds that the hazard in dwellings that may occur from paint containing lead is subject to many factors, such as the age of a building and its maintenance. The council therefore recognizes that it cannot legislate a single maintenance standard for all dwellings to eliminate this hazard. Instead, the council by enacting this article makes it the duty of every owner of a multiple dwelling to investigate dwelling units for lead-based paint hazards and to address such hazards on a case-by-case basis as the conditions may warrant, taking such actions as are necessary to prevent a child from becoming lead poisoned. Having established this duty, the council finds that sufficient information exists to guide owners in making determinations about the existence of lead-based paint hazards. See, e.g., United States environmental protection agency, "Identification of Dangerous Levels of Lead; Final Rule" Federal Register, Vol. 66, No. 4 ( January 5, 2001); United States department of housing and urban development, "Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing" (June 1995, revised 1997).
The council further finds that in any dwelling unit where a child under the age of seven resides, or in the common areas of the dwelling in which such dwelling unit is located, the existence of lead-based paint constitutes an immediately hazardous condition when it is peeling or located on a deteriorated subsurface. The council further finds that any deficiency in the maintenance of a dwelling or dwelling unit that, if uncorrected, may cause paint to peel or a painted subsurface to deteriorate is also an immediately hazardous condition.
In order that the department of housing preservation and development may secure the appropriate correction of these immediately hazardous conditions, this article makes the conditions stated herein, or established by rules pursuant to this article, a class C immediately hazardous violation under the housing maintenance code. The council declares that it is reasonable and necessary for the department to diligently perform its duties so that the hazardous conditions identified in this article shall be eradicated from all applicable housing to the maximum extent possible.
According to the federal centers for disease control and prevention , a child whose blood-lead level is equal to or exceeds 20 micrograms per deciliter is seriously lead poisoned, and elevated blood lead levels at least as low as 10 micrograms per deciliter are associated with adverse effects. In Fiscal Year 2000, the New York city department of health identified 742 children whose blood-lead level was equal to or exceeded 20 micrograms per deciliter. In every case of a lead poisoned child at this blood-lead level, the city is required under its health code to conduct an environmental investigation for the source of a child's lead poisoning. The city must incur the expense of this investigation as well as other costs, including a child's medical treatment and remedial education. As well, in 2000, the New York city department of health identified 4,831 children with elevated blood lead levels of 10 micrograms per deciliter or above. In addition, the New York state department of health has reported a blood-lead testing rate for children ages one and two residing in the city of New York of only 51%, even though the testing of all such children is mandatory under state law. The council finds this high number of lead poisoned children and children with elevated blood lead levels, even at this low rate of blood-lead testing to constitute a public health crisis.
The council declares that it is reasonable and necessary to increase the rate of blood-lead testing in fiscal years 2003 and 2005 to 75% and 90%, respectively, and to reduce the number of children who become lead poisoned to less than 400 and 250, respectively. In the event that any of these goals are not achieved, this local law requires the department of health to make recommendations to the council to amend the law as necessary to achieve such goal.
The council further finds that the administration and enforcement of its lead poisoning prevention programs is unnecessarily divided among several agencies of the city, causing confusion and inefficiency. While it is intended that the department of housing preservation and development remain the agency responsible for the implementation and enforcement of this article, it is also intended that the department of health shall have the primary responsibility for promulgating and interpreting rules and developing necessary procedures as well as monitoring pursuant to this article.
§27-2056.2 Definitions. Whenever used in this article:
(1) "Accessible surface" shall mean any surface that because of its height or location is readily accessible to children under seven years of age and forms an edge or protrudes from any flat surface, including but not limited to, doors, door frames, window sills, moldings, railings, stairs, window frames, trim, baseboards, and cabinets.
(2) "Deteriorated subsurface" shall mean an unstable or unsound subsurface, including but not limited to, rotted or decayed wood, or wood or plaster that has been subject to moisture or disturbance.
(3) "Friction Surface" shall mean any surface that touches or is in contact with another surface, such that the two surfaces are capable of relative motion, thereby encountering resistance. Friction surfaces shall include but not be limited to window frames and jambs, doors, and hinges.
(4) "Impact Surface" shall mean any surface that is subject to damage by repeated sudden force such as certain parts of door frames, moldings, or baseboards.
(5) "Lead-based paint hazard" shall mean any condition in a multiple dwelling that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, or lead-based paint that is peeling or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects.
(6) "Lead-based paint" shall mean paint or other similar surface coating material containing 0.7 milligrams of lead per square centimeter (mg/cm²) or greater, as determined by laboratory analysis, or by an x-ray fluorescence analyzer. If an x-ray fluorescence analyzer is used, readings shall be corrected for substrate bias when necessary as specified by the performance characteristic sheets released by the United States environmental protection agency and the United States department of housing and urban development for the specific x-ray fluorescence analyzer used. X-ray fluorescence readings shall be classified as positive, negative or inconclusive in accordance with the United States department of housing and urban development "Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing" (June 1995, revised 1997) and the performance characteristic sheets released by the United States environmental protection agency and the United States department of housing and urban developmentfor the specific x-ray fluorescence analyzer used. X-ray fluorescence readings that fall within the inconclusive zone, as determined by the performance characteristic sheets, shall be confirmed by laboratory analysis of paint chips, results shall be reported in mg/cm² and the measure of such laboratory analysis shall be definitive. If laboratory analysis is used to determine lead content, results shall be reported in mg/cm². Where the surface area of a paint chip sample cannot be accurately measured or if an accurately measured paint chip sample cannot be removed, laboratory analysis may be reported in percent by weight. In such case, lead-based paint shall mean any paint or other similar surface-coating material containing more than 0.5% of metallic lead, based on the non-volatile content of the paint or other similar surface-coating material.
(7) "Lead-contaminated dust" shall mean dust containing lead at 40 micrograms per square foot (g/ft²) on a floor, 250 g/ft² on window sills, and 400 g/ft² on window wells, or above, or such more stringent standards as may be adopted by the New York City board of health.
(8) "Peeling" shall mean that the paint or other surface-coating material is curling, cracking, scaling, flaking, blistering, chipping, chalking or loose in any manner, such that a space or pocket of air is behind a portion thereof or such that the paint is not completely adhered to the underlying surface, or that such paint or other surface-coating material is on an unstable or unsound surface including, but not limited to, rotted or decayed wood or wood or plaster that has been subjected to moisture.
(9) "Rule" or "rules" shall mean a rule or rules promulgated pursuant to section 1043 of the New York city charter.
(10) "Turnover" shall mean the occupancy of a dwelling unit subsequent to the termination of a tenancy and the vacatur by a prior tenant of such dwelling unit.
(11) "Underlying defect" shall mean any condition in a dwelling or dwelling unit, the existence of which constitutes a violation of the housing maintenance code, the building code, the multiple dwelling law, the health code, or any other applicable law, rule or regulation, that if uncorrected may cause paint to peel or deteriorate, or a painted subsurface to deteriorate or fail. When correcting an underlying defect, the repair shall eliminate the source of such condition.
(12) "Window" shall mean the non-glass parts of a window, including but not limited to any window sash, window well, window jamb, window sill, or window molding.
§27-2056.3 Owners' Duty to Correct. The existence of a lead-based paint hazard in any multiple dwelling where a child under seven years of age resides is hereby declared to constitute a condition dangerous to life and health. An owner shall take action to prevent the occurrence of such a condition and shall expeditiously correct such a condition when it exists. If the lead-based paint hazard is caused in whole or in part by an underlying defect, an owner shall correct the underlying defect to prevent a further lead-based paint hazard.
§27-2056.4. Owners' Duty to Notify Occupants and to Investigate.
a. In any dwelling unit in a multiple dwelling where a child under seven years of age resides, and in common areas, as defined in section 27-2056.7 of this article, the owner shall cause an investigation to be made for lead-based paint hazards at least once a year and more often if necessary, such as when an owner knows or should have known of a condition that may cause a lead-based paint hazard, a tenant makes a complaint of a lead-based paint hazard or requests an inspection, or the department issues a notice of violation or orders the correction of a violation. It shall be the duty of each owner to ascertain whether such a child resides therein.
b. No occupant in a dwelling unit shall refuse or unreasonably fail to provide accurate and truthful information regarding the residency of a child under seven years of age therein, nor shall an occupant refuse access to the owner at a reasonable time and upon reasonable prior notice to any part of the premises for the purpose of investigation and repair of lead-based paint hazards.
c. All leases offered to tenants in multiple dwellings must contain a notice, conspicuously set forth therein, which advises tenants of the obligation of the owner as set forth in subdivision a of this section and of the obligation of the tenant as set forth in subdivision b of this section. Such notice must be in a manner approved by the department, the content of which shall be in English and Spanish at a minimum. The owner shall provide the tenant with the pamphlet described in subdivision e of section 27-2056.9 of this article.
d. The owner of a multiple dwelling erected prior to January first, nineteen hundred sixty shall provide to an occupant of a dwelling unit at the signing of a lease, including a renewal lease, if any, or upon any agreement to lease, or at the commencement of occupancy if there is no lease, a notice in English and Spanish inquiring whether a child under seven years of age resides or will reside therein. If there is a lease, such notice will be attached as a rider to the lease. Such notice shall be completed by the occupant at the time of such signing of a lease, including a renewal lease, if any, or such agreement to lease, or at such commencement of occupancy.
e. Each year, an owner of a multiple dwelling shall deliver to each dwelling unit no earlier than January first and no later than January sixteenth a notice inquiring as to whether a child under seven years of age resides therein. Such notice must be printed on a single form and in a manner approved by the department, the content of which shall be in English and Spanish at a minimum. If, subsequent to delivery of such notice, the owner does not have a written response from the occupant by February fifteenth of that year, and does not otherwise have actual knowledge as to whether a child under seven years of age resides therein, then the owner shall at reasonable times and upon reasonable notice inspect that occupant's dwelling unit to ascertain the residency of a child under seven years of age and, when necessary, conduct an investigation pursuant to subdivision a of this section.
f. The owner shall inform the occupant and tenant in writing of the results of an investigation undertaken pursuant to this section and shall provide a copy of any such report received or generated by an investigation. The owner shall retain a copy of each investigation report, and such report shall be made available to the department on request and to the owner's successor in title.
g. Any owner who violates the provisions of this section, or the rules promulgated hereunder, shall be guilty of a misdemeanor punishable by a fine of up to five hundred dollars or imprisonment for up to six months or both. In addition, any violation of this section shall subject the owner to a civil penalty of not more than one thousand five hundred dollars per violation.
§27-2056.5 Presumption.
a. In any dwelling erected prior to January 1, 1960, it shall be presumed that the paint or other similar surface-coating material in the interior of the dwelling or dwelling unit is lead-based paint. The presumption established by this section may be rebutted by the owner of the dwelling or dwelling unit by submitting to the department a sworn written statement supported by lead-based paint testing or sampling results, a sworn written statement by the person who performed the testing if performed by an employee or agent of the owner, and such other proof that the department may require. Testing performed to rebut the presumption may only be performed by a person who has been certified as an inspector or risk assessor in accordance with subparts L and Q of part 745 of title 40 of the code of federal regulations.
b. The owner of a dwelling or a dwelling unit may apply to the department to have such dwelling or dwelling unit exempted from the presumption contained in this section when substantial alterations have been made to such dwelling or dwelling unit and such alterations have resulted in the permanent removal of all lead-based paint in that dwelling or dwelling unit. The department shall by rule determine the requirements needed to qualify for such an exemption. Sections 27-2056.4, 27-2056.8 and 27-2056.9 of this article shall not apply to any dwelling or dwelling unit that has been granted an exemption by the department.
§27-2056.6 Violation in a Dwelling Unit. The existence of lead-based paint in any dwelling unit in a multiple dwelling where a child under seven years of age resides shall constitute a class C immediately hazardous violation if such paint is peeling or is on a deteriorated subsurface.
§27-2056.7 Violation in Common Areas of a Multiple Dwelling. The existence of lead-based paint in any portion of a multiple dwelling that is generally accessible to all occupants, including, but not limited to, a public hall, stair, lobby or window, shall constitute a class C immediately hazardous violation if such paint is peeling or is on a deteriorated subsurface.
§27-2056.8 Violation in a Dwelling Unit Upon Turnover or by Rule of the Department. a. Upon turnover of any dwelling unit, or on such earlier date as may be established by rule pursuant to subdivision b of this section in a dwelling unit in which a child under seven years of age resides, the owner of a multiple dwelling erected prior to January 1, 1960 shall have the duty to:
(1) eliminate all peeling paint and repair all deteriorated subsurfaces and underlying defects using work practices that will minimize and contain the generation of lead-contaminated dust;
(2) provide for the permanent removal or covering of all lead-based paint on all friction surfaces of windows and on the friction surfaces of doors and door frames;
(3) provide smooth and cleanable horizontal surfaces, including floors, window sills and window wells, so that dust can be removed by normal cleaning without special equipment;
(4) repaint all areas where work was performed pursuant to this section;
(5) prior to reoccupancy, perform specialized cleaning to remove lead-contaminated dust in all affected areas in accordance with procedures issued by the department of health; and
(6) any additional actions that the department of health by rule shall establish.
b. the commissioner of health in conjunction with the department shall establish a schedule for compliance with this section prior to turnover in dwelling units in a multiple dwelling in which a child under seven years of age resides. In establishing such schedule, the commissioner shall consider the age of a multiple dwelling and other factors relevant to the prevalence of lead-based paint hazards including, but not limited to, outstanding violations, emergency repair charges, tax arrears and mortgage debt. Such schedule shall also require compliance in all such dwelling units by July 1, 2007.
c. Any person who fails to comply with the provisions of subdivision a or b of this section in accordance with the rules of the department of health or the department shall be liable for a class C immediately hazardous violation.
§27-2056.9 Department Inspections. a. When entering a dwelling unit in a dwelling constructed prior to January 1, 1960 for the purpose of investigating the existence of any violation of this code, the department shall make diligent efforts to ascertain whether a child under the age of seven resides therein. Whenever a child under the age of seven resides in a dwelling unit, the department shall immediately inspect all painted surfaces in the dwelling unit and record in a report of such inspection whether the paint or other similar surface-coating material on each surface inspected is peeling or intact, and shall inspect the entire dwelling unit for evidence of any underlying defect and record in a report the existence or absence of such condition. In determining whether lead-based paint is present in a dwelling unit, the department may use the presumption set forth in section 27-2056.5 of this article. At the time of the inspection, the department shall provide the occupants of the dwelling unit with the pamphlet described in subdivision e of this section.
b. Notwithstanding the provisions of subdivision a of this section, when the intended purpose of the inspection is to investigate a complaint concerning a condition under article eight of subchapter two of this chapter, the department also shall conduct an inspection pursuant to subdivision a of this section either during the course of such inspection or no later than five business days thereafter when the department observes peeling paint in the dwelling unit.
c. In any dwelling unit in a multiple dwelling where a child under seven years of age resides, the department shall conduct an inspection pursuant to subdivision a of this section no later than five business days after the department's receipt of a complaint describing peeling paint, a deteriorated subsurface or an underlying defect in the dwelling unit. The department shall make diligent efforts to ascertain whether a child under the age of seven resides therein. When a complaint is made about lead-based paint, the department shall inquire as to the condition of the paint throughout the dwelling unit to determine whether an inspection pursuant to this subdivision is required. Where, upon conducting an inspection, the department determines the existence of a condition constituting a violation of this article, the department shall serve a notice of violation within five additional business days.
d. The department shall establish an inspection program to identify dwellings where children are at risk of lead poisoning from peeling paint or underlying defects in order that inspections may be conducted without the receipt of a complaint, and the department of health in conjunction with the department shall develop interim and permanent strategies to prevent exposure to lead-based paint and lead-contaminated dust in these dwellings. A sufficient number of the department's code enforcement personnel shall be dedicated to this inspection program.
e. The department of health shall develop a pamphlet explaining the hazards associated with lead-based paint and describing the procedures to be used when a violation of this article shall be corrected. The pamphlet shall be in English and Spanish at a minimum and shall include appropriate telephone numbers to obtain lead poisoning screening, diagnosis and treatment information and to report unsafe lead-based paint work practices, and shall in prominent type advise the occupants of the dwelling unit that they are not required to consent to a rent increase for work relating to the correction of a violation of this article.
§27-2056.10 Department Implementation and Enforcement.
a. The department of health in conjunction with the department shall provide appropriate training for lead-based paint inspection and supervisory personnel and insure that they are well trained. No department personnel shall conduct an inspection pursuant to this article unless that individual has received such training. At a minimum, such training shall (1) be the training required under regulations issued by the United States Environmental Protection Agency for the certification of inspectors and supervisors, (2) include background information pertaining to applicable state and local lead-based paint laws and guidance on identifying violations in a multiple dwelling, and (3) require that the individual has successfully demonstrated knowledge of the requirements of a certified inspector or certified supervisor, as the case may be, the requirements of this article, and the requirements of section 173.14 of the health code. The department shall provide for the continuing education of inspection and supervisory personnel.
b. The department of health in conjunction with the department shall promulgate a comprehensive written procedure to guide department personnel in implementing and enforcing this article. Where feasible, such procedures shall establish a uniform method for the department of health and the department, following the method implemented by the department of health, to describe violations and identify their location in a dwelling or dwelling unit. Such procedures shall include a methodology and a form to be used by department personnel when conducting an inspection to carry out and record a surface-by-surface investigation as to whether a painted surface is peeling or intact and whether an underlying defect is present or absent. A copy of such written procedure shall be made available to any person upon request at no cost.
c. The department of health in conjunction with the department shall promulgate rules for the implementation and enforcement of this article and to effect compliance with all applicable provisions of this article, rules promulgated thereunder, and all applicable city, state or federal laws, rules or regulations. Such rules shall include but not be limited to establishing:
(1) uniform specifications and procedures to govern testing, including a standardized format for reporting such testing results, whenever paint or a similar surface-coating material is tested for its lead content, whether by or on behalf of an owner, an agency of the city of New York, or any other person;
(2) procedures by which an owner shall comply with section 27-2056.4 of this article, including the form and content of the annual notice;
(3) procedures by which an owner shall submit rebuttal documentation to the department pursuant to 27-2056.5 of this article; and
(4) procedures by which an owner may apply to the department to postpone the date by which a violation shall be corrected pursuant to subdivision l of section 27-2115 of this code.
§27-2056.11 Work Practices. a. When lead-based paint hazards or violations are removed or when lead-based paint or paint of unknown lead content is disturbed during the course of a repair, renovation, or demolition, the owner, or the department when the owner may fail to do so, shall protect the safety of all occupants in a dwelling or dwelling unit until work is properly completed and clean-up is properly performed. If the work cannot be performed without risk to the occupants of the dwelling, the owner shall provide temporary relocation for the occupants while the work is being performed.
b. The work practices set forth in §173.14 of the health code shall apply whenever lead-based paint hazards or violations are removed or whenever lead-based paint or paint of unknown lead content is disturbed during the course of a repair, renovation, or demolition. The department of health shall promulgate additional rules governing temporary relocation when work cannot be performed without risk to the occupants of the dwelling. The department of health may promulgate additional rules exempting from §173.14 certain low risk, small repairs, involving no more than two square feet of loose lead-based paint per room or the removal of movable components such as doors and cabinet doors by the removal of hinges, provided that such rules include,
(1) occupant protection measures;
(2) lead-contaminated dust clearance tests; and
(3) training requirements.
c. When the department shall issue an order to correct or notice of violation, or upon the request of an occupant of a dwelling where lead-based paint hazards are being removed or where lead-based paint or paint of unknown lead content is being disturbed during the course of a repair, renovation, or demolition, the department of health shall conduct periodic worksite investigations of sufficient frequency and scope during the course of work and final clean-up to ensure that children and adults are not exposed to lead-based paint or lead-contaminated dust from the worksite and that the work and final clean-up are conducted in full compliance with all applicable rules.
d. Whenever lead-based paint hazards or violations are removed or whenever lead-based paint or paint of unknown lead content is disturbed during the course of a repair, renovation, or demolition, such activities shall comply with the federal standards for the protection of the occupational safety and health of those persons engaged in such activities, in section 1926.62 of title 29 of the code of federal regulations, or any successorregulation.
§27-2056.12 Reporting. a. Within three months after the close of the first full fiscal year after which this article takes effect and for every fiscal year thereafter, the commissioner shall report to the council on the department's implementation of this article during the preceding period. Such report shall include, at a minimum, (1) a detailed statement of revenue and expenditures and (2) a statement of the department's program, supported by a statistical section with geographic indexing designed to provide a detailed explanation of the department's enforcement, including but not limited to the following:
(a) a statistical profile of dwellings in which violations are placed, indicating the ages of the multiple dwellings and other factors relevant to the prevalence of lead-based paint hazards, which may include the prior lead poisoning of a child in the dwelling, outstanding violations, emergency repair charges, tax arrears and mortgage debt;
(b) the number of dwelling units inspected, the number of such units where a child under seven years of age resided, and the number of department inspectors assigned to conduct such inspections;
(c) the number of dwelling units in which the occupant complained of peeling paint, a deteriorated subsurface or an underlying defect and the number of pre-1960 dwelling units in which the existence of such conditions were confirmed by the department;
(d) the number of dwelling units where a child under seven years of age resides in which a violation was placed pursuant to this article, whether the violation was placed in response to an occupant's complaint or otherwise, and the number of dwelling units in which violations for underlying defects were placed in addition to violations for lead-based paint;
(e) the number of violations issued pursuant to this article that were corrected by the owner and the number that were corrected by the department;
(f) an evaluation of the department's capability to timely inspect, serve a notice of violation, and enforce the correction of violations; and
(g) an evaluation of the department's implementation of a program of inspection pursuant to subdivision d of section 27-2056.9 of this article.
b. The department of health shall make recommendations to amend this article if any of the following conditions occur:
(1) in fiscal year 2003, the rate of children in the city of New York who obtain blood-lead testing in compliance with applicable law is less than 75 percent;
(2) in fiscal year 2003, the number of children in the city of New York whose blood-lead level is equal to or exceeds 20 micrograms per deciliter is greater than 400;
(3) in fiscal year 2005, the rate of children in the city of New York who obtain blood-lead testing in compliance with applicable law is less than 90 percent; or
(4) in fiscal year 2005, the number of children in the city of New York whose blood-lead level is equal to or exceeds 20 micrograms per deciliter is greater than 250.
Such recommendations shall be submitted to the council within six months after the close of the fiscal year in which the condition occurs.c. (1) The department shall maintain a central register of all department orders to correct a violation under this article. Such register shall indicate, if applicable, the date of the complaint, address of the premises, the date of each inspection and reinspection, all action taken by the department, and any additional information that the department of health, in conjunction with the department, deems necessary for the department of health to make recommendations to the council pursuant to subdivision b of this section.
(2) All supporting documents relating to the administration and enforcement by the department of an order to correct, including but not limited to notices, statements, inspection reports, lead-based paint and lead-contaminated dust testing reports, letters, and certifications of correction, shall be maintained in an individual file by dwelling unit, cross-referenced to the register, and maintained at the same location as the register.
(3) Such register and cross-referenced file shall be open for inspection by the public and the information therein, to the maximum extent feasible, shall be made available in a computer readable format of general usage, a copy of which shall be available to any person without charge.
§27-2056.13 Transmittal of Violations to the Department of Health. The department shall transmit to the department of health each week a list of violations issued pursuant to this article, by dwelling unit, and including the name of the tenant, if known, for the purpose of referral by the department of health for follow-up screening, diagnosis, and treatment of the children and pregnant women who reside therein.
§27-2056.14 Inspections by Department of Health and Removal of Health Code Violations by Department of Housing Preservation and Development. Whenever a report has been made of a person under 18 years of age or a pregnant woman with an elevated blood-lead level of 15 micrograms per deciliter or higher residing in any dwelling, the department of health shall make an inspection to determine if the condition is at a level which constitutes a danger to life, health or safety. If the owner of thedwelling or relevant dwelling unit within such dwelling fails to comply with an order of the department of health to correct a violation placed by the department of health, the department of health shall certify such conditions to the department of housing preservation and development. The certification procedure shall be completed within sixteen days from receipt of such report of elevated blood-lead level or inspection, whichever occurs first. The conditions so certified shall be corrected within ten days of certification to the department.
§27-2056.15 Waiver of Benefit Void. No owner may seek to have an occupant of a dwelling unit waive the benefit or protection of any provision of this article. Any agreement by the occupant of a dwelling unit purporting to waive the benefit or protection of any provision of this article is void. Any owner who violates this section, or the rules promulgated hereunder, shall be guilty of a misdemeanor punishable by a fine of up to five hundred dollars or imprisonment for up to six months or both. In addition, any owner who violates this section shall be liable for a civil penalty of not more than five hundred dollars per violation.
§27-2056.16 Compliance by Department. An action or proceeding may be brought against the department or the department of health to compel promulgation of the rules and the establishment of procedures required under this article or to compel compliance by such departments with this article and the rules and procedures promulgated pursuant thereto. Unless specifically stated herein to the contrary, the responsibilities and duties under this article are mandatory.
§5. Section 27-2115 of the administrative code of the city of New York is amended by adding a new subdivision l to read as follows:
(l)(1) Notwithstanding any other provision of law, when the department serves a notice of violation to correct a condition that constitutes a violation of article 14 of subchapter 2 of this chapter, the notice of violation shall specify the date by which the violation shall be corrected, which shall be twenty-one days after service of the notice of violation, and the procedure by which the owner, for good cause shown pursuant to this subdivision, may request a postponement. The notice of violation shall be served by personal delivery to a person in charge of the premises or to the person last registered with the department as the owner or agent, or, by registered or certified mail, return receipt requested, to the person in charge of the premises or to the person last registered with the department as the owner or agent; provided that where a managing agent has registered with the department, such notice of violation shall be served on the managing agent. Service of the notice of violation shall be deemed completed three days from the date of mailing. A copy of such notice of violation shall be sent simultaneously by regular mail to the occupant of the dwelling unit that is the subject of such notice of violation. The department may postpone the date by which a violation shall be corrected upon a showing, made within the time set for correction in the notice, that prompt action to correct the violation has been taken but that full correction cannot be completed within the time provided because of serious technical difficulties, inability to obtain necessary materials, funds or labor, inability to gain access to the dwelling unit wherein the violation exists, or such other portionof the building as may be necessary to make the required repair. Such postponement shall not exceed twenty-four days from the date of correction set forth in the notice of violation. The department may condition such postponement upon the applicant's written agreement to correct all violations placed against the premises by the department or other appropriate governmental agency and to repay within an appropriate period of time, all sums owing to the department for repairs made to said premises. The department may require such other conditions as are deemed necessary to insure correction of the violations within the time set by the postponement. The department shall provide to the owner ,the occupant and the tenant a written statement signed and dated by the person making such decision setting forth the reasons for the postponement of the date by which a violation shall be corrected or the reason for the denial of such application for postponement. Said written statement shall be part of the record of the department.
(2) Notwithstanding any other provision of law, the notice of violation shall direct that the correction of each violation cited therein shall be certified to the department. Such certification shall be made in writing, under oath by the registered owner, a registered officer or director of a corporate owner or by the registered managing agent, supported by copies of surface lead-contaminated dust clearance tests whenever such tests are required by applicable law, rule or regulation. Such certification shall be delivered to the department and acknowledgment of receipt therefor obtained or shall be mailed to the department by certified or registered mail, return receipt requested, no later than three days after the date set for correction, and shall include the date when each violation was corrected. Such certification of correction shall be supported by a sworn statement by the person who performed the work if performed by an employee or agent of the owner. A copy of such certification shall then be mailed not more than twelve calendar days from the date of receipt of notification to the tenant by the department.
(3) Whenever the department shall issue a notice of violation to correct a condition that constitutes a violation of article 14 of subchapter 2 of this chapter, the department shall within ten days after the date set for the correction of such violation conduct a final inspection to verify that the violation has been corrected. Where, upon conducting an inspection, the department determines that a violation has not been corrected, the department within fourteen additional days shall correct such violation.
(4) Notwithstanding any other provision of law, except when the department removes a violation from its records pursuant to section 27-2056.5 of this code, the department shall not remove a violation from its records nor shall it be deemed that such violation has been corrected unless the records of the department contain written verification that the department has conducted a final inspection of the premises and that such inspection verifies that the violation has been corrected, and copies of surface lead-contaminated dust clearance tests whenever such tests are required by applicable law, rule or regulation. A copy of the report of the final inspection of a dwelling unit and the status of the violation shall be mailed to the occupants and the owner.
(5) Notwithstanding any other provision of law, a person making a false certification of correction of a violation issued pursuant to article 14 of subchapter 2 of this chapter, in addition to any other civil penalty, shall be subject to a civil penalty of not less than one thousand dollars nor more than three thousand dollars for each false certification made, recoverable by the department in a civil action brought in a court of competent jurisdiction, and shall, whenever appropriate, be punished under the provisions of article three of subchapter five of this chapter.
(6) Notwithstanding any other provision of law, a person who violates article 14 of subchapter 2 of this chapter shall be subject to a civil penalty of two hundred fifty dollars per day for each violation from the date set for correction in the notice of violation until the date the violation is corrected and certified to the department, and in addition to any civil penalty shall, whenever appropriate, be punished under the provisions of article three of subchapter five of this code. There shall be a presumption that the condition constituting a violation continues after the service of the notice of violation. The owner shall be responsible for the correction of all violations placed pursuant to article 14 of subchapter 2 of this chapter, but in an action or proceeding for civil penalties pursuant to this subdivision may in defense or mitigation of such liability for civil penalties show:
(i) That the condition which constitutes the violation did not exist at the time the violation was placed; or
(ii) That he or she began to correct the condition which constitutes the violation promptly upon discovering it but that full correction could not be completed expeditiously because of serious technical difficulties, inability to obtain necessary materials, funds or labor, or inability to gain access to the dwelling unit wherein the violation exists, or such other portion of the building as might be necessary to make the repair, provided that a postponement was granted pursuant to this subdivision; or
(iii) That he or she was unable to obtain a permit or license necessary to correct the violation, provided that diligent and prompt application was made therefor; or
(iv) That the violation giving rise to the action was caused by the act of negligence, neglect or abuse of another not in the employ or subject to the direction of the owner, except that the owner shall be precluded from showing in defense or mitigation of such owner's liability for civil penalties evidence of any acts occurring, undertaken, or performed by any predecessor in title prior to the owner taking control of the premises.
Where the aforesaid allegations are made by way of mitigation of penalties, the owner shall show, by competent proof, pertinent financial data and efforts made to obtain necessary materials, funds or labor or to gain access, or to obtain a permit or license and such other evidence as the court may require.
If the court finds that sufficient mitigating circumstances exist, it may remit all or part of any penalties arising from the violations, but may condition such remission upon a correction of the violation within a time period fixed by the court.
§6. Section 27-2126 of the administrative code of the city of New York is hereby REPEALED.
§7. Title 17 of the administrative code of the city of New York is amended by adding a new section 17-179 to read as follows:
§17-179 Department Screening, Diagnosis, and Treatment. The department shall conduct follow-up screening, diagnosis and treatment for the children and pregnant women who reside in any multiple dwelling or dwelling unit referred pursuant to article 14 of subchapter 2 of chapter 2 of title 27 of the administrative code.
§8. Title 17 of the administrative code of the city of New York is amended by adding a new section 17-180 to read as follows:
§17-180 Training of Department Personnel. The department, in conjunction with the department of housing preservation and development, shall provide appropriate training for lead-based paint inspection and supervisory personnel and assure that they are properly trained. No department personnel shall conduct an inspection pursuant to this article unless that individual has received such training. At a minimum, such training shall (1) be equivalent to the training required under regulations issued by the United States environmental protection agency for the certification of lead-based paint inspectors and supervisors, (2) include background information pertaining to applicable state and local lead-based paint laws and guidance on identifying violations in a multiple dwelling, and (3) require that the individual has successfully demonstrated knowledge of the responsibilities of a certified inspector or certified supervisor, as the case may be, the requirements of article 14 of subchapter 2 of chapter 2 of title 27 of this code, and the requirements of section 173.13 and section 173.14 of the health code. The department shall provide for the continuing education of inspection and supervisory personnel.
§9. Title 17 of the administrative code of the city of New York is amended by adding a new section 17-181 to read as follows:
§17-181 Lead-based paint; dry scraping and dry sanding prohibited. The dry scraping or dry sanding of lead-based paint or paint of unknown lead content in any dwelling, day care center or school is hereby declared to constitute a public nuisance and a condition dangerous to life and health. For the purpose of this section, dry scraping and dry sanding shall mean the removal of paint or similar surface-coating material by scraping or sanding without using water misting to reduce dust levels or other method approved by the department. The department shall promulgate such additional rules as necessary for the enforcement of this section.
§10. Subdivision 1 of subsection a of section § 11-243 of the administrative code of the city of New York is amended to read as follows:
1. "Alteration" and "improvement": a physical change in an existing dwelling other than painting, ordinary repairs, normal replacement of maintenance items, [except that painting or repairs designated to eliminate the lead-based paint poisoning hazard shall be eligible for tax exemption and tax abatement under this section and] provided, however, that ordinary repairs and normal replacement of maintenance items, as defined by [regulations] rules adopted by the department of housing preservation and development pursuant to subdivision m of this section, shall be eligible for tax exemption and tax abatement under this section provided that repairs and maintenance items:
(1) were started and completed within a twelve-month period,
(2) were made to any common area of the dwelling premises concurrently with a major capital improvement thereto, as defined by [regulations] rules adopted by the department of housing preservation and development pursuant to subdivision m of this section, and
(3) require the issuance of a permit for at least one item thereof by any city agency, and
(4) the amount of money expended thereon shall not exceed two times the amount expended on the major capital improvement performed concurrently therewith.
"Alteration" and "improvement" shall also mean an "abatement" of lead-based paint hazards, as defined in part 745 of title 40 of the code of federal regulations or any successor regulations, and shall include an "inspection" and "risk assessment" for lead-based paint hazards, as defined in part 745 of title 40 of the code of federal regulations or any successor regulations, in a dwelling unit occupied by a child under the age of seven, regardless of whether a child is or has been lead poisoned in such dwelling unit.
§11. Title 17 of the administrative code of the city of New York is amended by adding a new chapter 8 to read as follows:
Chapter 8
Lead-Based Paint in School and Day Care Facilities
Subchapter 1
Definitions
§17-800 Definitions
Subchapter 2
Abatement of Lead-Based Paint Hazards in School Facilities
§17-810 Declaration of Legislative Findings and Intent.
§17-811 Presumption.
§17-812 Worksite Plans and Supervision.
§17-813 Abatement.
§17-814 Department Rules.
§17-815 Semi-Annual Survey for Lead-Based Paint Hazards.
§17-816 Risk Assessment and Remediation for Soil-lead Hazards.
§17-817 Reporting.
§17-818 Compliance by Department.
Subchapter 3
Abatement of Lead-Based Paint Hazards in Day Care Facilities
§17-820 Presumption.
§17-821 Abatement.
§17-822 Department Rules.
§17-823 Compliance by Department.
§17-824 Semi-Annual Inspection.
§17-825 Risk Assessment and Remediation for Soil-lead Hazards
Subchapter 1
Definitions
§17-800 Definitions. For the purpose of this chapter the following terms shall have the following meanings:
1. "Abate" or "abatement" shall mean to remove or permanently contain or encapsulate lead-based paint in compliance with all applicable provisions of this chapter, rules promulgated thereunder, and all applicable city, state, or federal laws, rules or regulations.
2. "Accessible surface" shall mean any surface that because of its height or location is readily accessible to children under seven years of age and forms an edge or protrudes from any flat surface, including but not limited to, doors, door frames, window sills, moldings, railings, stairs, window frames, trim, baseboards, and cabinets.
3 "Board of education" shall mean the board of education of the city of New York.
4. "Day care facility" shall mean any facility used to provide day care service or family day care service.
5. "Day care service" shall mean any service which, during all or part of the day, regularly gives care to seven or more children under the age of seven, not all of common parentage, which operates more than five hours per week for more than one month a year. Day care service shall not mean a kindergarten or higher grade in a facility operated by the board of education.
6. "Family day care service" shall mean the regular daytime care of at least three but not more than six children under the age of seven in the home of an unrelated provider for more than five hours per week. An unrelated provider means any person who is not the child's parent, stepparent, grandparent, brother, sister, uncle, aunt, first cousin, stepbrother, stepsister, niece, nephew or guardian appointed by a court who provides family day care with or without compensation.
7. "Friction Surface" shall mean any surface that touches or is in contact with another surface, such that the two surfaces are capable of relative motion, thereby encountering resistance. Friction surfaces shall include but not be limited to window frames and jambs, doors, and hinges.
8. "Impact Surface" shall mean any surface is subject to damage by repeated sudden force such as certain parts of door frames, moldings, or baseboards.
9. "Lead-based paint" shall mean paint or other similar surface-coating material containing 0.7 milligrams of lead per square centimeter (mg/cm²) or greater, as determined by laboratory analysis, or by an x-ray fluorescence analyzer. If an x-ray fluorescence analyzer is used, readings shall be corrected for substrate bias when necessary as specified by the performance characteristic sheets released by the United States environmental protection agency and the United States department of housing and urban developmentfor the specific x-ray fluorescence analyzer used. XRF X-ray fluorescence readings shall be classified as positive, negative or inconclusive in accordance with the United States department of housing and urban development "Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing" (June 1995, revised 1997) and the PCS released by the United States environmental protection agency and the United States department of housing and urban developmentfor the specific x-ray fluorescence analyzer used. X-ray fluorescence readings that fall within the inconclusive zone, as determined by the performance characteristic sheets, shall be confirmed by laboratory analysis of paint chips, results shall be reported in mg/cm² and the measure of such laboratory analysis shall be definitive. If laboratory analysis is used to determine lead content, results shall be reported in mg/cm². Where the surface area of a paint chip sample cannot be accurately measured or if an accurately measured paint chip sample cannot be removed, laboratory analysis may be reported in percent by weight. In such case, lead-based paint shall mean any paint or other similar surface-coating material containing more than 0.5% of metallic lead, based on the non-volatile content of the paint or other similar surface-coating material.
10. "Lead-based paint hazard" shall mean any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil or lead-based paint that is peeling or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects.
11. "Lead-based paint hazard reduction plan" shall mean a plan that will:
(i) furnish information relevant for evaluating the scope, complexity and duration of a lead-based paint project;
(ii) minimize to the maximum extent feasible the current and future exposure of children and adults to lead-based paint and dust contaminated by lead-based paint emanating from the area of the lead-based paint project; and
(iii) effect compliance with all applicable provisions of this chapter, rules promulgated thereunder, and all other applicable city, state or federal laws, rules or regulations.
12. "Lead-based paint project" shall mean any form of work performed in connection with the erection, enlargement, repair, remodeling or repainting of a school facility that will disturb lead-based paint.
13. "Lead-contaminated dust" shall mean dust containing lead at 40 micrograms per square foot (g/ft²) on a floor, 250 g/ft² on window sills, and 400 g/ft² on window wells , or above, or such more stringent standards as may be adopted by the New York City board of health.
14. "Operator of such day care facility" shall mean any person who provides day care service and the owner of the premises where such day care facility is located. "Person" shall mean an individual, corporation, partnership, association or other for-profit or not-for-profit entity.
15. "Peeling" shall mean that the paint or other surface-coating material is curling, cracking, scaling, flaking, blistering, chipping, chalking, or loose in any manner, such that a space or pocket of air is behind a portion thereof or such that the paint is not completely adhered to the underlying surface, or that such paint or other surface-coating material is on an unstable or unsound subsurface including, but not limited to, rotted or decayed wood or wood or plaster that has been subject to moisture.
16. "Play area" shall mean an area of frequent soil contact by children of less than 7 years of age as indicated by, but not limited to, such factors as the presence of play equipment such as sandboxes, swing sets, and sliding boards, observations of play patterns, or information provided by parents, staff, care givers, or property owners.
17. "School facility" shall mean any structure operated by or on behalf of the board of education for use as a classroom for the instruction of students or for the administration of educational or research programs, including any playground or playground equipment, gymnasium, cafeteria or other facility designed for athletic or recreational activities or for an academic course in physical education, whether or not the board of education or the city of New York holds title to such structure.
18. "Soil-lead hazard" shall mean bare soil that contains total lead equal to or exceeding 400 parts per million (g/g) in a play area or average of 1,200 parts per millions of bare soil in the rest of the yard based on soil samples, or such more stringent standards as may be adopted by the New York City board of health.
19. "Special education" shall mean the following board of education instructional programs or the equivalent: modified instructional service IV, modified instructional service V, specialized instructional environment I, specialized instructional environment III, specialized instructional environment V, specialized instructional environment VI, and specialized instructional environment VII.
Subchapter 2
Lead-Based Paint Hazards In School Facilities
§17-810. Declaration of legislative findings and intent. Childhood lead poisoning is the number one environmental health hazard facing children today. Environmental exposure to even low levels of lead increases children's risk of developing permanent reading and learning disabilities, reduced concentration and attention span, hyperactivity and other behavior problems, impaired hearing and lower intelligence quotients. These problems may persist and adversely affect children's ability to learn and succeed in life.
Childhood lead poisoning is caused by environmental exposure to lead. The most significant sources of environmental lead are lead-based paint and dust and soil contaminated by lead. In school facilities, the danger posed can be controlled by abating lead-based paint hazards and imposing strict requirements to minimize exposure when lead-based paint is disturbed during maintenance work and renovations.
The Council finds that the board of education of the city of New York currently does not have a formal comprehensive strategy for preventing childhood lead poisoning and controlling exposure to lead-based paint hazards in the public schools. It is the purpose of this local law to identify the conditions in the public schools where the risk of lead poisoning is the greatest and to set forth what is reasonable and necessary to be performed by the board of education and the department of health to remove that risk to the maximum extent possible.
The Council furthermore declares that the failure to control lead-based paint hazards pursuant to this local law is a public nuisance and a condition dangerous to the life and health of children who are exposed in the public schools to lead-based paint and dust contaminated by lead-based paint.
§17-811 Presumption. a. All paint or similar surface-coating material on the interior and exterior of any school facility erected before January 1, 1985, shall be presumed to be lead-based paint.
b. The board of education may rebut such presumption of lead-based paint by submitting to the department a sworn written statement, supported by lead-based paint testing or sampling results in a form approved by the department, a sworn written statement by the person who performed the testing, and such other proof that the department may require; notwithstanding, a member of the public shall be provided access to a school to conduct lead-based paint testing or sampling.
§17-812 Worksite Plans and Supervision. a. When the expected cost of a lead-based paint project is two thousand five hundred dollars or more, the board of education shall not commence such work before implementing a lead-based paint hazard reduction plan appropriate to a worksite, and all work shall be performed pursuant to such plan. Such plan shall be available for inspection by the department and by the public.
b. When the expected cost of a lead-based paint project is less than two thousand five hundred dollars, the board of education may commence such work without implementing a lead-based paint hazard reduction plan; however, such work shall be completed in a manner required by the department and shall ensure that children and adults are not exposed to lead-based paint or dust contaminated by lead-based paint through its release within or from a worksite.
c. When a lead-based paint project is commenced pursuant to subdivision a of this section:
(1) all work shall be properly supervised and inspected by an individual who has received certification as a "certified supervisor" pursuant to part 745 of title 40 of the code of federal regulations; and
(2) the department shall conduct periodic inspections of sufficient frequency and scope during the course of work and final clean-up to ensure that children and adults are not exposed to lead-based paint or dust contaminated by lead-based paint through its release from a worksite and that there is compliance with all applicable rules of the department.
d. Whenever lead-based paint hazards are removed or violations corrected, or whenever lead-based paint or paint of unknown lead content is disturbed during the course of a repair, renovation, or demolition, such activities shall comply with the federal standards for the protection of the occupational safety and health of those persons engaged in such activities, in section 1926.62 of title 29 of the code of federal regulations, or any successor regulation.
§17-813 Abatement. a. There shall be no peeling lead-based paint in any portion of any school facility where children in special education, pre-kindergarten, kindergarten, or first grade regularly spend time.
b. Peeling lead-based paint and peeling paint of unknown lead content shall be immediately abated in a manner required by the department.
c. Effective September 1, 2003, any surface covered with lead-based paint or paint of unknown lead content shall be abated, including interior window sills and window wells accessible to children, other window friction and impact surfaces, and other surfaces in special education, pre-kindergarten, kindergarten and first grade classes determined by the department. For purposes of this section "window well" shall mean the horizontal structure of the window frame that receives the window sash or the trough in which the lower part of the window fits or rests.
d. Any equipment that is painted shall be painted with lead-free paint.
e. Whenever a condition prohibited by this section is found to exist, the department shall immediately serve an order on the board of education to abate the condition. In the event such order is not complied with within thirty days of service thereof, the department shall execute such order within thirty days.
f. Nothing herein shall limit the department from promulgating rules requiring the abatement of any lead-based paint or paint of unknown lead content on any interior or exterior surface whether peeling or not.
g. The board of education shall take all feasible and prudent actions to abate lead-based paint when carrying out a lead-based paint project.
§17-814 Department rules. The department shall promulgate rules in accordance with the provisions of this chapter and such other rules and regulations as may be necessary for the purpose of implementing and carrying out the provisions of this chapter. Such rules shall include the following provisions:
(1) the requirement of appropriate written notification to all parents and school employees of the affected school prior to the commencement of work in the school;
(2) the board of education and its contractors shall comply with safety and clean-up procedures to govern a lead-based paint project commenced, as the case may be, pursuant to subdivision a or b of section 17-812 of this chapter. Such procedures shall ensure that children and adults are not exposed to lead-based paint or dust contaminated by lead-based paint through its release within or from a worksite;
(3) exposure to lead-based paint shall be minimized until a hazard is repaired. Children shall not be present and shall not have access to any room undergoing a lead-based paint project or an abatement of a lead-based paint hazard until completion of a final clean-up and lead-contaminated dust clearance testing has been conducted pursuant to department regulations. Whenever possible, work shall be done during non-class hours, such as evenings, weekends and vacation periods;
(4) the board of education shall establish procedures for continuing maintenance, including regular clean-up of accumulated dust;
(5) the board of education shall develop a school-based and central reporting system for recording all complaints about lead-based paint hazards and the response to such complaints, which shall be made available for public inspection during regular business hours; and
(6) whenever the board of education conducts lead-based paint testing at a school facility, the results of such testing shall be placed on file in the office of the principal of such school and shall be made available for public inspection.
§17-815 Semi-annual Survey for Lead-based Paint Hazards. The board of education shall conduct a semi-annual survey in every school facility to determine the existence of peeling lead-based paint in areas where children in special education, pre-kindergarten, kindergarten, or first grade regularly spend time and shall provide a copy of the survey results to the department.
§17-816 Risk Assessment and Remediation for Soil-lead Hazards. No later than two years after the effective date of this section, the board of education shall conduct a risk assessment for soil-lead hazards at every school facility, using soil sampling and documented methodologies that incorporate adequate quality control procedures, such as those set forth in and incorporated by reference within section 745.227 of title 40 of the code of federal regulations or any successor regulation. A risk assessment for soil-lead hazards shall thereafter be conducted whenever activities involving the removal or disturbance of lead-based paint have been conducted in such proximity to a yard or play area appurtenant to a school and in such manner as to have possibly resulted in the creation of a soil-lead hazard. Soil-lead hazards determined to be present as a result of such risk assessment shall be promptly remediated by either removal of the lead-contaminated soil or permanent covering using the work practices set forth in section 745.227 of title 40 of the code of federal regulations or any successor regulation.
§17-817 Reporting. Not later than fifteen months after the effective date of this local law, and every year thereafter, the board of education shall submit a report to the mayor and the council concerning the administration and enforcement of this subchapter.
§17-818 Compliance by Department. An action or proceeding may be brought against the department to compel promulgation of the rules required under this subchapter, and to compel compliance by the department or the board of education with this subchapter and the rules promulgated pursuant thereto. Unless specifically stated herein to the contrary, the department's responsibilities and duties under this subchapter are mandatory.
Subchapter 3
Abatement of Lead-Based Paint Hazards in Day Care Facilities
§17-820 Presumption. a. All paint or similar surface-coating material on the interior and exterior of any day care facility in a structure erected prior to January 1, 1978, shall be presumed to be lead-based paint.
b. An operator or owner of such day care facility may rebut such presumption of lead-based paint by submitting to the department a sworn written statement, supported by lead-based paint testing or sampling results in a form approved by the department, a sworn written statement by the person who performed the testing, and such other proof that the department may require.
§17-821 Abatement. a. There shall be no peeling lead-based paint in any portion of any day care facility.
b. Peeling lead-based paint and peeling paint of unknown lead content shall be immediately abated in a manner authorized by the department.
c. Effective September 1, 2003, interior and exterior surfaces of windows, surfaces of radiators, radiator coverings, pipes, and other surfaces in a day care facility as may be determined by the department, containing or covered with lead-based paint and paint of unknown lead content shall be abated.
d. Any equipment that is painted shall be painted with lead-free paint.
e. Whenever a condition prohibited by this section is found to exist, the department shall immediately serve an order on the operator or owner of such day care facility to abate the condition. In the event such order is not complied with within thirty days of service thereof, the department shall immediately request an agency of the city of New York to execute such order pursuant to the provisions of section 17-147 of this code. The agency shall execute the order within thirty days of the department's request. The city of New York shall be entitled to enforce its rights for reimbursement of expenses incurred thereby, including as credits toward lease payments.
f. When lead-based paint is abated pursuant to this section:
(1) all work shall be properly supervised and inspected by an individual who has received certification as a "certified supervisor" pursuant to part 745 of title 40 of the code of federal regulations;
(2) all work shall comply with the federal standards for the protection of the occupational safety and health of those persons engaged in such activities, in section 1926.62 of title 29 of the code of federal regulations, or any successor regulation; and
(3) the department shall conduct periodic inspections of sufficient frequency and scope during the course of work and final clean-up to ensure that children and adults are not exposed to lead-based paint or dust contaminated by lead-based paint through its release from a worksite and that there is compliance with department regulations.
g. Nothing herein shall limit the department from issuing regulations requiring the abatement of any lead-based paint or paint of unknown lead content on any interior or exterior surface whether peeling or not.
§17-822 Department rules. The department shall promulgate rules in accordance with the provisions contained in this chapter and such other rules and as may be necessary for the purpose of implementing the provisions of this chapter. Such rules shall include the provision that:
(1) the operator or owner of such day care facility comply with safety and clean-up procedures, which shall ensure that children and adults are not exposed to lead-based paint or dust contaminated by lead-based paint through its release within or from a worksite; and
(2) children shall not be present and shall not have access to any room undergoing a lead-based paint abatement until completion of a final clean-up.
§17-823 Compliance by department. An action or proceeding may be brought against the department to compel promulgation of the rules required under this subchapter and to compel compliance by the department with this subchapter and the rules promulgated pursuant thereto. Unless specifically stated herein to the contrary, the department's responsibilities and duties under this subchapter are mandatory.
§17-824 Semi-annual Survey. The operator of a day care facility shall conduct a survey of such facility semi-annually, and more often if necessary, to determine the physical condition of surface-coating material throughout each such facility and shall provide a copy of the survey results to the department.
§17-825 Risk Assessment and Remediation for Soil-lead Hazards. No later than two years after the effective date of this section, the owner or operator of a day care facility shall conduct a risk assessment for soil-lead hazards, using soil sampling and documented methodologies that incorporate adequate quality control procedures, such as those set forth in and incorporated by reference within section 745.227 of title 40 of the code of federal s or any successor regulation. A risk assessment for soil-lead hazards shall thereafter be conducted whenever activities involving the removal or disturbing of lead paint have been conducted in such proximity to a yard or play area appurtenant to a day care facility and in such manner as to have possibly resulted in the creation of a soil-lead hazard. Soil-lead hazards determined to be present as a result of such risk assessment shall be promptly remediated by either removal of the lead-contaminated soil or permanent covering using the work practices set forth in section 745.227 of title 40 of the code of federal regulations or any successor regulation.
§12. Title 17 of the administrative code of the city of New York is amended by adding a new section 17-182 to read as follows:
§17-182 Removal of lead-based paint from playground equipment. a. Declaration of legislative findings and intent. Childhood lead poisoning, the number one environmental health hazard facing children today, is caused by environmental exposure to lead. The most significant sources of environmental lead are lead-based paint and dust and soil contaminated by lead-based paint. Because lead-based paint was frequently utilized in the past to protect equipment exposed to the elements from corrosion, the paint on outdoor playground equipment is likely to have a much higher lead content than that found on interior building surfaces.
Investigations have disclosed high levels of lead in the soil of playgrounds as a result of the release of lead-based paint chips and dust from such playground equipment. Small children may ingest lead by getting paint chips or dust on their hands and then putting their hands in their mouths, may mouth equipment or otherwise may inhale lead-contaminated dust.
The United States consumer product safety commission has concluded that playground equipment with chipping and peeling lead-based paint is hazardous to children age seven years and younger. In coming to that conclusion, the United States consumer product safety commission tested paint from 26 playgrounds in 13 cities, and found that 16 playgrounds in 11 cities had levels of lead in the paint on playground equipment high enough to be recognized as a federal priority for lead hazard control measures. In addition, while the United States consumer product safety commission concluded that playground equipment with intact lead-based paint is not a hazard, it noted that such paint will deteriorate from exposure to sunlight, heat, moisture and normal wear and tear to form chips and dust that would present a hazard.
In addition to the United States consumer product safety commission's own findings, the United States consumer product safety commission reported that paint on equipment in 223 playgrounds in 19 additional cities was tested for lead by state and local authorities or television stations doing news stories on lead hazards. Of those playgrounds, 125 of them in 11 cities were reported to have lead-based paint ranging from 0.09 percent to 29 percent lead by weight. In February 1978 the United States consumer product safety commission banned the sale of public playground equipment with paint containing lead in excess of 0.06 percent by weight because it poses a risk of lead poisoning in children.
The council therefore declares that the failure to control lead-based paint hazards pursuant to this local law is a public nuisance and a condition dangerous to the life and health of children who are exposed on playgrounds to lead-based paint and soil contaminated by lead-based paint.
(b) For the purpose of this section, the following terms shall have the following meanings:
(1) "Lead-based paint" shall mean any paint or other similar surface-coating material containing lead as defined in subdivision b of section 173.13 of the health code.
(2) "Public playground equipment" shall mean any device, structure, or implement, fixed or portable, not including buildings, used or intended to be used by children under the age of seven for recreational or athletic purposes, such as, but not limited to, swings, slides, sandboxes, see-saws, climbing bars, wading pools or obstacle courses located on any premises or grounds under the control of, or operated by or on behalf of, the board of education, the department of parks and recreation, or any private or public school or day care facility.
c. Effective September 1, 2008, all public playground equipment with lead-based paint and paint of unknown lead content shall be replaced with playground equipment free of lead-based paint. All paint or similar surface-coating material on any public playground equipment manufactured before March 1, 1978 shall be presumed to be lead-based paint.
d. There shall be no peeling or chipping lead-based paint on any portion of any public playground equipment or fencing within or enclosing a public playground. Peeling lead-based paint and peeling paint of unknown lead content on public playground equipment shall be immediately abated in a manner required by the department. Whenever a condition prohibited by this section is found to exist, the department shall immediately serve an order on the owner and operator of such public playground to abate the condition. Nothing herein shall limit the department from issuing an order in any individual case requiring the abatement of any lead-based paint or paint of unknown lead content on any public playground equipment, whether peeling or not.
e. The department shall promulgate such rules as may be necessary to implement the provisions of this section. Such rules shall include the provision that (1) owners or operators of public playgrounds and playground equipment shall comply with safety and clean-up procedures to govern the abatement of lead-based paint pursuant to this section and such procedures shall ensure that children and adults are not exposed to lead-based paint or dust contaminated by lead-based paint through its release within or from a worksite, and (2) exposure to lead-based paint shall be minimized until a lead-based paint hazard is remediated.
f. Not later than fifteen months after the effective date of this section, and every six years thereafter, the department shall submit a report to the mayor and the council concerning the administration and enforcement of this section.
§13. Title 16 of the administrative code of the city of New York is amended by adding a new section 16-117.2 to read as follows:
§16-117.2 Transport, storage and disposal of waste containing lead-based paint debris or lead-contaminated dust.
(a) The commissioner shall adopt rules regarding the safe storage, transport, and disposal of waste containing lead-based paint debris or lead-contaminated dust. Such rules shall include provisions that specify:
(1) the minimum quantities of lead-based paint debris or lead-contaminated dust that will be subject to such rules;
(2) safety measures to be taken to control the dispersal of lead-contaminated dust during the storage, handling, and transportation of lead-based paint debris and lead-contaminated dust;
(3) hazard warning labeling requirements for containers of lead-based paint debris and lead-contaminated dust;
(4) reinspection requirements applicable whenever containers of lead-based paint debris or lead-contaminated dust are stored for more than twenty-four hours prior to disposal so as to ensure that there are no visible emissions of lead dust into the air; and
(5) requirements applicable whenever waste containing lead-based paint debris or lead-contaminated dust is disposed of at a site within the city, provided that such disposal shall only occur at sites approved by the commissioner.
(b)(1) Any violation of this section or of any rule adopted pursuant to this section shall constitute an offense punishable by a fine of not less than five hundred dollars and not more than twenty-five thousand dollars, or by imprisonment not to exceed one year, or by both such fine and imprisonment.
(2) In addition to any other criminal or civil penalty authorized by law, any violation of this section or any rule adopted pursuant to this section shall be punishable by a civil penalty of not less than five hundred dollars and not more than twenty-five thousand dollars. Such penalty may be recovered in a civil action brought in the name of the commissioner in any court of competent jurisdiction or in a proceeding before the environmental control board.
§14. This local law shall take effect ninety days after its enactment, except that the
commissioners of health, housing preservation and development and sanitation shall
promulgate all rules and take all other actions necessary to implement this local law on or
before the date upon which it shall take effect.
3/19/02