(a) Peeling lead-based paint prohibited.
(1) There shall be no peeling lead-based paint or peeling paint of unknown lead content on any surface in a facility.
(2) Peeling lead-based paint and peeling paint of unknown lead content shall be immediately abated or remediated upon discovery by the permittee, or the owner of a building in which a program is located, regardless of whether there has been an inspection or order issued by the Department, in accordance with 24 RCNY Health Code § 173.14.
(3) When there has been an order to abate or remediate lead-based paint hazards issued by the Department, the permittee, or the owner of the building in which the program is located must use only the methods specified in such order.
(A) After such order has been served by the Department, the permittee must post the notices required by 24 RCNY Health Code § 173.14(e)(1)(A) at or near the entrance of the facility.
(B) The permittee must comply with the requirements of the order within 21 days after service of the order. Where compliance with the time period requirements of this subdivision would cause undue hardship and the permittee demonstrates a good faith effort to timely comply, such as by showing that it has taken steps to remediate, including by retaining a contractor to conduct the remediation, and demonstrates to the satisfaction of the Department that it is maintaining adequate controls to protect children from a lead-based paint hazard, the Department may, at its discretion, extend the time period for compliance.
(4) When the Department finds a lead-based paint hazard as defined in 24 RCNY Health Code § 173.14(b) or a lead dust hazard as defined in EPA 40 C.F.R. § 745.227(h)(3)(i), on the interior of the facility, or concentrations of lead in the paint of the exterior surfaces of the facility, that may be creating a danger to health, it may in such cases as it deems essential, order the abatement or remediation of any such condition in a manner and under such safety conditions as it may specify. The Department may also order the removal or covering of soil appurtenant to any facility when it determines that there are concentrations of lead in such soil which exceed allowable limits of the U.S. Environmental Protection Agency published in 40 C.F.R. Part 745 or successor regulations and further determines that such concentrations may be dangerous to health.
(5) The work practices of 24 RCNY Health Code § 173.14 shall not apply to repair and maintenance work in a facility which disturbs surfaces of less than two square feet of peeling lead-based paint per room or 10 percent of the total surface area of peeling paint on a type of component with a small surface area, such as a window sill or door frame.
(6) Maintenance staff workers in facilities that contain lead based paint or paint of unknown lead content, and who regularly do repair work that may disturb such paint, shall attend a HUD/EPA approved 8-hour course on lead safe work practices in accordance with 24 RCNY Health Code § 173.14(2)(b).
(7) Children shall not be present and shall not have access to any room undergoing abatement, remediation or other work which disturbs lead-based paint or paint of unknown lead content until after completion of final clean-up and clearance dust testing.
(8) The permittee, or the owner of a building in which a program is located, in which paint has not been tested by X-ray fluorescent (XRF) analysis by or on behalf of the Department for lead content, may object to an order issued to remediate peeling lead-based paint or peeling paint of unknown lead content, by submitting evidence satisfactory to the Department that the surface of any component cited in the order as requiring remediation does not contain lead-based paint, as follows:
(A) Such evidence shall consist of a sworn written statement by the person who performed the testing on behalf of the permittee, or building owner supported by: lead-based paint testing or sampling results, including a description of the testing methodology and manufacturer and model of instrument used to perform such testing or sampling; a copy of the certificate of training of the certified lead-based paint inspector or risk assessor; a copy of the inspection report of the inspector or risk assessor, including a description of the surfaces in each room where such testing or sampling was performed; and a copy of the results of XRF testing and/or such laboratory tests of paint chip samples performed by an independent laboratory certified by the state of New York where such testing has been performed.
(B) Such written statement and all supporting documentation shall be submitted to the department not later than thirty (30) days before the date set for compliance with an order to remediate, and shall only be submitted where the Department has not performed an XRF test prior to issuing such order. Receipt by the Department of a complete application in accordance with this paragraph including such written statement and such supporting documentation shall toll the time period to comply with the order. Receipt of an incomplete application shall not toll the time period for compliance with the order.
(C) The Department shall notify the applicant of its determination in writing, and, if the Department rejects the application, such notice shall set a date for compliance.
(D) The performance of lead-based paint testing shall be in accordance with the definition of lead-based paint established in 24 RCNY Health Code § 173.14. Laboratory analysis of paint chip samples shall be permitted only where XRF tests fall within the inconclusive zone for the particular XRF machine or where the configuration of the surface or component to be tested is such that an XRF machine cannot accurately measure the lead content of such surface or component. Laboratory tests of paint chip samples, where performed, shall be reported in mg/cm
2
, unless the surface area of a paint chip sample cannot be accurately measured, or if an accurately measured paint chip sample cannot be removed, in which circumstance the laboratory test may be reported in percent by weight. Where paint chip sampling has been performed, the sworn written statement by the person who performed the testing shall include a statement that such sampling was done in accordance with 40 C.F.R. § 745.227 or successor provision.
(E) Testing for lead-based paint may only be conducted by a person who has been certified as a lead-based paint inspector or risk assessor in accordance with subparts L and Q of 40 C.F.R. Part 745 or successor provisions and such testing shall be performed in accordance with 40 C.F.R. § 745.227(a) and (b) or successor provisions.
(b) Child care programs in operation prior to May 1, 1997. No child care program permit shall be issued or renewed, unless all interior window sills and window wells accessible to children, chewable surfaces, deteriorated subsurfaces, friction surfaces, or impact surfaces, and such other surfaces in the facility as may be determined by the Department, containing or covered with lead-based paint or paint of unknown lead content shall have been abated or remediated in accordance with 24 RCNY Health Code § 173.14 or as otherwise directed by the Department.
(c) Programs commencing operation on or after May 1, 1997. No program which received its first permit or which, if no permit was previously required, commenced operation after May 1, 1997, shall be issued a permit where there is lead-based paint on any interior surface in its facility.
(d) All paint or other similar surface coating material on furniture and equipment shall be lead-free.
(e) Annual survey. At least once each year, the permittee operating a program in which any surfaces are covered with lead-based paint or paint of unknown origin must conduct a survey of the condition of all such surfaces. The permittee must note the results of the survey on a form provided by or approved by the Department. The survey form must include, but need not be limited to, the following: the date of the survey; a description of, and the location of, each surface surveyed and remediation status, if applicable. The permittee must provide a copy of the survey results to the Department.
(1) Submission of such survey to the Department must be on or before the permit issuance date, or the anniversary thereof.
(2) Copies of such survey results may be submitted to the Department by mail, fax or electronically.
(3) Within 30 days of submitting the annual survey results to the Department, the permittee must notify the parent or guardian of each child attending the program of the results of the annual survey. Such notice may be provided electronically if the permittee routinely communicates with parents or guardians electronically and may refer to detailed results on a website if such results are maintained there. The permittee must maintain documentation on premises indicating the date on which such notice was provided. A copy of the notice and proof of the date when such notification was made must be made available to the Department immediately upon request. If such records are maintained electronically, Department staff must be allowed to access such records while on-site.
(f) Declaration, pursuant to Administrative Code § 17-145. The existence of a lead-based paint hazard in a facility, or failure to comply with this Section or 24 RCNY Health Code § 173.14 in correcting such hazard, is hereby declared to constitute a public nuisance and a condition dangerous to life and health, pursuant to § 17-145 of the Administrative Code. Every person obligated to comply with the provisions of this section of this Code is hereby ordered to abate or remediate such nuisance by complying with any order or direction issued by the Department.
(g) Failure to comply with Department orders. In the event that the Department determines that a permittee, or the owner of a building in which a program is located has failed to substantially comply with an order issued, pursuant to this section within 45 days after service thereof, the Department shall, in accordance with § 17-911(d) of the Administrative Code, request an agency of the City to execute such order, pursuant to the provisions of § 17-147 of the Administrative Code.
(h) Definitions. Except as otherwise provided, all terms used in this section shall have the same meanings as the terms defined in 24 RCNY Health Code § 173.14.
(Amended City Record 9/20/2017, eff. 10/10/2017; amended City Record 6/12/2018, eff. 7/12/2018; amended City Record 12/26/2019, eff. 1/25/2020)