SECTION 327 – WORK PRACTICES FOR LEAD-BASED PAINT ON PRE-1979 BUILDINGS AND STEEL STRUCTURES

327  Add the following new section:

SECTION 327 – WORK PRACTICES FOR LEAD-BASED PAINT ON PRE-1979 BUILDINGS AND STEEL STRUCTURES

327.1  General.  Any buildings, structures, and properties on which the original construction was completed on or before December 31, 1978, or any steel structures to which lead-based paint disturbance or removal, including surface preparation, additions, alterations, repairs, or demolitions are made, shall comply with the requirements of this section.

327.1.1  Purpose, intent and scope.

327.1.1.1  Purpose.  The purpose of this section is to ensure that any person undertaking activities that result in the disturbance or removal of interior or exterior lead-based paint on pre-1979 buildings, structures and properties and on steel structures uses work practices that minimize or eliminate the risk of lead contamination of the environment.

327.1.1.2  Intent.  The intent of this section is to encourage safe work practices for activities resulting in the disturbance or removal of lead-based paint while providing a reasonable level of health and safety for the occupants and the public at large.

327.1.1.3  Scope.

327.1.1.3.1  Interior.  The requirements of this section apply to any activity resulting in the disturbance or removal of lead-based paint in the interior of pre-1979 buildings, structures and properties or portions thereof with one of the following occupancy classifications: Group E for Day Care and Group R, Divisions 1, 2 and 3. The requirements of this section with regard to the interior of a facility shall include, but are not limited to, residential-based family child-care facilities licensed by the State of California.

327.1.1.3.2  Exterior.  The requirements of this section apply to any activity resulting in the disturbance or removal of lead-based paint on the exterior of any pre-1979 buildings, structures and properties and any steel structures.

327.2  Definitions.  Except as otherwise specified herein, the terms used in this section shall have the same meanings as those set forth in San Francisco Building Code Chapter 2.

   ACCREDITED LABORATORY means a laboratory that operates within the EPA National Lead Laboratory Accreditation Program.

   ADJACENT PROPERTIES means properties that adjoin the regulated area, including but not limited to properties next to and at the corners of lot lines.

   CERTIFIED LEAD INSPECTOR/ASSESSOR means any person licensed or certified by the California Department of Health Services (DHS), as authorized by the United States Environmental Protection Agency (EPA), in accordance with 40 CFR Part 745, subparts L or Q, to perform risk assessment and/or lead-based paint inspection.

   CLEARANCE INSPECTION means an on-site limited investigation using visual observation and sampling techniques performed by an independent certified lead inspector/assessor to verify the absence of lead-based paint hazards, as specified in Title 17, California Code of Regulations, Division 1, Chapter 8: Accreditation, Certification and Work Practices for Lead-Based Paint and Lead Hazards. Any analytical testing of sample(s) collected during such inspection shall be performed by an accredited laboratory.

   COMMON AREA means any interior part of a multi- unit residential building that is accessible to all occupants, including but not limited to: corridor, hallways, lobbies, laundry rooms, storage areas, stairways, porches and interior play areas.

   CONTAINMENT AND BARRIER SYSTEMS refers to various measures that prevent the migration of work debris beyond the regulated area, and usually includes the use of disposable polyethylene plastic sheeting that is at least 6 mils thick (or two layers each 3 mils thick) to protect the ground, floor or other interior surfaces, and to seal off windows, doors and ventilation openings.

   CONTRACTOR means any person, whether or not in possession of a valid State contractor’s license, who undertakes to or offers to undertake to or purports to have the capacity to undertake to or submits a bid to, or does, by himself or herself or by or through others, any action that may or will disturb or remove lead-based paint. For purpose of this section, “contractor” shall also include subcontractors.

   DISTURB OR REMOVE LEAD-BASED PAINT means any action that creates friction, pressure, heat or a chemical reaction upon any lead-based paint on an interior or exterior surface so as to abrade, loosen, penetrate, cut through or eliminate paint from that surface. This term shall include all demolition and surface preparation activities that are performed upon any surface containing lead-based paint.

   EXTERIOR means the outside of a building or steel structure and the areas around it within the boundaries of the property, including without limitations the outside of any detached structures, including but not limited to outside and common walls, stairways, fences, light wells, breezeways, sheds, and garages.

   HEPA means a high efficiency particulate air filter.

   INTERIOR means the inside of a building, including but not limited to the inside of any detached structures, interior common walls, common areas, and overhangs (projections).

   LEAD means metallic lead and all inorganic compounds of lead.

   LEAD-BASED PAINT or LEAD PAINT means (1) any paint, varnish, shellac, or other coating on surfaces with lead in excess of 1.0 mg/cm2 (milligram per square centimeter) as measured by x-ray fluorescence (XRF) detector or laboratory analysis or in excess of 0.5 percent by weight, also expressed as 5,000 ppm (parts per million), 5,000 mg/g (micrograms per gram), or 5,000 mg/kg (milligrams per kilogram) as measured by laboratory analysis; or (2) any paint, varnish, shellac, or other coating found in the interior or on the exterior of pre-1979 buildings, structures, or properties or on the exterior of any steel structures, unless such paint, varnish, shellac or other coating is shown, by a lead-based paint testing, that it does not have the characteristics specified in (1).

   LEAD-BASED PAINT TESTING means testing of surfaces, by laboratory analysis of bulk sample or measurement using x-ray fluorescence detector, to determine the presence of lead-based paint performed by an independent certified lead inspector/assessor. Where laboratory analysis is used as a method of testing bulk paint samples, the laboratory shall be an accredited laboratory.

   PERSON shall have the same meaning as that defined in San Francisco Building Code Chapter 2 and shall also include any department, agency, or commission of the City and County of San Francisco, and State or federal agencies and departments to the extent allowable by law.

   PRE-1979 BUILDING means any building whose original construction was completed on or before December 31, 1978.

   PROHIBITED PRACTICES means any work practice that disturbs or removes lead-based paint using any of the following methods: (1) open flame burning or torching; (2) heat guns without containment and barrier systems, or operating above 1,100 degrees Fahrenheit (611.1 degrees Celsius) or causing the charring of paint; (3) hydroblasting or high-pressure washing without containment and barrier systems; (4) dry manual sanding or scraping, or machine sanding or grinding, or abrasive blasting or sandblasting without containment and barrier systems or a HEPA vacuum local exhaust tool.

   REGULATED AREA means an area in the interior of any pre-1979 buildings, structures or properties with one of the following occupancy classifications: Group E for Day Care and Group R, Divisions 1, 2 and 3; or on the exterior of any pre-1979 buildings or any steel structures, in which work is being performed that disturbs or removes lead-based paint, and to which access is restricted in order to prevent migration of work debris. “Regulated area” shall also include any area contaminated with work debris as a result of a breach or lack of containment and barrier system, which constitutes a violation of the requirement set forth in Section 327.4.2.

   RESPONSIBLE PARTY means either (1) the owner of the property where the owner or the owner’s employees or persons otherwise under the control of the owner are performing the activities regulated under this section; or (2) the owner and the contractor where the owner has entered into a contract with another to carry out the activities regulated under this section.

   STEEL STRUCTURE means any structure that is not a building and which has exterior surfaces made of steel or other metal, such as bridges, billboards, walkways, water towers, steel tanks and roadway or railway overpasses.

   WORK DEBRIS means any debris, including without limitations paint chips and dust, resulting from any activity that disturbs or removes lead-based paint.

327.3  General Prohibitions.  No person shall disturb or remove lead-based paint through the use of prohibited practices, or in any other way that generates work debris during demolition or work on the interior of Occupancy Group E for Day Care and Group R, Divisions 1, 2 and 3 or exterior of any pre-1979 buildings or any steel structure except in accordance with the requirements of this section.

   For purposes of this section, all paint on the exterior of any pre-1979 building or any steel structure shall be presumed to be lead-based paint. Any person seeking to rebut this presumption shall establish through lead-based paint testing, or other means satisfactory to the Director, that the paint on the building or steel structure in question is not lead-based paint.

   Exemption: Work that disturbs or removes lead-based paint from the interior of an owner-occupied pre-1979 dwelling unit shall be exempted from the requirements for demolition or work on the interior of Occupancy Group R, Divisions 1, 2 and 3, provided that such unit is not a licensed childcare facility. Notwithstanding this exemption, the responsible parties shall take all reasonable measures to prevent the migration of work debris from the interior of the owner-occupied dwelling unit to the outside of such unit which includes, without limitations, any interior common areas and the exterior of the building, during the course of any work that disturbs or removes lead-based paint.

327.4  Performance Standards.

327.4.1  Restrict access.  Any person performing work subject to this section shall restrict access by third parties to the regulated area, except as authorized by this section or until the regulated area is cleaned in accordance with Section 327.4.4. This subsection shall not apply to regulated areas that are required for access or egress during the course of the work, such as common areas, and where no alternative exists for access or egress, in which case dust generation and migration shall be controlled through the use of HEPA-attached tools or other feasible containment and barrier systems that allow for access or egress.

327.4.2  Containment and barrier systems.  Any person performing work subject to this section shall establish containment and barrier systems that contains the work debris within the regulated area.

327.4.2.1  Protect ground.  Any person performing exterior work subject to this section shall, to the maximum extent possible, protect the ground from contamination by work debris by laying 6 mil plastic (or two layers each 3 mil thick) on the ground extending at least 10 feet (3048 mm) from the work surface when possible.

327.4.2.2  Protect floor and furnishings.  Any person performing interior work subject to this section shall protect with the use of 6 mil plastic (or two layers each 3 mil thick) any floors and other interior horizontal surfaces, carpets, rugs, drapes, curtains, blinds, shades and furniture in the regulated areas from work debris when it is impracticable to remove such items from the regulated areas during the course of the work.

327.4.3  Prevent migration.  Any person performing work subject to this section shall make all reasonable efforts to prevent the migration of work debris beyond the established containment and barrier systems during the course of the work. Such efforts may include, but are not limited to, providing secure 6 mil plastic (or two layers each 3 mil thick) protective covering, bagging, shrouding, and/or other safe containment and barrier systems to prevent the migration of work debris; covering and sealing any windows, vent openings and doors in the regu- lated area to prevent migration; and instituting measures to prevent the tracking of dust from the regulated areas.

327.4.4  Clean up standards.  At the completion of any work that disturbs or removes lead-based paint or when access to the regulated areas are required by State law or local ordinance during the course of such work, the responsible party shall:

327.4.4.1  For interior work, make all efforts to remove all visible work debris from the regulated areas. Such efforts shall include but are not limited to wet clean with detergent any exposed interior horizontal hard surfaces in the regulated areas and HEPA vacuum the regulated areas.

327.4.4.2  For exterior work, make all efforts to remove all visible work debris from the regulated areas.

327.5  Notification Requirements.

327.5.1  Notification to the Director.  Except as otherwise authorized by this section, prior to the commencement of exterior work subject to this section, the owner or contractor shall provide written notice to the Director, either in person, by U.S. mail or by fax, of the following:

327.5.1.1  The address and location of the project;

327.5.1.2  The scope of work, including the specific location of the work to be performed;

327.5.1.3  The methods and tools for paint disturbance and/or removal;

327.5.1.4  The approximate age of the building or steel structure;

327.5.1.5  The anticipated job start and completion dates for work subject to this section;

327.5.1.6  Whether the building is residential or non-residential, and whether it is owner-occupied or rental property;

327.5.1.7  The dates by which the responsible party has or will fulfill any residential occupant or adjacent property notification requirements as described in Sections 327.5.4, 327.5.5 and 327.5.6 below; and

327.5.1.8  The name, address, telephone number and, if available, pager number of the party who will perform the specified work.

327.5.1.9  The Director shall make available to the public a form containing blank spaces for the information required by Sections 327.5.1.1 to 327.5.1.8, inclusive.

327.5.1.10  In lieu of the submission of the form set forth in Section 327.5.1.9, the owner or contractor may submit the Lead Work Pre-Job Notification form required by the California Division of Occupational Health and Safety pursuant to Section 1532.1 of Title 8 of the California Code of Regulations.

327.5.2  De minimis exemption.  Any person performing exterior work that disturbs or removes less than 100 square feet or 100 linear feet of lead-based paint in total shall be exempted from the requirements of Section 327.5.1.

327.5.3  Sunset.  Unless extended by the Board of Supervisors, the requirements of Section 327.5.1 shall terminate two years from this effective date of this subparagraph.

327.5.4  Post sign.  Not later than the commencement of work subject to this section, the owner or, where the owner has entered into a contract with a contractor to perform work subject to this section, the contractor shall post signs in a location or locations clearly visible at the access points to interior regulated areas, such as at the entrances of the affected residential unit(s) or common areas, and in the case of exterior work, shall post signs in a location or locations clearly visible to adjacent properties stating the following:

   LEAD WORK IN PROGRESS

   PUBLIC ACCESS TO REGULATED AREA

   PROHIBITED

   POSTED IN ACCORDANCE WITH

   SF EXISTING BUILDING CODE SECTION 327.5.4

327.5.5  Requirements for sign.  The sign required by Section 327.5.4 shall be not less than 24 inches (609.6 mm) square and shall be in large boldface capital letters no less than ½ inch (12.7 mm) in size. The Director shall make available to the public a sign that complies with these requirements and states the required information in English, Chinese and Spanish. The sign required by this section shall remain in place until the work subject to this section has been completed. Where it is not possible to post signs in a conspicuous location or locations clearly visible at the access points to interior regulated areas, such as at the entrances of the affected residential unit(s) or common areas, and in the case of exterior work, in a location or locations clearly visible to the adjacent properties, the owner or, where the owner has entered into a contract with a contractor to perform work subject to this section, the contractor shall provide the notice in written form, such as a letter or memorandum, to the occupants of adjacent properties.

327.5.6  Notice to residential occupants.  Except as may be otherwise inconsistent with state law, where work subject to the requirements of this section is to be performed on a residential property or structure regulated by this section and occupied by one or more residential occupants, not less than three business days before work subject to this section is to commence, the owner shall provide the following information:

327.5.6.1  The notice shall be in the form of a sign, letter or memorandum and shall prominently state the following:

   Work is scheduled to be performed beginning [date] on this property that may disturb or remove lead-based paint. The persons performing this work are required to follow State and local laws regulating work with lead-based paint. You may obtain information regarding State laws by calling the California Department of Health Services. You may obtain information regarding local laws, or report any suspected violations of these requirements, by calling the San Francisco Department of Building Inspection. In addition, you may obtain information regarding your rights as a tenant under the San Francisco Administrative Code, by calling the San Francisco Rent Stabilization Board. Finally, the owner of this property is required to provide residential occupants with a copy of the U.S. Environmental Protection Agency pamphlet titled “Protect Your Family From Lead-Based Paint in Your Home,” unless the owner has previously provided this pamphlet to residential occupants.

   The Director shall make available to the public a form that states the required information in English, Chinese and Spanish.

327.5.7  Early commencement of work.  An owner may commence, or may authorize a contractor to commence, work subject to this section less than three business days after providing notices required in Sections 327.5.6 above when the owner determines that such work must be commenced immediately in order to correct life-safety hazards.

327.5.8  Early commencement of work requested by residential occupant.  Upon written request of residential occupant, an owner may commence, or authorize a contractor to commence, work subject to this section less than three business days after providing notices required in Section 327.5.6.

327.6  Inspection and Sampling.

327.6.1  Authority to inspect.  The Director is authorized to inspect the interior or exterior of any building or steel structure upon which work subject to the requirements of this section is being performed for the purpose of determining whether the work is being carried out in accordance with the requirements of this section. This inspection authority shall be exercised in accordance with San Francisco Building Code Section 104A.2.3.

327.6.2  Response to complaint.  Upon receiving a complaint, the Director shall (1) review the complaint; (2) determine whether a valid notification form has been filed with the Director for the property in compliance with the requirements of Section 327.5.1; and (3) where deemed necessary by the Director, conduct an inspection at the job site within two business days to determine the validity of the complaint.

327.6.3  Evaluation of complaint.  When determining the validity of a complaint, if the Director is not able to observe the actual performance of any work practices constituting violations of Sections 327.3, 327.4 and/or 327.5, the Director shall investigate and consider the following:

327.6.3.1  The containment and barrier systems, work measures and work tools being used by the responsible party;

327.6.3.2  The color(s) of paint being disturbed or removed by the responsible party;

327.6.3.3  The color(s), quantities, nature and locations of work debris;

327.6.3.4  The color(s), locations and conditions of paint on buildings or steel structures adjacent to the regulated area, including without limitations adjacent properties, to determine if such paint could be a source of the work debris;

327.6.3.5  Any work being performed on adjacent properties which could be a source of the work debris; and

327.6.3.6  A record of clearance inspection of the regulated area performed after the completion of the work regulated under this section or records of any lead-based paint testing performed for the regulated area, if available; and

327.6.3.7  Any other relevant evidence that the Director determines in the exercise of his or her discretion would help to determine whether a violation of this section has occurred.

327.6.4  Authority of Director.  The Director or the Director of the Department of Public Health may also collect paint, dust and soil samples from the property where the work is being performed and from adjacent properties in order to determine the validity of a complaint. The Director shall have the authority to order a clearance inspection of the regulated area if he or she determines that there has been a violation of the requirements of Section 327.3 or 327.4.

327.7  Enforcement.  In addition to the enforcement authorities granted to the Director by San Francisco Building Code Chapter 1, whenever the Director determines that a violation of the provisions of this section has occurred, the Director may assess an administrative penalty against the responsible parties pursuant to Section 327.8. The notice of penalty shall be served on the party against whom the penalty is being assessed. The notice of penalty shall be final and shall be adopted by the Director as a Director’s Order if the responsible party fails to appeal the notice of penalty as provided for in Subsection 327.8.

327.8  Penalties.

327.8.1  In addition to any other penalties authorized by law, the Director may impose administrative penalties for violations of this section. Such penalty shall not exceed $500 per violation per day. In addition to the administrative penalties assessed pursuant to this section, the Director may assess additional fees to cover the reasonable costs incurred in enforcing the administrative penalties. Penalties and fees assessed shall continue to accrue against the responsible party or parties until the violation of this section is abated or otherwise remedied in the judgment of the Director. Each day in which the violation continues unabated constitutes a separate and distinct violation.

327.8.1.1  Use of penalty.  Any administrative penalty and fee received by the Treasurer of the City and County of San Francisco shall be placed in the Building Inspection Fund and used to offset the Department’s costs in connection with the administration and enforcement of this section.

327.8.2  Appeal penalty.  A responsible party may appeal the imposition of the administrative penalty by requesting, in writing, a Director’s hearing. Such appeal shall be made within 15 business days from the issuance of the notice of penalty and shall specify grounds for appealing the imposition of the administrative penalty. Upon a timely request for a Director’s hearing, the Director shall conduct an administrative hearing in accordance with Section 327.9.

327.8.2.1  Alternative penalty.  The Director, in his or her discretion, may allow a responsible party found to be in violation of this section to attend a training course approved by the State of California Department of Health Services in lead-related construction supervision and project monitoring in lieu of paying an administrative penalty pursuant to Section 327.8.1 in which case the penalty is stayed until such time that the responsible party provides proof of satisfactory completion of the course. The Director shall require proof of attendance and satisfactory completion of the course, including certification from the instructor or provider of the course before dismissing the penalty assessed against the person. Failure to provide such proof when requested by the Director shall result in the reinstatement of the assessed penalty against the responsible party.

327.8.2.1.1  Applicability.  The alternative penalty set forth in Section 327.8.2.1 shall only be available to persons who have not previously completed such a training course and who have not been previously found by the Director to be in violation of this section.

327.9  Administrative Enforcement Procedures.

327.9.1  Action by the Director.  If the responsible parties failed to comply with the notice of violation, Stop Work Order and/or notice of penalty issued pursuant to this code, the Director may:

327.9.1.1  Refer the matter for a hearing in accordance to the provision of this subsection; or

327.9.1.2  Issue another notice of violation, Stop Work Order, and/or notice of penalty, if appropriate; or

327.9.1.3  In the case where the responsible party is a contractor, file a complaint with the State Contractor Licensing Board.

327.9.2  Notice of hearing.  Notice of any hearing conducted under this section shall be given in accordance with San Francisco Building Code Chapter 1.

327.9.3  Hearing.  Any hearing held pursuant to this section shall be conducted in accordance with San Francisco Building Code Chapter 1.

327.9.4  Decision.  Except as otherwise provided for in this subsection, any decision issued pursuant to this subsection shall be issued in accordance with San Francisco Building Code Chapter 1A .

327.9.4.1  Where the order imposes administrative penalties, the order shall apprise the responsible parties of their rights to seek judicial review in the Superior Court of San Francisco pursuant to Section 1094.6 of the California Code of Civil Procedure.

327.9.5  Posting and service of order.  The Director’s order shall be posted and served in accordance with San Francisco Building Code Chapter 1A .

327.9.6  Appeal of order.  Any person may appeal the Director’s order issued pursuant to Section 327.9.4, provided that such appeal is in writing and filed with the Abatement Appeals Board pursuant to San Francisco Building Code Chapter 1A . Upon the determination of the Clerk of the Abatement Appeals Board that all requirements to make an appeal have been met, the monetary portion of the Director’s order shall be stayed pending the appeal.

(Amended by Ord. 65-19, File No. 190136, App. 4/12/2019, Eff. 5/13/2019)

327.9.6.1  A responsible party against whom administrative penalties are imposed may seek judicial review of the monetary portion of the order by filing a writ of mandate with the Superior Court of San Francisco pursuant to Section 1094.6 of the California Code of Civil Procedure.

327.9.7  Referral to the City Attorney’s Office.  If the responsible parties fail to comply with a final and non-appealable order, the Director may refer the order to the City Attorney’s Office for civil prosecution. In any action brought by the City Attorney’s Office to enforce a final and nonappealable order, the responsible party shall be liable for all costs and fees including, but are not limited, to attorneys fees incurred by the City.

327.10  Miscellaneous.

327.10.1  Method of service.  Unless otherwise specified, any notices and orders issued pursuant to this section shall be served in accordance with San Francisco Building Code Chapter 1A .

327.10.2  Proof of service.  The person serving the notice or order as provided herein shall file an affidavit or declaration thereof under the penalty of perjury, certifying the time and manner in which such notice was given. Such person shall also file therewith any receipt card of such notice or order if service was performed by certified mail.

327.11  Remedies and Enforcement by City Officials.

327.11.1  No obligation by City.  In undertaking the enforcement of this section, the City and County of San Francisco is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

327.11.2  Discretionary duty.  Subject to the limitations of due process, notwithstanding any other provision of this section, whenever the words “shall” or “must” are used in establishing a responsibility or duty of the City, its elected or appointed officers, employees or agents, it is the legislative intent that such words establish a discretionary responsibility or duty requiring the exercise of judgment and discretion.

327.12  Severability.  If any section, paragraph, sentence, clause or phrase of this section is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this section. The Board of Supervisors declares that it would have passed each section, paragraph, sentence, clause or phrase of this section irrespective of the fact that any portion of this section could be declared unconstitutional, invalid or ineffective.