Section 67-5.5 - Lead Hazard Inspections & Dust Wipe Sampling
Effective Date
67-5.5 Lead Hazard Inspections & Dust Wipe Sampling. For rental units subject to the Rental Registry:
(a) Lead hazard inspections must be conducted in a manner acceptable to the department, and the results of said inspections recorded on a lead hazard inspection report.
(b) Satisfactory lead hazard inspection reports and satisfactory dust wipe sample results are due by the date specified by the department or its designated representative, but inspection and dust wipe sampling at a minimum must occur at a frequency of once every three years unless exempted in accordance with the provisions of this Subpart.
(c) A lead hazard inspection shall include, at minimum, a visual assessment of paint condition in each rental unit, all common interior and exterior areas of the dwelling, and exterior soil conditions on the property as defined by boundaries recorded in a registered deed or survey. Both the interior and exterior painted surfaces shall be examined for the presence of deteriorated paint and visible chips, debris, or residue. In cases of a visual assessment, the presence of lead shall be assumed for painted surfaces for structures built prior to 1980 and any deteriorated paint surfaces shall be cited as hazards. The department or its designated representative may also require an environmental investigation using a lead paint analyzer to identify lead-based paint hazards.
(d) Visual assessment will determine the presence of lead soil hazards. Areas of bare soil on the property as defined by boundaries recorded in a registered deed or survey, and determined by the inspector to be accessible to tenants and a potential hazard, will be classified as a visual lead soil hazard. Remediation will include covering the area(s) of bare soil with a durable and appropriate material acceptable to the department or its designated representative. Owners who contest that exposed soil is not a lead hazard are responsible for obtaining soil samples taken by an EPA-certified Lead Risk Assessor. Results within the standards established by the EPA in 40 CFR 745.65 for residential soil-lead hazard limits and analyzed at an approved laboratory must be submitted to the department or its designated representative to relieve the owner of the requirement to remediate the area(s) of bare soil. All lead safety certificates will be contingent on visual assessment of soil. In times of snow cover, lead soil hazards are not accessible and cannot be assessed. Therefore, visual soil hazards will not be cited when the ground is covered by snow, but this condition will be explained on the lead safety certificate.
(e) The department, its designated representative, or a third-party inspector may perform a lead hazard inspection and associated sampling. A qualifying third-party inspector, including but not limited to property managers, landlords or property owners, must be certified by the EPA as a Lead Risk Assessor.
(f) Satisfactory dust wipe sample results are required to be submitted as part of the lead safety certificate. If lead-based paint hazards are identified during the lead hazard inspection, dust wipe samples shall be collected after the lead-based paint hazards are remediated and the unit is thoroughly cleaned in accordance with the requirements of section 67-5.7(d)(l)(iv) of this Subpart. Visible dust or debris in outdoor living areas must be thoroughly cleaned and visible lead-based paint chips on the ground must be completely removed before final inspection.
(g) Dust wipe samples shall be collected from floors (excluding open porches), and, where practicable, interior windowsills and/or window troughs using a procedure acceptable to the department.
(h) When a lead dust wipe sample exceeds EPA dust lead action levels, the rental unit must be properly cleaned before dust wipe sampling is repeated. In cases with more than one failed round of clearance dust wipe sampling, all painted friction surfaces, including windows, shall be assessed for rubbing or binding and shall be cited as a lead-based paint hazard if they do not open or close easily. The lead-based paint hazard(s) shall be remediated or abated in a manner acceptable to the department or its designated representative prior to further dust wipe sampling.
(i) All samples of painted surfaces, paint, dust, soil, or other potential lead sources collected during a lead hazard inspection must be analyzed by an approved laboratory.
(j) To avoid conflicts of interest regarding lead hazard inspections and dust wipe sampling, all lead risk assessment activities described herein must be performed by a person or entity independent of those performing lead hazard remediation activities.
(k) Lead-based paint and visual lead soil hazard reduction, remediation, abatement, or interim controls must be conducted in accordance with all applicable laws, rules, and regulations.
(l) Lead hazard inspections that identify lead-based paint hazards and visual lead soil hazards will be considered unsatisfactory and a lead safety certification will not be issued for such properties. Third-party lead hazard inspection reports with unsatisfactory findings must be submitted by the owner to the department or its designated representative within 15 days of the inspection taking place. Unsatisfactory dust wipe sample results must be submitted to the department or designated representative within seven days of receipt by the third-party inspector or the owner of the rental unit or the owner’s representative.
(m) Third-party inspections and associated lead safety certifications are subject to audit by the department or its designated representative, including confirmatory inspection(s) pursuant to subdivision 5 of section 1377 of the Public Health Law, as well as document review. The owner or representative of the owner of a registered property subject to audit shall facilitate timely access to all areas of the property by the department or its designated representative, and shall produce all such records that the department or its designated representative may request in the conduct of said audit.
(n) Rental unit(s) subject to the requirements of this Subpart may be exempted from lead hazard inspections and dust wipe sampling. However, rental units exempted from inspection by the provisions of this section shall not be exempted from the registration requirements of this Subpart and are subject to resumption of inspection requirements at the discretion of the department or its designated representative. Rental units may be exempted from inspections as follows:
(1) Where the rental unit is determined to be free of lead-based paint, as evidenced by a surface-by-surface lead paint analyzer inspection and dust wipe samples, which are confirmed by the department or its designated representative via an onsite audit.
(2) Where the department or its designated representative confirms that lead-based paint has been abated by removal or replacement, as evidenced by a surface-by-surface lead paint analyzer inspection and dust wipe samples conducted by the department or its designated representative via an onsite audit.
(3) Where the rental unit is not rented and is instead occupied by the owner or the immediate family of the owner, and the owner provides a written attestation, signed and submitted under penalty of perjury, that they occupy the rental unit as their primary domicile. Attestations must be submitted to the department or its designated representative at least once every three years. Failure to submit the required attestation shall render a lead hazard inspection and dust wipe sampling exemption invalid.