THE LATEST ON LEAD PAINT.....
FRESH AND UP TO DATE...
The Final Cut; NEW LEAD CODE TO BEGIN JULY 1ST 2006 !! The City Council on DEC 2Oth 2005 voted 9-0 and passed a new lead code called "Lead-Based Paint Poisoning Prevention" which will become article III of Chapter 90 -The Property Conservation code. since then amendments were voted in (March 2006) click here for the up to date version of this codein its entirety |
(12-1-05) The Monroe County "Deteriorated Paint Pilot Project ". Should the County require QHI inspections to have lead paint risk assessments as part of these inspections ?? click here for the results County Executive: Maggie Brooks - press release he full |
UPDATE....! ( 6-02-06) |
past UPDATES.... (4-24-06)
Good morning,
I have had several e-mails asking if I'm still alive because you have not heard from me. Well, I'm alive but working very hard. I have some updates for you. The meeting in Albany: We had a very good showing of members. The City was there and the CPLP. We all had an opportunity to speak and I must say out of everyone speaking we really knew the EPA standards and put forth a very good case. Unfortunately the Code Council did vote that this was out of their jurisdiction and could not approve or disapprove of the legislation.
The result, we have the legislation going into effect on July 1st, 2006.
Good news: We have been able to get two amendments to the legislation. We refer to these amendments as the Mary-Lee Amendments. Lee Houstin and myself worked very hard to educate the City on the ridiculousness of these two areas of the code and why the code needed to be changed. The next time you see Lee Houstin be sure to thank her. The first amendment changed the requirement of a dust wipe on an exterrior porch floor. The legislation was orginally written with the requirement of a dust wipe on exterrior porch floors. This clearly does not follow the EPA standards, EPA does not have a standard for exterrior porch floors. That wold be same as dust wiping the street. As you can see City Council was fed some real unscientific data. Fortunately, we were able to correct this with scientific data. Enclosed porches are considered a room and enclosed porches can be dustwiped. The second amendment changed the need for a risk assesor to identify all lead based paint in a unit after a city inspector cited violations. This clearly was of no use. To cite all lead based paint in a unit at a cost of $450.00 per unit was an warranted expense. The city inspector cited the hazards, the need for another inspection was not needed. Also, a risk assessor could not just come into a unit and identify all lead based paint and not cite hazards. Risk Assessors are certified and must follow standards set before them to obtain and keep their liciences. Again, as we educated the City administration we were able to encourage City Council to amend the legislation. I contiue to work very hard with the City and County. I have attended several meetings with the city and just attended the Advisory Meeting that reports back to the Mayor. I need to report that I was very dissappointed that I was the only housing provider present BUT I am confident that will not happen again. I sat at a table with most members of non-profit agencies and the CPLP. I was allowed to express the devasting effects this legislation will have on our community and to correct individuals when they cited incorrect data. I have submitted a list to the City of those that should be in attendance at these meetings (housing providers, realtors, DSS and the Health Department and an expert risk assessor that knows the standards, hopefully the health department will fill that need). NYSC was asked to partner with the Health Department in getting out information on the new State Pesticide Law. Soon, you will receive a letter from Dr. Doniger and the NYSC explaining the protocol that is needed when spreading pesticides on your lawns. Also, NYSC has been asked to partner with the county on a new Lead Hazard Control Grant. Of course we agreed, we are not sure if HUD will approve of this grant so don't get too excited until it is approved. We have come along in the last year. We are truely working hand and hand with our community and they realize just how important we are to the vitality of our City. We have had other accomplishments in our legal battles and I will obtain a qualified report on those and forward within the next week. I continue to work hand in hand with City Administration to change errors in the legislation. Hopefully, as they become educated in the standards and realize the ramifications of some of the code requiredments they will be open to more amendments. We can only educate and inform with the hope of change. I will keep you posted as we move along.
Mary D'Alessandro, President NYSC
past update: 3-16-06
This lead code required approval from The State Fire Prevention and Building Code Council for the use of more restrictive standards (MRLS) than the State allows and We went to Albany on March 15th 2006;.
view- Mayor Duffy's petition to the state
view - a well written Coalition position statement delivered to the State Council by Dave Ahl
view - the NYSC's lead chairmen and president (Mary D'Alessandro)
position statement also delivered to the State Council
And here is what Happend:
This isn't a code issue ! This is a health issue !! ........
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City's lead-paint measure gets a 'go'
Brian Sharp D&C Staff writer (March 16, 2006) —
Legislation aimed at reducing lead-based paint hazards in Rochester's older housing cleared a state review Wednesday to keep rolling toward a July 1 start date. The state Fire Prevention and Building Code Council reviewed the city initiative during a 2½-hour hearing in Albany, only to decide that the matter was outside its responsibilities because it was largely a health issue. "The law is going to be a go," Derrick Hazle, executive director of the Coalition to Prevent Lead Poisoning, said in a telephone interview following the hearing. City Council adopted code amendments in December, making some last-minute adjustments during its meeting Tuesday night. The legislation adds lead hazards to city inspectors' checklists. Lead was banned from house paint in 1978 but remains in thousands of Rochester homes and poses health risks, particularly to children. Cleanup options can vary from painting over deteriorated paint to replacing windows or other more involved action. The state council reviews any measure more restrictive than state code. "The distinction that they made was that this is really a health issue, less a building code issue," said Molly Clifford, director of the city's Neighborhood Empowerment Teams. "Rochester has addressed this issue in a different way than other communities across the country. Usually, it is a health department issue." Clifford said clearing the state hurdle keeps the city on track. City officials have been meeting weekly and expect to roll out their plan in mid-April, allowing time for final revisions. Clifford said the city still is deciding whether to do lead testing in-house or contract with another firm. Officials have asked U.S. Sen. Charles Schumer, D-N.Y., for $2 million in federal aid to offset expenses related to the legislation.
_________________________________________________________
The development of legislation can be a very long and tedious process. In the case of the lead paint legislation, it required a clear understanding of the standards, terminology and procedures needed to carry out and comply with the legislation enacted in order to make it reasonable and consistent with state and federal laws. This clearly was not the case on December 20, 2005.
Our City Council did a disservice to this community in the way they voted on this lead legislation. It was very apparent that most did not fully comprehend what they were voting on. They were bickering back and forth about the contents of proposed amendments. Reasoned and informed debate was overridden by tearful pleadings. Amendments were not available for the city residents and investors to see or comment on before the vote. The code has errors, items lack clarification, and there is a gross misunderstanding of state and federal standards. This legislation was truly based on politics and not the children.
I, and others, sat on committees within the Coalition to Prevent Lead Poisoning (CPLP). We were verbally abused and one professional was threatened with assault by a “children’s activist”. The comments of housing providers were rejected out-of-hand. Many important agencies left the table because of heavy-handed tactics. The CPLP discredited County and City programs. Katrina Kofmacher falsely discredited the results of legitimate scientific studies. She also discredited the results of the Section 8 program, which in fact has had no documented children poisoned in their units. CPLP continually gave inaccurate information to Rochester’s City Council and the community via the media, even after being corrected by Dr. Doniger.
This legislation illegally attempts to supercede Title X of the Public Health Law. PHL Section 1370-b (3) declares that the New York State Advisory Council on Lead Poisoning Prevention shall “develop a comprehensive statewide plan to prevent lead poisoning, “Where the State has demonstrated its intent to preempt an entire field and preclude any further local regulation, local law regulating the same subject matter is consider inconsistent and will not be given effect.*** The legislature’s intent to preempt may be inferred from a declaration of policy or from a comprehensive or detailed scheme in a given area.” Incorporated Village of Nyack v Daytop Village, Inc 78 N.Y. 2d 500 (1991); Cohen v Village of Saddle Rock, 100 N.Y. 2d 395 (2003); People v De Jesus, 54 N.Y. 2d 465 (1978).
When the legislature uses a term like “comprehensive statewide plan”, they know exactly what that means. It means, “This is ours. Municipalities, stay out.” That makes sense if you think about it. Municipalities are constitutionally prohibited from giving “gifts” (grants) to individuals to help in this effort. Only the State can supply the needed funding. And the legislature didn’t want any municipality to impose any draconian requirements without the funding to implement them.
This legislation is a dramatic burden to current and prospective city investment property owners. The frequency of inspections associated with a non-owner occupied home is already cumbersome. The following inspections (some of them multiple inspections) could all take place in less than a year’s time:
1. NET C of O Inspections
2. NET Tenant Complaint Inspections
3. NET Area Survey Inspections
4. NET Referral (from various agencies) Inspections
5. DSS QHI Move-in Inspections
6. DSS QHI Move-out Inspections
7. Fire Department Safety Inspections
8. RGE Electrical Turn-on Inspections
9. Monroe County Public Health EBL Inspections
10. Insurance Company Safety Inspections
11. Section 8 Housing Inspections
12. Bank/Mortgage Inspections
13. Lead Paint Inspections (as an add-on or as an independent inspection)
In the Impact Study, Mayor Duffy stated, “ Our goal is for the City to ensure the lead safety of areas identified at the highest risk for lead poisoning. In those targeted areas, for landlords that finance their own interim controls or abatement outside of City or County sponsored programs, the City will pay for follow up testing. We will work with County and state legislators to ensure that homes that have been tested and found to be safe are no longer held strictly liable and that insurers are required to provide coverage for any negligence claims (short of gross or willful negligence) that may be brought against them.”
Our City paid a tremendous amount of money to have a Generic Environmental Impact Study preformed. The final draft of the study was released on the day that Chief of Staff presented City Council with Lead Legislation. Truly the legislation was written before the final results of the study could be reviewed and used to develop legislation.
The GEIS reported:
· It would take 10 yearsfor renter-occupied properties to return to a positive cash flow – unrealistic for many owners.
· Alternative #1 had the greatest burden and negative economic impact on property owners, and Alternative #3 had the least negative impact on property owners. The degree of abandonment would be based on the selected alternative.
· The CPLP’s “Fund the Fix Work Group” researched how to provide resources to eliminate lead from the community. The findings showed that little to no resources existfor landlords who do not qualify for government programs, especially smaller landlords.
· The GEIS reported on several States that developed lead legislation. Milwaukee, Wisconsin enacted a 3-year Residential Rental Property Lead-Based Paint Hazard Control Pilot Project. It was administered by the Milwaukee Health Department (MHD). The main difference between the Milwaukee ordinance and the proposed Rochester ordinances is that it applied only to pre-1950 buildings. Another difference is that the Milwaukee ordinance included funding opportunities to reduce the cost of risk assessments and lead abatement. The GEIS also reported on the legislation enacted by The State of Massachusetts. The law provides a $1500/unit state income tax credit for owners who successfully complete permanent controls. The state also made grants and loans available to permanently control hazards.
As you can see, other states/municipalities were prepared to empower property owners and owners of rental housing with inspections, grants, loans before the adoption of legislation. Instead, the CPLP pushed for, and largely achieved, a proposal that foists the entire cost of this effort onto housing providers, without providing any economic assistance. Rochester’s legislation was largely drafted by activist tenant-advocate attorneys. It was developed with an open hostility against housing providers. The legislation is so cumbersome and complex that even the best-intended housing provider would have difficulty complying with every provision.
After an extensive review of this lead code passed on Dec 20th 2005, We at the NYS Coalition have been busy in an attempt to assist the City with its interpretation and implementation.
There is still much work ahead....
This letter was sent out on Jan 11th 2006 to all vested parties:
City Council and City Leaders,
I, Mary D’Alessandro, President of the New York State Coalition of Property
Owners & Businesses, Inc. hereby submit this letter on behalf of the
NYSCPOB, to obtain answers to questions, receive clarification on issues
that are unclear and to make requested modifications and corrections.
It is my understanding that Lois Geis declared the legislation a living
document and is able to be amended. It is also of concern of ours that this
legislation was based on emotion and pressure from an activist group that
continually report incorrect facts or bad Science. It is our hope that in
the future City Council will listen to our paid experts that our community
offers. A contracted impartial private professional EPA certified risk
assessor not associated with either the housing providers or lead coalition
activists would prove to be a wise investment by the City of Rochester.
Our concerns are :
90-52 Definitions:
Deteriorated Paint means any interior or exterior paint or other coating
that, through a visual assessment, is found to be peeling, chipping,
crazing, flaking, abrading, chalking or cracking, or any paint or coating
located on an interior or exterior surface or fixture that is otherwise
damaged or separated from the substrate, or a chewable surface that contains
visual signs of chewing.
CLARIFICATION:
This definition is not following the EPA definition of Deteriorated paint
therefore the word crazing and abrading needs to be clarified! Those of us
that have already attended Lead Safe Work Practices are not familiar with
newly unscientific additions. Also, what is the purpose of the addition to
the statement, “ chewable surface that contains visual signs of chewing?”
This would be considered a damaged surface that is already covered in the
definition. It appears there is confusion; this is a protocol that is used
for elevated blood level investigations.
Adding to Scientific definitions set forth by our highly trained government
officials is not a protocol of good science.
REQUESTED MODIFICATION :
Sec. 35.110 Deteriorated paint means any interior or exterior paint or other
coating that is peeling, chipping, chalking or cracking, or any paint or
coating located on an interior or exterior surface or fixture that is
otherwise damaged or separated from the substrate.
90-53 Presumptions and obligations:
D. Residential buildings subject to the Certificate of Occupancy
requirements of Section 90-16 shall be maintained “free of lead-based paint
hazards”.
REQUESTED MODIFICATION /CORRECTION:
Residential buildings subject to the Certificates of Occupancy requirements
of Section 90-16 shall be maintained free of “deteriorated paint
violations” above the de minimus level.
Note of concern: This requirement as presented by Council is unrealistic and
impossible. The definition of “lead-based paint hazards” includes
“lead-based paint that is … present in chewable surfaces, friction surfaces
or impact surfaces, such as doors and windows. Under 90-53 (A) all paint in
rental housing is presumed to be lead-based. Thus, any “rental” house that
has any paint on any door or window is in violation of this “obligation.” It
is well known that dust levels will quickly re-accumulate due to tracked in
ambient lead dust naturally present in the environment which is beyond the
control of the housing provider.
90-54 Violations:
A. Deteriorated paint violation.
The interior and exterior of any residential building for which a
Certificate of Occupancy is required pursuant to Section90-16, on which the
original construction was completed prior to January 1, 1978, and the
exterior of any non-residential structure on which the original construction
was completed prior to January 1, 1978, shall be maintained in a condition
such that the paint thereon does not become deteriorated paint, unless the
deteriorated paint surfaces total no more than:
1. 20 square feet on exterior surfaces;
2. 2 square feet in any one interior room or space; or
3. 10 percent of the total surface area on an interior or exterior type of
component with a small surface area. Examples include windowsills,
baseboards, and trim.
REQUESTED MODIFICATION /CORRECTION:
90-54 (A) follows EPA standards and is worded correctly, however, 90-53 (D)
is contrary to 90-54 (A). Statements need to be consistent within each
section of the legislation.
90-55 Inspection for violations.
All inspections, including, but not limited to, inspections performed as
part of an application for a Certification of Occupancy pursuant to Section
90-16 of the City Code, a renewal of a Certificate of Occupancy, or based
upon the filing of a complaint, shall include a visual assessment for
deteriorated paint and bare soil violations. With respect to units located
in the high risk area identified by the Mayor or the Mayor’s designee, when
the visual assessment identifies no deteriorated paint violation, wipe
samples shall be obtained in accordance with the protocols established in 40
CFR 745.227(e)(8)(v)(B) to determine whether a dust –lead hazard violation
exists. When a dust-lead hazard is identified, a Clearance as described
in90-57 shall be required in order to remove such violation. The high risk
area to be identified by the Mayor or the Mayor’s designee shall, at a
minimum, consist of those census block groups which cumulatively encompass
an area in which no fewer that 90% of the nits identified by the County
Health Department for inspections in conjunction with its elevated
blood-lead level inspections for the period of the preceding five years are
located. Where the filing of a complaint leads to an inspection, the
inspection shall include the unit, which is the focus of the complaint and
all common areas.
SUGGESTED CORRECTION/CLARIFICATION:
All inspections, including, but not limited to, inspections performed as
part of an application for a Certification of Occupancy pursuant to Section
90-16 of the City Code, a renewal of a Certificate of Occupancy, or based
upon the filing of a complaint, shall include a visual assessment for
deteriorated paint and bare soil violations PURSUANT TO 90-54B.
COMMENT:
TAKING DUST SAMPLES WHEN NO DETERIORATED PAINT IS PRESENT RUNS CONTRARY TO
FEDERAL GUIDELINES. IT IS UNDERSTOOD THAT THE DUST WIPE IS A MEASURE OF
CLEANLINESS. TO REQUIRE A CLEARANCE FOR A FAILED DUST WIPE IS EXCESSIVE AND
PUNITIVE.
90-56 Remedy for violations.
Following a visual assessment, which results in the citation of a
deteriorated paint violation, the violation may be removed only by one of
the following methods:
(B.) Certification by a lead-based paint inspector or risk assessor that all
lead-based paint in the property has been identified and abated, or
identified and interim controls implemented, and clearance has been achieved
in accordance with standards found at 40 CFR 745.227 (e), regardless of
whether abatement has been achieved or interim controls implemented, and
provided however that the property has been inspected pursuant to those
standards since the deteriorated paint was last detected.
(C.) Certification by the Rochester Housing Authority or other state or
federal supervisory agency which regulates an assisted housing program
stating that the property is in compliance with the inspection and clearance
requirements of the housing
Program or, with respect to federally assisted housing, the requirements of
24 CFR Part 35, provided, however, that with respect to the Federal Housing
Choice Voucher program, the property has been inspected pursuant to those
requirements since the deteriorated paint was last detected.
Where only exterior deteriorated paint violations, other than deteriorated
paint violations on porches, and /or bare soil violations are citied,
clearance may be established through a visual assessment by a City inspector
after reduction measures have been implemented.
CLARIFICATION OR SUGGESTED CORRECTION:
90-56 (B.) It has been stated the intent of council was “ that a city
inspector or other agent would cite the property with a “lead-based paint
violation.” The owner would remedy the violation and a clearance would be
needed to remove the violation.”
The language in Paragraph 90-56 (B) is due to a lack of understanding and
the language does not reflect their intent. 90-56 (B) should state
“following a visual assessment by NET which results in the citation of a
“deteriorated paint violation”, the housing provider shall remedy the
violation and achieve clearance using a lead-based paint inspector or risk
assessor in accordance with standards found at 40 CFR 745.222 (E). Also no
one on City Council wanted to require XRF testing to obtain clearance. Read
literally that is what paragraph (B) now requires.
NOTE:
As the legislation is currently written, EPA standards would be activated
requiring the use of certified Lead-based contractors for any removal of
doors, windows etc.
Intent is the “key” to the activation of EPA standards; however, an
inspection by a lead-based paint inspector identifies the clear intent.
90-56 (C) Certification by the Rochester Housing Authority or other state or
federal supervising agency which regulates an assisted housing program
stating that the property is in compliance with the inspection and clearance
requirements of the housing program or, with respect to federally assisted
housing, the requirements of 24 CFR Part 35, provided, however, that with
respect to the Federal Housing Choice Voucher program, the property has been
inspected pursuant to those requirements since the deteriorated paint was
last detected.
NOTE: Sec. 90-56 (C) requires a clearance exam in Section 8 housing but Sec.
90-56 (B) requires a full risk assessment in non-section 8 housing. This is
impracticable not to mention blatant discrimination against housing
providers who rent to non-section 8 recipients.
THE COALITION TO PREVENT LEAD POSIONING DID NOT BELIEVE NO CHILDREN WERE
POSIONED IN SECTION 8 UNITS. THE CODE SHOULD BE APPLIED UNIFORMALLY TO ALL
RENTAL HOUSING.
Where only exterior deteriorated paint violations, other than deteriorated
paint violations on porches, and /or bare soil violations are citied,
clearance may be established through a visual assessment by a City inspector
after reduction measures have been implemented.
NOTE:
Bare soil clearance should certainly be able to be cleared by a city
inspector. We are sure a city inspector can clearly see bark chips or
planted grass.
90-57 Standards for clearance examination and report.
The remedy available through Section 90-56 (B) shall require that a
clearance examination be completed for a property upon which a deteriorated
paint violation has been cited in accordance with the following
requirements:
90-57 (B) (3) Dust samples shall be wipe samples and shall be taken on
floors, including porches, and where practicable, interior windowsills and
window troughs. Dust samples shall be collected and analyzed in accordance
with 40 CFR 745.227(f) and (g).
NOTE: IT IS STATED THAT PORCHES WILL HAVE A MEASURE FOR DUST SAMPLING.
THERE ARE NO EPA STANDARDS FOR PORCHES. CITY COUNCIL WAS GIVEN INCORRECT
INFORMATION BY THE CPLP AND KATRINA KORMACHER. THE STANDARD THAT WAS
RECOMMENDED BY THEM IS FOR AN INTERRIOR FLOOR AND NOT APPROPRIATE FOR AN
OPEN PORCH DECK. ALTHOUGH ALL THREE PROPOSED CODES HAD PORCH STANDARDS, NOW
THAT HOUSING PROVIDERS ARE AWARE THERE IS NO STANDARD THIS SHOULD BE
REMOVED. THE HEALTH DEAPRTMENT AND MYSELF ADVISED THE CITY COUNCIL OF THIS
ERROR, YET IT REMAINS.
90-57 (D) Clearance Standards:
Where a deteriorated paint violation has been cited, the dust-lead standards
in 40 CFR 745.65(b) shall be met before a Certificate of occupancy may be
issued or a violation removed. With respect to porches, the standard
required for clearance shall be 400 ug/sq.ft, provided however, that if a
porch is found to contain more than 40 ug/sq.ft, the inspector or assessor
shall advise the occupants of the premises that the porch constitutes a
potential lead-based paint hazard that requires continued caution and that
the occupants should read and follow closely the information in the lead
hazard information pamphlet regarding lead safe maintenance practices such
as frequent washing, and that pamphlet shall be provided to the occupants.
NOTE: The City of Rochester should get the advice of a professional risk
assessor that has no connections to housing providers or the Coalition to
Prevent Lead Poisoning. Requiring dust wipes on a porch is not good science
that is why there is no standard for porches. All exterior surfaces are
likely to exceed an interior floor standard. If paint is intact we can only
assume this contamination came from the City streets or is in the
atmosphere. The City and Housing providers need to work together. The City
is concerned about liability just as the housing providers are concerned
about liability. If its not dust from my property than whose dust is it?
Reasonableness should be used and porch dust wipes omitted from this
legislation.
Still many more unanswered questions... here is some of ours
click here
ADDITIONAL LEAD INFORMATION:
Full version of proposal #1 - Composed and written by the CPLP (Coalition to prevent Lead Poisoning). Submitted into City legisaltion by Councilman Tim Mains as proposed Ordinace #20
Full version of Proposal #2- Composed and written by the City administration- submitted into city legislation by Mayor Johnson as proposed
ordinace #21
Full version of Proposal #3 - Composed and written by dedicated volunteer housing providers in conjunction with the Board of Directors of the New York State Coalition of Property Owners and Businesses, Inc. Considered a serious contender to the adoption of a local lead ordinance. Though not actually submitted into legislation, the GEIS report evaluates this proposal equally with the other two.
Read the full FINAL GEIS REPORT (released 12-1-05) - Also known as the " Generic Environmental Impact Study". This is an indebth study that evaluates the environmental consequences of the adoption of a lead poisoning prevention ordinance by the City of Rochester. This document also presents the environmental consequences associated with: human health,housing,population,historic resources,air quality and economy.
If you are short on time, you can review a superbly written analysis that reviews all 3 proposals in response to the Draft GEIS report. Written by a dedicated NYS Coalition member, David Ahl.
What's HUD have to say about all this? - Read their -report- issued in April 2001 called "Analysis of Lead Hazards"
Locally based CGR (Center for Governmental research) issued an extensive report prepared for The Monroe County Dept of Health
(May 2002) called "Lead poisoning among young children in Monroe County - A needs assessment, projection model and next steps". click here