Rochester, N.Y., Code of Ordinances ch. 90 § 90-57

The remedy available through § 90-56B and D and the dust sampling required by § 90-55 shall require the following certification of clearance standards: A. Qualified personnel. Certification of clearance shall be issued by: (1) A certified risk assessor; or (2) A certified lead-based paint inspector. B. Required activities. (1) An examination shall include a full visual assessment, dust sampling, submission of samples for analysis for lead, interpretation of sampling results, and preparation of a report. Examinations shall be performed in all dwelling units in accordance with this section. (2) A full visual assessment of every area of the subject dwelling unit shall be performed to determine if deteriorated paint and/or visible amounts of dust, debris, paint chips or other residue are present. Interior painted surfaces shall be examined for the presence of deteriorated paint. If deteriorated paint and visible dust, debris, paint chips or residue are present, they must be eliminated prior to the continuation of the clearance examination. (3) Dust samples shall be wipe samples and shall be taken on floors, including open porches, and interior windowsills and window troughs that have a paint history. Dust samples shall be collected and analyzed in accordance with this section. (a) Dust samples shall be taken from each of no more than four rooms. The selection of rooms to be tested, where applicable, shall include no less than one bedroom and the living room. At least one wipe sample shall be taken from a window trough or a windowsill with a paint history, if present, and one from a floor in each room. Where there are less than four rooms, then all rooms shall be sampled. (b) Dust samples shall be collected by persons authorized and/or certified by the EPA as a lead inspector, risk assessor, dust wipe technician, or lead sampling technician whose approval to conduct such dust wipe tests in the City is not subject to suspension or revocation after a finding of nonresponsibility pursuant to § 90-57I . (c) The method for collecting dust samples shall include: [1] Laying out the sample area by using a template or tape to outline the area; [2] Label each tube with its own identification number to be recorded on the sample collection form; [3] Put on clean gloves before taking each sample; do not touch anything other than the wipe after putting on the gloves; [4] Use an unused wipe to sample the entire area inside the template or tape as follows: [a] Starting in the upper corner of the sample area, use a side-to-side motion, wiping the entire area, pressing firmly with your fingers; [b] Fold the wipe sample in half, dirty side in; [c] With the clean side of the sample and starting at the upper corner, use a top-to-bottom motion, wiping the entire area, pressing firmly with your fingers; [d] Fold the wipe sample in half again, dirty side in; [e] With the clean side of the sample, wipe around the entire perimeter, cleaning the corners, fold the sample; and [f] Place the folded wipe sample in the tube. [5] Write down the measurements of the sample area on the collection form; [6] Clean the sampling equipment after each wipe sample is taken; [7] Forward wipe samples to an authorized laboratory. (d) Dust samples shall be analyzed by a laboratory recognized by the EPA pursuant to Section 405(b) of TSCA as being capable of performing analysis for lead compounds in dust samples. (e) Upon reinspection and a visual clearance, a dust wipe sample shall be taken on all open porch floors that have been cited for an exterior deteriorated paint violation. (f) Dust wipe samples taken on open porch floors shall not be taken where inclement conditions make it difficult to secure a sample. Where there is snow, ice or entirely wet floor surface conditions, the dust wipe sample shall be rescheduled. C. Report. The clearance examiner shall ensure that an examination report is prepared that provides documentation of the examination. (1) The report shall include the following information: (a) The address of the residential property and, if only part of a multifamily property is affected, the specific dwelling units and common areas affected; (b) The date(s) of the examination; (c) The name, address, and signature of each person performing the examination, including their EPA certification number; (d) The results of the visual assessment for the presence of deteriorated paint and visible dust, debris, residue or paint chips; (e) The results of the analysis of dust samples, in ug per square foot, by location of sample; and (f) The name and address of each laboratory that conducted the analysis of the dust samples, including the identification number for each such laboratory recognized by the EPA under Section 405(b) of the Toxic Substances Control Act [15 U.S.C. § 2685(b) ]. D. Clearance standards. Where dust sampling is required by § 90-55 , where an interior deteriorated paint or a dust-lead hazard violation has been cited in a dwelling unit or where deteriorated paint violations on an open porch are cited, the following dust-lead standards shall be met before a certificate of occupancy may be issued or a violation removed. (1) Dust wipe sample results shall be less than the post-abatement clearance levels specified in the United States Environmental Protection Agency's Lead-Based Paint Poisoning Prevention regulation at 40 CFR 745.227(e)(8) , regardless of whether the sampling is being performed for purposes of post-abatement clearance. (2) The results of dust wipe samples for open porch floors as required by § 90-57B(3) shall be less than 40 ug/ft 2 . (3) Where dust sample results are greater than or equal to the levels above, additional dust wipe samples shall be taken in the subject areas until all said areas are found to be below the listed thresholds. E. Validity of wipe test results. For the purposes of meeting the requirement in § 90-55 , the results of all successful wipe tests shall be valid for a period of three years, unless a subsequent inspection of the dwelling unit identifies an interior deteriorated paint violation, which would immediately cause the previous wipe tests results to be invalid. F. Requirement to avoid conflict of interest regarding clearance inspection. All examinations shall be performed by persons or entities independent of those performing hazard reduction or maintenance activities. G. This section shall not apply to the situations set forth in § 90-56C . H. As part of the Department's efforts to ensure consistency and compliance with the required clearance standards, random audits will be performed on all third-party lead clearance providers. Nonrandom audits may also be performed based on a reasonable suspicion that a third-party lead clearance provider is not providing proper tests, including, but not limited to, complaints received about the provider or about a specific property inspected by the provider. If the results indicate noncompliance with these standards, the Director may take whatever action is necessary as set forth in Subsection I of this section. I. Rejection of clearance examination report/nonresponsibility of issuer. (1) The Director, or the Director's designee, is authorized to reject a lead clearance examination report that does not meet the requirements set forth herein or that is found after an inspection to not substantially represent the conditions present at the premises for which the report was prepared. The reasons for the rejection shall be set forth in writing to the issuer of the report and to the owner of the property to which the report pertains. (2) No lead clearance examination report shall be accepted from an issuer who does not meet the qualifications set forth herein or who has been found by the Director or the Director's designee to be nonresponsible. (3) The Director shall inform an issuer in writing of a nonresponsibility determination and the reasons therefor. (4) Upon making a nonresponsibility determination, the Director may bar the issuer and affiliated organizations, as further set forth herein, from submitting lead clearance reports to the City for a period of not to exceed three years. If a corporation is found to be a nonresponsible issuer, that finding may be applied to a parent, affiliate or subsidiary corporation, if the Director finds that an officer, director or person directly or indirectly controlling 10% or more of the stock of the corporation found to be nonresponsible is an officer, director or person directly or indirectly controlling 10% or more of the stock of the parent, affiliate or subsidiary corporation. If an unincorporated association is found to be nonresponsible, that finding may be extended to other related associations upon a finding by the Director that the related associations have substantially the same ownership, management or operating personnel. (5) Guidelines for nonresponsibility determinations. In determining the nonresponsibility of an issuer, the Director shall consider: (a) The record of performance of the issuer, including but not limited to lack of adequate expertise, prior experience with lead clearance examinations or lack of ability to perform the clearances in a timely, competent and acceptable manner. Evidence of such a lack of ability to perform may include, but shall not be limited to, evidence of suspension or revocation for cause of any professional license of any director or officer or any holder of 5% or more of the issuer's stock or equity; suspension or debarment by the state or federal government; or a history of lead clearance examinations that do not meet federal, state or City requirements. (b) The record of integrity of the issuer. (c) The availability to the issuer of the necessary organization, experience, operational controls and technical skills, and the necessary technical equipment and facilities required for performance of the clearance examinations. (d) The compliance by the issuer with any special or general standards of responsibility. (e) The compliance by the issuer with standards which may be established by the Director pursuant to rule or regulation. (f) Criminal conduct in connection with lead clearance examinations, government contracts or business activities. Evidence of such conduct may include a judgment of conviction or information obtained as a result of a formal grant of immunity in connection with a criminal prosecution of the issuer, any director or officer, or holder of 5% or more of the shares or equity of the issuer or any affiliate of the issuer. (g) Violations of the Labor Law . (h) Violations of the Environmental Conservation Law or other federal or state environmental statutes or regulations. (i) Any other cause of so serious or compelling a nature that it raises questions about the responsibility of an issuer, including, but not limited to, submission to the City of a false or misleading statement in connection with a lead clearance examination. (j) In addition to the factors specified above, the Director may also give due consideration to any other factors considered to bear upon issuer responsibility, including, but not limited to, any mitigating factors brought to the City's attention by the issuer. (6) The Director may develop rules and regulations to implement these guidelines and may request a sworn statement of issuer qualifications to gather the necessary information set forth herein. The Director may use the information contained in the response to the sworn statement in making a determination of issuer nonresponsibility. (7) A nonresponsibility determination by the Director may be appealed by the issuer to the Commissioner by delivery to the Commissioner of a written notice of appeal within 10 days after receipt of the determination of the Director. The Commissioner shall offer the issuer an opportunity to be heard, at which a hearing officer appointed by the Commissioner who is not a City employee shall preside. Such hearing shall be scheduled as soon as possible after a request. The issuer shall be permitted to be represented by counsel, to submit evidence and summon witnesses on his or her behalf and to inspect documents and cross-examine opposing witnesses. Compliance with the technical rules of evidence shall not be required. The hearing officer shall make a recommendation to the Commissioner. The Commissioner shall make the final determination in writing, based upon evidence produced at the hearing. In the final determination, the Commissioner may accept, reject or modify the determination and/or penalty imposed by the Director. The determination of the Commissioner shall be the final determination of the City and shall be subject to review pursuant to Article 78 of the Civil Practice Law and Rules.