§ 11-07 Presumption.
RCNY § 11-07
(a)In any multiple dwelling erected prior to January first, nineteen hundred sixty, it shall be presumed that the paint or other similar surface-coating material in any dwelling unit where a child of applicable age resides or in the common areas of such multiple dwelling is lead-based paint.
(b)For purposes of the definition of lead-based paint set forth in § 27-2056.2(7)(b) of Article 14 of the Housing Maintenance Code and subdivision (t)(2) of 28 RCNY § 11-01, if such paint or other similar surface-coating material in a multiple dwelling erected prior to January 1, 1960 where a child of applicable age resides or in the common areas of such multiple dwelling, has not been tested by an x-ray fluorescence analyzer (XRF) and measured to be negative for lead-based paint in accordance with the performance characteristic sheet (PCS), or has been tested by an XRF and such test result is inconclusive in accordance with such PCS, and a laboratory analysis of a paint chip sample has not been performed, such paint is lead-based paint.
(c)(1) The presumption established in this section may only be rebutted as provided in paragraph (2) of this subdivision by the registered owner, registered officer or director of a corporate owner or by a registered managing agent of such multiple dwelling by submitting to the department: (i) a sworn written statement, supported by XRF lead-based paint testing results, including a description of the testing methodology and manufacturer and model of instrument used to perform such testing or laboratory tests of paint chip samples; (ii) a sworn written statement by the person who performed the testing or paint chip sampling if performed by an employee or agent of the owner which shall include a copy of the certificate of training as a certified lead-based paint inspector or risk assessor as provided in subdivision (d) of this section; (iii) a copy of the inspection report provided by the person who performed the testing or paint chip sampling which shall include a description of the surfaces in each room where such testing or paint chip sampling was performed; and (iv) a copy of the results of such testing or such laboratory tests of paint chip samples performed by an independent laboratory certified by the state of New York where such paint chip sampling has been performed.
(2)Such written statement and all supporting documentation shall be submitted to the department not later than the date set for correction in the notice of violation in accordance with paragraph (1) of this subdivision, and may only be submitted to rebut the presumption where the department has not performed an XRF test prior to issuing such violation or where the department has performed an XRF test with a result classified as inconclusive for lead-based paint in accordance with the PCS.
(3)The department shall notify the registered owner, registered officer or director of a corporate owner or registered managing agent of such multiple dwelling of its determination in writing.
(d)Where x-ray fluorescence (XRF) testing or laboratory sampling is performed to rebut the presumption established in this section, the performance of such testing or sampling shall be in accordance with the applicable definition for lead-based paint established in 28 RCNY § 11-01(t) and § 27-2056.2(7) of Article 14 of the Housing Maintenance Code. Laboratory analysis for 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 as provided in such applicable lead-based paint definition. 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 provisions.
(e)Testing performed to rebut the presumption may only be performed 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. (Amended City Record 11/8/2019, eff. 12/8/2019; amended City Record 10/13/2021, eff. 12/1/2021)
