§ 11-08 Exemption from Presumption – Lead Free and Lead Safe.
RCNY § 11-08
(a)A registered owner or registered officer or director of a corporate owner, a registered managing agent of a multiple dwelling erected prior to January first, nineteen hundred sixty, an authorized representative of a governmental agency as approved by the department, or, where title to such multiple dwelling is held by a cooperative housing corporation or the units in such multiple dwelling are owned as condominium units, a representative of the corporation or the condominium board of managers may apply to the department, in writing or by an online portal made available by the department for such an application, for a lead free or a lead safe exemption of the application of the presumption established under Article 14 of the Housing Maintenance Code and 28 RCNY § 11-07 with respect to such multiple dwelling or any part thereof, provided further, that where title to such multiple dwelling is held by a cooperative housing corporation or the units in such multiple dwelling are owned as condominium units, the shareholder of record on the proprietary lease or the owner of record of such condominium unit, as is applicable, may apply to the department for such exemption for his or her individual unit where such presumption is or may become applicable.
(b)(1) Lead Free Exemption. A lead free exemption will be granted where such owner or such other person specified in subdivision (a) of this section submits a written determination made by a lead-based paint inspector or risk assessor certified pursuant to subparts L and Q of 40 C.F.R. Part 745 or successor provisions, and in accordance with 40 C.F.R. § 745.227(b), or Chapter 7 of the department of housing and urban development's Guidelines for Evaluation and Control of Lead-Based Paint Hazards in Housing (2012), that each tested surface and component in each dwelling unit in such multiple dwelling or in the individual dwelling unit, if applying for an exemption of a particular dwelling unit in such multiple dwelling, or in a common area of a multiple dwelling, (i) is free of lead-based paint, 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, or (ii) has been made free of lead-based paint through the complete removal of lead-based paint from any surface or component, or the removal or replacement of any surface or component that may have contained lead-based paint. In applying for a lead free exemption, such owner or other specified person shall confirm in the exemption application that, to the best of his or her knowledge, no surfaces in the dwelling unit, dwelling, or common area for which the exemption is sought that contain paint have been encapsulated or contained. X-ray fluorescent analyzer (XRF) readings submitted at 0.5 milligrams of lead per square centimeter that are inconclusive in accordance with the performance characteristic sheet will be presumed to contain lead-based paint unless the application contains a laboratory analysis of a paint chip sample of the surface from which the 0.5 XRF reading was taken that is negative for lead-based paint.
(2)Lead Safe Exemption. A lead safe exemption will be granted where the owner or such other person specified in subdivision (a) of this section submits a written determination made by a lead-based paint inspector or risk assessor certified pursuant to subparts L and Q of 40 C.F.R. Part 745 or successor provisions, and in accordance with 40 C.F.R. § 745.227(b), or Chapter 7 of the department of housing and urban development's Guidelines for Evaluation and Control of Lead-Based Paint Hazards in Housing (2012), that lead-based paint, 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, on each surface and component (i) in each dwelling unit from which lead-based paint was not fully removed or replaced, or (ii) in each dwelling unit in a property if the exemption is based upon the appropriate sampling combination of components and surfaces in each unit, or (iii) in a common area of a multiple dwelling, has been contained so that each surface tested is negative for such lead-based paint or has been encapsulated. For purposes of this section, the term "contained" shall mean that every surface containing lead-based paint has been temporarily covered, enclosed and sealed with sheetrock or similar durable construction material to eliminate gaps which may allow access to or dispersion of dust or other matter from the underlying surface. XRF readings submitted at 0.5 milligrams of lead per square centimeter that are inconclusive in accordance with the performance characteristic sheet will be presumed to contain lead-based paint unless the application contains a laboratory analysis of a paint chip sample of the surface from which the 0.5 XRF reading was taken that is negative for lead-based paint.
(3)For purposes of an application for an exemption pursuant to paragraphs (1) or (2) of this subdivision, where surfaces or components within the dwelling unit can be demonstrated by the owner, to the satisfaction of the department, to have a common construction and painting history, the lead-based paint inspector or risk assessor performing such testing may test a sample of the surfaces and components having such common construction and painting history within the dwelling unit or common area to make such determination, in accordance with 40 C.F.R. § 745.227(b), or Chapter 7 of the department of housing and urban development's Guidelines for Evaluation and Control of Lead-Based Paint Hazards in Housing (2012) Lead Based Paint Inspection, V. Inspections in Multi-family Housing, Table 7-3, Number of Units to be tested in Multi-family Building or Developments. In the absence of such documentation by the owner, or visual inspection by the certified individual, the certified individual must test each dwelling unit in order to provide the required certification. In addition, a list of any building components that would reasonably be expected to contain paint that have not been tested, and the reason that such building component has not been tested, must be included in the exemption application submission, along with a sketch or sketches of the rooms tested that is consistent with the XRF report of testing locations.
(c)For any surface within a dwelling unit or dwelling or common area where encapsulation or containment has been applied to a surface for the purpose of qualifying such dwelling unit or dwelling or common area for a lead safe exemption under this section, in addition to the information required to be provided to the department pursuant to subdivision (d) of this section, such application shall include: the location of each surface that has been encapsulated or contained; the name of the encapsulant that has been used, which adheres to the standards for encapsulants issued by the American Society for Testing and Materials (ASTM International) or is approved by the New York state department of health or by another federal or state agency or jurisdiction which the department has designated as acceptable; and a statement by the person who applied such encapsulant, who shall be certified to perform abatement pursuant to 40 C.F.R. part 745 or successor provisions, that it has been applied in accordance with the manufacturer's instructions. The surfaces to which such encapsulants are applied or on which containments are used shall be subject to periodic monitoring by the owner for a period of 20 years or the life of the surface or component, whichever is longer, to ensure that they remain undamaged and intact, provided further, that the owner of such dwelling unit or dwelling shall submit to the department and comply with a plan for periodic monitoring of such encapsulated or contained surfaces in accordance with Chapters 12 and 13 of the department of housing and urban development's Guidelines for Evaluation and Control of Lead-Based Paint Hazards in Housing (2012), and shall keep records of monitoring of such encapsulated and contained surfaces for a period of at least ten years which shall be produced by the owner upon request by the department.
(d)In addition to the information required by subdivision (c) of this section, where applicable, an application for a lead free or lead safe exemption shall include: the address of the multiple dwelling; the number of units; the dates, if known, when substantial alterations, where applicable, were made to the dwelling unit(s) and a description of the work performed; the date of the inspection resulting in the determination that the dwelling unit or multiple dwelling, common area or other part thereof is lead free or lead safe; and a copy of the inspection report. Such inspection report shall contain a description of the surfaces tested and the results of such testing. Such application shall also include a copy of the certificate of training of the person who performed such testing. The department may also require additional information and affidavits to be submitted with the application for exemption as provided in such application form.
(e)(1) Upon submission of a complete application for exemption to the department, such multiple dwelling or common area or other part thereof, or dwelling unit, the department shall review such application and notify the applicant whether the multiple dwelling, or common area or other part thereof, or dwelling unit, has been granted a lead safe or lead free exemption from application of the presumption established under Article 14 of the Housing Maintenance Code and 28 RCNY § 11-07.
(ii)The department may revoke a lead safe or lead free exemption upon failure by an owner to provide records related to encapsulation or containment monitoring as requested by the Department.
(4)For exemptions that were approved prior to December 1, 2021 pursuant to the definition of lead-based paint in paragraph (a) of subdivision (7) of § 27-2056.2 of Article 14 of the Housing Maintenance Code and subdivision (t)(1) of 28 RCNY § 11-01, a lead free or lead safe exemption shall be deemed revoked upon the turnover of a dwelling unit on or after December 1, 2021. Owners may continue to submit applications for exemptions using such definition of lead-based paint, provided that (i) the testing for lead-based paint was conducted prior to December 1, 2021, (ii) the complete application for exemption is submitted to the department on or before March 1, 2022 and (iii) there was or will be no turnover of the unit between December 1, 2021 and March 1, 2022. Exemptions that are granted using such definition of lead-based paint shall be deemed revoked upon the turnover of a dwelling unit after December 1, 2021.
(5)The department shall provide written notification to the owner upon making a determination to revoke a lead safe or lead free exemption, and such multiple dwelling or part thereof, or dwelling unit shall be subject to all applicable provisions of Article 14 of the Housing Maintenance Code.
(6)Absent fraud, mistake or misrepresentation in the initial application, an owner may reapply for the lead safe exemption by showing that the surface for which the lead-based paint was no longer contained or encapsulated has been repaired and resealed, and that the surfaces found to test positive for the presence of lead based paint subsequent to revocation of the lead safe exemption no longer test positive for such paint, where applicable, or have been properly encapsulated or contained. Alternatively, such owner may submit an application for a lead free exemption. The application must include testing to show that the surfaces found to test positive for the presence of lead-based paint subsequent to revocation of the lead free exemption no longer test positive for lead-based paint.
(f)(1) On or after December 1, 2021, an owner who had received any exemption prior to such date must notify the department whenever an exempted unit becomes vacant. The exemption from the presumption for such vacant unit shall be deemed revoked on the date of the vacancy, regardless of whether an owner has failed to provide the required notification, and such unit shall be subject to all of the requirements of law relating to units that are not exempt from the presumption of lead-based paint. The owner of such unit may apply for a new exemption by submitting an application as provided in this section, and the testing required pursuant to this section shall be performed using the definition of lead-based paint in effect on and after December 1, 2021.
