D.C. Mun. Regs. tit. 20, r. 20-3318

Current through Register 71, No. 45, November 7, 2024

Rule 20-3318 - NOTICE OF VIOLATION OR NOTICE OF INFRACTION, AND ORDER TO ELIMINATE LEAD-BASED PAINT HAZARDS

3318.1

DDOE may take steps to determine the existence of a lead-based paint hazard whenever DDOE has reason to believe that there is a risk that a lead-based paint hazard is present in a dwelling unit, an accessible common area of a multifamily property, or a child-occupied facility such as a day care center or kindergarten program that is regularly attended by children under the age of six (6) years constructed prior to 1978.

3318.2

To determine whether a lead-based paint hazard is present, DDOE's investigation of a dwelling unit, accessible common area, or a child-occupied facility pursuant to § 3318.1 shall be followed by a report to the owner and the tenant, and may include:

(a) A visual inspection; and

(b) Any other form of lead hazard evaluation.

3318.3

If a lead-based paint hazard is identified, DDOE may issue a written Notice of Violation or Notice of Infraction, and an Order to Eliminate Lead-Based Paint Hazards (collectively "Notice and Order"), to the property owner or to any other person. A Notice and Order shall:

(a) Identify the violation;

(b) Specify the measures needed to correct the violation, including the time for compliance;

(c) Order any other action necessary to protect the health and safety of the occupants, including relocation pursuant to § 3319, if necessary;

(d) Include an invoice charging the recipient of the Notice and Order for the costs associated with the risk assessment that resulted in the identification of lead-based paint hazards; and

(e) In the case of a Notice of Infraction, include an assessment of a fine for each violation being cited.

3318.4

An owner, individual, firm, or business entity may object to a notice or order by requesting a hearing within fifteen (15) calendar days of service. If service is by first class mail, a request for a hearing may be filed within twenty (20) days of service. If specific instructions are not on the notice or order, the owner, individual, firm, or entity shall file a written request for a hearing, including the grounds for the objection, in accordance with Rules of Practice and Procedure of the Office of Administrative Hearings set forth in Title 1 DCMR Chapter 28.

3318.5

If DDOE orders the owner to eliminate a hazard by lead-based paint hazard abatement, the owner shall:

(a) Comply with the DDOE Order within thirty (30) calendar days of its receipt, in conformance with D.C. Official Code § 8-231.15(a) unless extended for good cause pursuant to § 3318.9;

(b) Obtain a permit pursuant to § 3316 before beginning abatement work;

(c) Ensure that each person performing an abatement activity:

(1) Is certified as required by this chapter; and

(2) Adheres to the lead-safe work practice requirements under § 3302 while performing the work; and

(d) Submit a copy of the clearance report to DDOE and, in the case of rental housing, a copy to the tenant, that:

(1) Has been prepared by a risk assessor, subject to the conditions in D.C. Official Code § 8-231.11(f)(1);

(2) Is submitted to DDOE and to the tenant within seven (7) business days of its issuance by said risk assessor; and

(3) Complies with the clearance report requirements established under § 3318.7.

3318.6

If DDOE allows the owner to apply interim controls because abatement is not deemed essential to eliminate a hazard given the particular circumstances, the owner shall:

(a) Comply with the DDOE Order within thirty (30) calendar days of its receipt, in conformance with D.C. Official Code § 8-231.15(a), unless extended for good cause pursuant to § 3318.9;

(b) Ensure that each person working to eliminate the lead-based paint hazard:

(1) Is certified as required by this chapter; or

(2) Has been trained in the lead-safe work practices established under § 3302; and

(3) Adheres to those lead-safe work practices while performing the work;

(c) Comply with the rules for application of interim controls under § 3315; and

(d) Submit a clearance report to DDOE, and in the case of rental housing, to the tenant, that:

(1) Has been prepared by a risk assessor, subject to the conditions in D.C. Official Code § 8-231.11(f)(1), except as otherwise provided in § 3315.5;

(2) Is submitted to DDOE and to any affected tenant within seven (7) business days of its issuance by the individual who signed the report; and

(3) Complies with the clearance report requirements under § 3318.7 and, if applicable, under § 3315.4.

3318.7

If DDOE has issued an Order to Eliminate Lead-Based Paint Hazards, the clearance examination shall be performed no sooner than one (1) hour after the completion of lead-based paint hazard control activities, and no later than three (3) business days after completion, and shall be performed as follows:

(a) The clearance examination shall include the following:

(1) A visual inspection of each work area to ensure paint is in an intact condition and to ensure any underlying condition contributing to paint failure that was identified in the Notice of Violation or of Infraction has been repaired;

(2) Photos to document that each work area where non-intact paint conditions had been identified in the Notice and Order has been made intact;

(3) A visual inspection of each work area to ensure there is no visible dust or debris;

(4) Dust sampling in each room that contains a work area, and if fewer than four (4) rooms contain a work area, in additional rooms until at least four (4) rooms are sampled, that shall include either a child's bedroom, a children's play room, a living room, the bathroom used by the child, or the kitchen, on the following surfaces in each sampled room:

(A) A floor sample; and

(B) A window sill or a window well sample from rooms that contain a window;

(5) A floor dust sample within two feet (2 ft.) of the unit's front door and a floor dust sample within two feet (2 ft.) of the unit's rear door;

(6) Whenever a work area is located on the exterior of a property, and whenever a work area involves a window or a door that opens to the exterior of a property, a dust sample on any concrete or other rough exterior horizontal surface within the work area(s);

(7) If in a multifamily property, additional floor dust samples in the common area outside the unit within two feet (2 ft.) of the front door and within two feet (2 ft.) of the rear door of each unit where lead-based paint hazard elimination work occurred, provided the rear door does not open up to the property exterior; and

(8) Soil sampling if lead-contaminated bare soil was identified, or if exterior work to eliminate a lead-based paint hazard was performed within ten feet (10 ft.) of a bare soil area, provided such sampling occurs on the same property;

(b) Before proceeding with the clearance examination, the risk assessor performing the clearance examination shall review the following documents to establish the extent and scope of the lead hazard elimination work, and any other pertinent requirements:

(1) Abatement Permit;

(2) Lead-based Paint Inspection Survey or Risk Assessment Report;

(3) Project Scope of Work; and

(4) Notice of Violation or of Infraction, and Order to Eliminate Lead- Based Paint Hazards;

(c) Notice to DDOE that a dust test will be performed as part of a clearance examination pursuant to § 3318.5 shall be provided by fax, in person, or via the DDOE website, on a DDOE-specified form, submitted to DDOE at least twenty-four hours (24) prior to conducting the dust test, or as soon as practicable, whichever is sooner;

(d) The results of each clearance examination shall be transmitted to the property owner by the individual reporting these results as soon as practicable, and no later than seven (7) business days after completion of the clearance examination;

(e) If the property does not pass the clearance examination, the owner shall address the condition causing the failure until the property successfully passes clearance;

(f) All environmental samples taken during a clearance examination shall be analyzed by an appropriately accredited lab and shall include as a quality assurance measure one (1) blank sample for lab analysis for each unit or property subject to a clearance examination; and

(g) Each clearance report shall include:

(1) A list of the documents reviewed pursuant to § 3318.7(b);

(2) A room by room narrative that provides details about what specific steps were taken during the clearance examination, and the result of each such step;

(3) Photos taken pursuant to § 3318.7(a)(2), with a caption for each photo, describing the location depicted;

(4) Analytical result for each environmental sample submitted for lab analysis, including any blank or spike sample submitted, including the lead concentration in the prepared spike;

(5) A chain of custody sheet that lists each environmental sample submitted to a lab for analysis, along with the date and time of day the samples were taken;

(6) A floor plan of the unit or property that displays where each environmental sample was taken, including the specific location of any soil sampling;

(7) The reason or reasons why the unit or property did not pass a previous clearance examination, if applicable;

(8) The date of the clearance examination and the time it was performed;

(9) The signature of the individual who performed the clearance examination, along with a copy of his or her current DDOE-issued certification card; and

(10) The date the clearance report was sent or provided to the property owner.

3318.8

A clearance examination following elimination of a lead-based paint hazard ordered by the District, or after such work is performed in response to a child with an elevated blood lead level, shall not be conducted by:

(a) A risk assessor or lead-based paint inspector who is related to the owner or any tenant by blood or marriage;

(b) A risk assessor or lead-based paint inspector who is an employee or owner of the abatement firm performing the work;

(c) A risk assessor or lead-based paint inspector who is an employee or owner of an entity in which the abatement firm has a financial interest; or

(d) A dust sampling technician, except as provided for under § 3315.5.

3318.9

The deadline specified in §§ 3318.5 and 3318.6 may be extended by DDOE, in increments of a maximum of thirty (30) days, provided the owner:

(a) Requests in writing an extension from DDOE and submits such written request no fewer than five (5) calendar days prior to the existing deadline for compliance;

(b) Explains in the written deadline extension request the reason why more time is needed; and

(c) Provides in the written deadline extension request a summary of steps taken to date, sufficient to demonstrate to the satisfaction of DDOE that:

(1) The owner intends in good faith to comply with the Order; and

(2) Providing more time to the owner to comply with the Order is not likely to endanger the health and safety of any occupants of the property subject to said Order.

D.C. Mun. Regs. tit. 20, r. 20-3318

Final Rulemaking published at 60 DCR 10909 (July 26, 2013)

Authority: District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.01 et seq. (2008 Repl. & 2012 Supp.)), the Childhood Lead Screening Amendment Act of 2006, effective March 14, 2007 (D.C. Law 16-265; D.C. Official Code § 7-871.03 (2008 Repl. & 2012 Supp.)), the Transfer of Lead Poison Prevention Program to the District Department of the Environment Amendment Act of 2008, effective August 16, 2008 (D.C. Law 17-219; 55 DCR 7602 (July 18, 2008)), the Lead-Hazard Prevention and Elimination Act of 2008, effective March 31, 2009 (D.C. Law 17-381; D.C. Official Code § 8-231.01 et seq. (2012 Supp.)), Mayor's Order 2009-113, dated June 18, 2009, and the Lead Hazard Prevention and Elimination Amendment Act of 2010 ("2011 Amendments"), effective March 31, 2011 (D.C. Law 18-348; 58 DCR 717 (January 28, 2011)).