Rochester Makes Lead History
Note from Michael Hanley, Empire Justice CenterThe Rochester City Lead Paint ordinance that was introduced on
December 1, (with the changes approved by the Council's Housing
Committee on December 15) was approved NINE to ZERO on Tuesday Decemb
er 20th-- after the adoption of three crucial amendments supported
by the Coalition to Prevent Lead Poisoning.
The three key amendments were introduced by Councilmen Mains, McFadden,
and Curran. The Coalition had worked hard to help them introduce
these important changes, and everyone's work paid off. Tim Mains
pushed relentlessly for these changes -- and his tenacity paid off.
Tim can justifiably count this victory as a major accomplishment,
adding to his substantial Council legacy. We owe Tim, Adam and Brian
a tremendous debt of gratitude.
The changes :
First -- the Big Victory: Dust Wipes in the high-risk area! (9 to
0).
Dust-wipes will be included in the initial investigation stage for
all units in the high risk area that pass a visual examination for
deteriorated paint.. The definition for the high risk area requires
that it include a designation of census blocks that cumulatively
would have included at least 90% of the housing units that were
subject to an EBL inspection in the preceding five year period.
This area includes approximately 24,000 of the City's 53, 000 rental
units. Many Coalition members had fought hard over the last few
weeks for this amendment, which was a key element of the "Korfmacher
proposal". A broad, representative, and authoritative cross-section
of the community came out forcefully and eloquently in the "speak-out"
session before the Council meeting to demand dust-wipes. They simply
could not be ignored.
Still, it didn't look too good at first. An initial amendment introduced
by Adam that would have required the dust-wipes to be used city-wide,
was rejected by a vote of 6 to 3. But, then Brian Curran offered
the dust-wipe amendment that included the restriction to the high-risk
areas, and Tim made a heartfelt and persuasive plea to his colleagues
on the Council. Council President Lois Giess, much to her credit,
then said she could support the proposal. We never predicted this
outcome in our planning sessions --the amendment passed by a 9 to
0 vote!
Second -- Training for Lead-Safe Work Practices (8 to 1).
Training will be required for lead-safe work practices for anyone
who will be disturbing lead paint (other than the federal de minimis
levels) in units subject to the Certificate of Occupancy requirement.
There is one proviso: the training obligation is only applicable
so long as training is available at free or nominal cost. Tim, however,
demonstrated that this should not be a barrier by providing the
list of the several trainings already scheduled by the County over
the next few months.
Third -- An overriding obligation to maintain property free of lead-based
paint hazards (9 to 0).
This may seem like a minor point, but just to make sure that the
overall purpose of the ordinance doesn't get lost in the details
or mired in the implementation efforts, Tim offered a final amendment
that simply states that owners of rental units subject to a Certificate
of Occupancy have an obligation to maintain their units free of
"lead-based paint hazards." This is a term of art, in
that the term "lead-based paint hazard" is included in
the definition section of the ordinance, adopting the language adopted
by the both HUD and the EPA.
A lead-based paint hazard includes 1) paint-lead hazards, 2) soil-lead
hazards, and 3) dust-lead hazards. All of these terms are defined
separately in the ordinance using the specific federal standards.
Moreover, the lead-based paint hazard definition specifically includes
paint-lead hazards that include both "deteriorated" and
"intact" paint, so it includes paint hazards arising from
friction, impact, and chewable surfaces. The city is not obligated
to look for all of these types of hazards in their inspections,
but if evidence is presented of one of the other types of hazards
tenants should be able to enforce the ordinance to have their unit
made lead safe. In January 2006 a new state law goes into effect
and the City Court will have new powers to order repairs for code
violations, so this is an important provision that tenants will
be able to raise to have their housing made lead-safe.
Don't forget, the bill already had some very good provisions in
it, including the presumption that any paint in buildings constructed
before 1978 is lead paint. Notices of work that will disturb lead
paint must be provided, lead-safe work practices must be used, and
tenants must be re-located when necessary for their safety.
The ordinance also has important protections against retaliation
so that tenants don't need to worry as much about eviction if they
ask the city to do an inspection.
AND -- A TREMENDOUS VICTORY ON TARGETING.
In an accompanying resolution, the Council set up a monitoring system
that will assure that all of the units in the high risk area will
be reached by the end of the third year. That means that Rochester
has come up with a pragmatic approach -- that other cities can follow
-- that will help us to nearly eliminate lead poisoning by 2010
! (This is another key element of the Korfmacher proposal).
Here's the system: The city will do its lead inspections on the
normal Certificate of Occupancy renewals and with "on demand"
inspection to respond to particular complaints. Additionally, the
County will be doing inspections for the families that it provides
financial assistance to. So, over the first few years, many of the
highest risk units will be reached without any other geographic
targeting. But to make sure that we get to ALL of the units in the
high risk area as soon as possible, a monitoring system will be
set up so that ANY units not reached by the end of the second year
will be scheduled for inspections in the third year. Progress in
getting to those units will be monitored and reported.
The Coalition to Prevent Lead Paint Poisoning has fought hard for
several years now for this victory and, since Mayor-elect Duffy
has already committed to make sure the ordinance will be implemented
aggressively and effectively Rochester is poised to become a model
for rest if the state (and perhaps the nation) in getting to the
goal of eliminating lead poisoning by 2010. We can now look forward
to helping secure the passage in 2006 of state legislation proposed
by Assemblyman Gantt and Senator Robach (backed by both the National
Paint and Coatings Association and the NY Trial Lawyers Association)
that will provide financial assistance to property owners who make
their housing lead-safe.