Lead Poisoning Prevention (216-RICR-50-15-3)
216-RICR-50-15-3 ACTIVE RULE
3.1Authority and Purpose
A.These Regulations are promulgated pursuant to the authority conferred under R.I. Gen. Laws Chapter 23-1, 23-24.6, and 42-128.1, and 40 C.F.R Part 745 for the purpose of establishing a comprehensive program to protect public health by reducing exposure to environmental lead and preventing childhood lead poisoning.
B.In 1999, the United States Environmental Protection Agency (EPA) delegated authority to the Department to enforce the provisions of the Federal Lead-Based Paint Program (40 C.F.R. Part 745). In 2010, EPA delegated authority to the Department to enforce the provisions of the Federal Lead Renovation, Repair, and Painting Program (40 C.F.R. Part 745 Subpart E).
C.The following Regulations also provide procedures related to this Part:
7.Lead Training, Certification, and Licensing (Part 11 of this Subchapter)
8.Lead Inspections, Testing Methods and Standards (Part 5 of this Subchapter)
9.Lead Safe Work Practices (Part 12 of this Subchapter)
A.The purpose of this Part is to:
1.Implement and enforce requirements of the Act and R.I. Gen. Laws Chapters 42-128.1, Lead Poisoning Prevention Act of 1991 and Rhode Island Housing Resources Act of 1998.
2.Implement and enforce federally delegated provisions, responsibilities, and requirements of the US Environmental Protection Agency (EPA) in § 3.1.1(B) of this Part;
3.Protect the public health and public interest by establishing Rules and Regulations to minimize public, occupant, and worker exposure to environmental lead and prevent childhood lead poisoning; and
4.Establish programs for screening children under the age of six (6) who are at risk for lead poisoning;
A.The following persons are subject to this Part:
a.Primary care physicians, pediatricians, or other health care providers licensed in Rhode Island;
b.Primary care physicians, pediatricians, or other health care providers of children residing in Rhode Island;
c.Rhode Island health care facilities, including but not limited to, hospitals, clinics and health maintenance organizations;
d.Health care programs funded in whole or in part with State funds or administered by any State agency and having child health components, including, but not limited to: Special Supplemental Food Program for Women, Infants & Children (WIC); Preventive Pediatric Services Program; Medicaid; General Public Assistance; and RIte Care.
2.Administrators of Schools and Child Care Facilities
a.Public and private kindergartens, preschools, early childhood education programs, child day care centers, or other child care programs shall require written verification of compliance with the blood lead screening requirements in this Section as a condition for initial enrollment.
b.The written verification must be completed by the child's health care provider, or other individual who conducted the screening, on forms approved by the Department.
c.The blood lead screening requirements in § 3.4 of this Part do not apply if a child’s parent signs a sworn statement indicating that blood lead screening is contrary to his or her religious tenets and practices.
3.Sellers and Lessors
a.The following persons are subject to the real estate notification and disclosure requirements in § 3.8 of this Part:
(1)All persons who sell or lease target housing;
(2)All persons who act as an agent for a seller or lessor of target housing; and
(3)Mortgagees selling target housing through a foreclosure process.
4.Exemptions to Real Estate Notification and Disclosure
a.Sellers, lessors, and their agents are exempt from the real estate notification and disclosure requirements in § 3.5 of this Part for the following transactions:
(1)Sales and leases of any residential dwelling constructed after January 1, 1978;
(2)Sales and leases of any residential premises which meet the lead-safe standards in § 5.8 of this Subchapter, provided that a Certification of Lead-Free Status or Full Lead-Safe Certificate (Form PBLC-21) is provided to the purchaser(s) or lessee(s), as applicable;
(3)Renewals of existing leases in which the lessor has previously complied with all requirements of this Section, if proof of disclosure is retained for at least three (3) years or the term of tenancy, whichever period is longer;
(4)Sales and leases of zero (0) bedroom dwelling units or housing for the elderly or persons with disabilities in which no child resides; and
(5)Short-term leases of one hundred (100) days or less where no lease renewal or extension can occur.
5.Property Owners and Managers
a.The following persons are subject to the owner responsibilities in § 3.2.4 of this Part:
(1)Owners of target housing;
(2)Owners of regulated facilities; and
(3)Owners in receipt of any notice or order from the Department.
6.Persons who offer or conduct any activity in Rhode Island that will disturb lead-based paint for any reason at a regulated facility or for compensation at target housing require a license and/or certification, as applicable, in accordance with §§ 11.4 and 11.5 or 11.6 of this Subchapter, as applicable.
7.Persons who offer or conduct blood lead analysis and/or environmental lead analysis require a certification, license, and/or approval from the Department in accordance with § 11.9 of this Subchapter, as applicable.
8.Persons who advertise to provide any regulated activities in Rhode Island shall include their applicable Department license number in all advertisements for that work.
A.The following facilities are subject to the requirements of this Part:
a.Non-exempt pre-1978 residential rental units, including single-family dwellings, multi-family dwelling units and common areas, whether occupied or vacant;
b.Pre-1978 owner-occupied dwelling units, including single-family dwellings, multi-family dwelling units and common areas, in which a child resides or is expected to reside;
c.Any pre-1978 foster home where a foster child resides or is expected to reside;
d.Any other pre-1978 property in which a child resides or is expected to reside; or
e.Any pre-1978 building or part of a building being converted into target housing.
2.Child Care Facilities
a.Family child care homes;
b.Group family child care homes;
c.Child day care centers;
d.Nursery schools, preschools, and kindergarten classrooms; and
e.Any pre-1978 building or part of a building being converted into child care facilities.
a.Housing for the elderly or persons with disabilities provided that no child resides in such dwellings; and
b.Zero (0) bedroom dwelling units in which no child resides.
A.Whenever used in this Part, the following terms must be construed as follows:
1.“Act” means R.I. Gen. Laws Chapter 23-24.6 entitled "Lead Poisoning Prevention.”
2.“Agent” means any person authorized, in writing or otherwise, by an owner to act on behalf of or represent the interests of the owner. For purposes of § 3.5 of this Part, an agent is any designated client representative, transaction facilitator, transaction coordinator, or dual facilitator as defined by R.I. Gen. Laws § 5-20.6-2 who enters into a contract with a seller or lessor with the objective of selling or leasing real estate, but does not include designated client representative for the buyer.
3.“Approved” means approved by the Department, State, or local authority having legal and administrative authority for such.
4.“Cease work order” means an order issued by a State Inspector to immediately stop regulated activities, being conducted in violation of this Part, until the violator can demonstrate their ability to comply with the Department.
5.“Child” or “children” means, for the purposes of this Part, any individual younger than six (6) years of age.
6.“Child care facility” means any building and/or area whose primary purpose is or will be to educate or care for children younger than six (6) years of age, including, but not limited to, child day care centers, nursery schools, preschools, kindergarten classrooms, public and private elementary schools. Child care facilities located in public or commercial buildings encompass only those common areas that are routinely used by children, such as restrooms and cafeterias. Common areas that children only pass through, such as hallways, staircases, and garages are not included. The child care center also encompasses the exterior sides of the building that are immediately adjacent to the child care center and the exterior common areas or play areas routinely used by children.
7.“Child day care” means daily care and/or supervision offered commercially to the public for any part of a twenty-four (24) hour day to children away from their homes.
8.“Child day care center” means any person, firm, corporation, association, or agency who, on a regular or irregular basis, receives any child under the age of sixteen (16) years, for the purpose of care and/or supervision, not in a home or residence, apart from the child’s parent for any part of a twenty-four (24) hour day irrespective of compensation or reward. It shall include childcare programs that are offered to employees at the worksite. It does not include nursery schools or other programs of educational services subject to approval by the commissioner of elementary and secondary education.
9.“Childhood lead poisoning” means, for the purposes of this Part, a confirmed blood lead level equal to or greater than five micrograms per deciliter (5 µg/dL).
10.“Common area(s)” means a portion of a residential property that is available for shared use by occupants of more than one (1) dwelling unit, such as hallways, stairways, lobbies, community rooms, recreational rooms, laundry rooms, garages, playgrounds, and boundary fences; in general, any area not kept locked.
11.“Department” means the Rhode Island Department of Health.
12.“Director” means the Director of the Rhode Island Department of Health or his/her designee.
13.“Dwelling” means an enclosed space which is wholly or partly used or intended to be used for living or sleeping by human occupants as defined in R.I. Gen. Laws § 23-24.6-4 (5).
14.“Dwelling unit” means any room or group of rooms located within a dwelling and forming a single habitable unit with facilities which are used or intended to be used for living, sleeping, cooking, and eating as defined in R.I. Gen. Laws § 23-24.6-4 (6). For the purposes of this Part, a dwelling unit includes all relative interior and exterior common areas including soil.
15.“Environmental lead” means, for the purposes of this Part, inorganic lead contained in paint, dust, soil, and/or water.
16.“EPA” means the United States Environmental Protection Agency.
17.“Expected to reside” means actual knowledge that a child will occupy a single-family house or dwelling unit within the next twelve (12) months for fourteen (14) or more consecutive or nonconsecutive days per year. If a resident woman is known to be pregnant, there is actual knowledge that a child will reside in her dwelling unit.
18.“Foster home” means placement of a child in temporary custody or custody of DCYF in a foster family home or in a private or public child care facility which is licensed by the State. (See R.I. Gen. Laws § 40-11-12.1(h))
19."Family child care home" means a licensed residence where the resident can provide child care for up to six (6) children, or up to eight (8) children with an assistant approved by the Department of Human Services.
20.“Group family child care home” means a residence where the resident can provide child care for eight (8) to twelve (12) children with one (1) or two (2) approved assistants (dependent on enrollment details).
21.“Housing for the elderly or persons with disabilities” means retirement communities and other housing reserved for households composed of one (1) or more persons sixty-two (62) years of age or older, or other age if recognized as elderly by a specific federal housing assistance program, or persons with disabilities, and is owned, managed by, or for which the rent is subsidized or paid by a Federal, State or local government housing agency.
22.“HUD” means the United States Department of Housing and Urban Development.
23.“Immediate Compliance Order” means an order issued by the Director to immediately stop specified activities which pose a threat to the health or safety of children, occupants, workers, or the public.
24.“Interim controls” means a set of measures designed to temporarily reduce human exposure to lead hazards, including specialized cleaning, repairs, maintenance, painting, non-permanent encapsulation or enclosure, and ongoing monitoring of lead-based paint or potential lead hazards, and the establishment and operation of management and resident education programs.
25.“Lead assessor” means a person, either authorized to act as an enforcing officer under the housing code or a designated employee of a Federal, State or municipal agency with jurisdiction over housing, occupational health, child welfare and/or environmental standards who successfully completed a Lead Assessor training course and obtained a license, pursuant to Part 11 of this Subchapter, to conduct lead inspections.
26.“Lead-based paint” means any paint or other surface coating that contains lead in excess of the Lead-Safe thresholds specified in § 5.8 of this Subchapter.
27.“Lead contractor” means, as defined by R.I. Gen. Laws § 23-24.6-4, any person or entity engage in lead hazard reduction as a business that includes consultants who design, perform, oversee, or evaluate lead hazard reduction projects undertaken pursuant to the requirements of this chapter.
28.“Lead hazard control” or “LHC” means any window replacement and/or interim controls intended to correct lead hazards identified in a lead inspection report or standard treatments to remove lead-based paint and/or minimize lead exposure, which may include measures to reduce the concentration of lead in paint, dust, soil, and/or water using approved treatment methods specified in this Part.
29.“Lead hazard mitigation” or “LHM” means spot removal or minor repair and maintenance activities by a property owner or designated person in a residential rental unit intended to correct lead hazards, which may include measures to reduce friction or stabilize paint using approved treatments and work methods specified in this Part.
30.“Lead hazard reduction” or “LHR” means, as defined by R.I. Gen. Laws § 23-24.6-4, any action or actions designed to reduce exposure to toxic levels of lead which impose an unacceptable risk of exposure in any dwelling or dwelling unit where a child under the age of six (6) years with environmental intervention blood lead levels or greater resides, or on any premises and may include, but is not limited to: repair, enclosure, encapsulation, or removal of lead based paint and/or lead contaminated dust, soil or drinking water relocation of occupants; and cleanup measure or ongoing maintenance measures which may include, activities and/or measures that do not present an undue risk to children under age six (6). See “Lead Contractor.”
31.“Lead inspector” means an individual, who successfully completed a certified Lead Inspector training course, passed the Lead Inspector State examination, completed a supervised field apprenticeship, and obtained a license, pursuant to Part 11 of this Subchapter, to conduct lead inspections.
32.“Lead professional” means an occupational grouping of individuals and organizations licensed or certified pursuant to Part 11 of this Subchapter.
33.“Lead renovation firm” means any person or organization engaged in renovation, repair, and painting (RRP) or lead hazard control (LHC) as a business and licensed pursuant to Part 11 of this Subchapter.
34.“Lead renovator” means an individual who successfully completed a certified Lead Renovator training course and obtained a valid training certificate, pursuant to Part 11 of this Subchapter, to perform renovation, repair, and painting (RRP) and lead hazard control (LHC) work.
35.“Lead safe” means, as defined by R.I. Gen. Laws § 23-24.6-4, that a dwelling, dwelling unit, or premises has undergone sufficient lead hazard reduction to ensure that no significant environmental lead hazard is present and includes but is not limited to covering and encapsulation.
36.“Lead-safe standard” means lead in paint, dust, soil and water below the Lead-Safe thresholds in § 5.8 of this Subchapter or intact paint and covered soil above the lead safe thresholds in § 5.8 of this Subchapter.
37.“Lead screening” means a method for identifying an asymptomatic child at high risk of having childhood lead poisoning from a population of children not previously diagnosed as having lead poisoning or in a child not exhibiting signs or symptoms believed to be related to lead poisoning, including the obtaining of the necessary specimen(s) for a blood lead screening test, and specimen handling and preparation.
38.“Lease” means any agreement, written or oral, between a lessor and lessee concerning the rent, use and occupancy of a residential dwelling, dwelling unit, or premises subject to the provisions of the Residential Landlord and Tenant Act (R.I. Gen. Laws Chapter 34-18).
39.“Lessee” means a person named as the renter in a rental agreement or occupancy agreement for a single-family house, dwelling unit, or premises. See “Occupant” and “Tenant.”
40.“Lessor” means any person who offers to rent, lease, or sublease a single-family house, dwelling unit, or premises.
41.“License” means an authorization granted by the Department to engage in a business or occupation that is subject to regulation by the Department. For the purposes of this Part, a registration, certification, permit or similar authorization issued by the Department is also considered to be a license.
42.“Lis pendens” means "suit pending” in Latin. Lis pendens is taken as constructive notice of a pending lawsuit or an existing unsettled Department enforcement action and it serves to place a cloud on the title of the property in question until the enforcement action or suit is resolved and/or the lis pendens is released.
43.“Mechanical paint removal” means the use of any mechanical force to remove paint from a surface, including, but not limited to, electrical or other power equipment or abrasive blasting.
44.“Minor repair and maintenance” means work activities, including minor heating, ventilation, and air conditioning (HVAC) work, electrical work, or plumbing work that disturbs less than six square feet (6 ft2) of lead-based paint per room for interior activities or less than twenty square feet (20 ft2) of lead based-paint for exterior activities where none of the work practices prohibited or restricted by this Part are used and where the work does not involve window replacement or demolition of painted surfaces. For the purposes of this Part, the term minor repair and maintenance shall be synonymous with spot removal. See “Spot removal.”
45.“Mortgagee” means a person or entity, usually a bank or financial institution, who is the party to a mortgage who makes a loan and holds mortgaged property as security for repayment of the loan. A mortgagee is not considered an owner unless such person has taken full legal title through foreclosure, deed in lieu of foreclosure, or otherwise.
46.“Noncompliance” or “nonconformance” or “failure to comply” or “violation” means any act or failure to act which constitutes or results in or from:
a.Engaging in any activity prohibited by, or not in compliance with, any law administered by the Director or any Rule, Regulation, notice, license, certification, consent agreement or order adopted pursuant to the Director's authority;
b.Engaging in any business or other activity without a necessary permit, license, certification, or approval that is required by law or Regulation; and/or
c.The failure to perform, or the failure to perform in a timely fashion, anything required by a law administered by the Director or by a Rule, Regulation, notice, license, certification, consent agreement or order adopted and/or issued pursuant to the Director's authority.
47.“Notice of violation” means a legal notice issued by the Department to an owner of a property where a Department-initiated lead inspection identified lead hazards. A Notice of Violation requires corrective action, pursuant to Part 8 of this Subchapter.
48.“Occupant” means, as defined by R.I. Gen. Laws § 23-24.6-4, any person who legally resides in, or regularly uses, a dwelling, dwelling unit, or structure; provided, however, that a guest of any age shall not be considered an occupant for the purposes of this Part. See “Lessee” and “Tenant.”
49.“Order” means the whole or a part of an action, finding, declaration or disposition by the Department, whether affirmative, negative, injunctive or declaratory in form, other than rulemaking but including notices of violation, orders to correct, compliance orders, permits, certifications, licenses, and approvals issued pursuant to the Director's authority.
50.“OSHA” means the United States Occupational Safety and Health Administration.
51.“Owner” means as defined by R.I. Gen. Laws § 23-24.6-4, any person who, alone or jointly or severally with others:
a.Shall have legal title to any dwelling or dwelling unit with or without accompanying actual possession of it; or
b.Shall have charge, care, or control of any dwelling or dwelling unit as owner or agent of the owner or an executor, administrator, trustee, or guardian of the estate of the owner. Any person representing the actual owner shall be bound to comply with the provisions of this and with Rules and Regulations adopted pursuant to this Chapter to the same extent as if that person were the owner. An agent of the owner excludes real estate and property management functions where the agent is only responsible for the property management and does not have authority to fund capital and/or major property rehabilitation on behalf of the owner.
c.For purposes of publicly owned property only, the owner shall be defined to be the Chief Executive Officer of the municipal or State agency which owns, leases or controls the use of the property.
52.“Paint” means any substance applied to a surface as a surface coating, including, but not limited to, household paints, varnishes and stains.
53.“Painted surface” means a component surface covered in whole or in part with paint or other surface coatings.
54.“Painted surface to be disturbed” means a painted surface that is to be stripped, scraped, sanded, cut, penetrated or otherwise affected by renovation or rehabilitation work in a manner that could potentially create a lead hazard by generating dust, fumes, or paint chips.
55.“Person” means any individual, partnership, firm, corporation, association, or organization, including municipal and State agencies.
56.“Premises” means, as defined by R.I. Gen. Laws § 23-24.6-4, a platted lot or part thereof or unplatted lot or parcel of land, occupied by a dwelling or structure and includes any building, accessory structure or other structure thereon which is or will be frequently used by children under the age of six (6) years.
57.“Purchaser” means any person who purchases or enters into a contractual agreement to gain legal title to a dwelling, condominium, or residential premises.
58.“Real estate” means any property consisting of land and the buildings on it.
59.“Renovation, repair, and painting” or “RRP” means activities being done by a Lead Renovation Firm typically performed at the option of the property owner for aesthetic or other reasons, or as an interim control to minimize lead hazards. RRP is not designed to permanently eliminate lead-based paint. Since RRP projects can disturb lead-based paint in homes and buildings built before 1978, thus creating new lead hazards, individual renovators must be trained and certified, use lead-safe work practices, and firms must be licensed. Any additional work which disturbs lead-based paint, other than emergency renovation operations, performed in the same room or area within the same thirty (30) day period must be considered the same RRP project for the purpose of determining whether the work is spot removal or renovation, repair, and painting (RRP).
60.“Residential dwelling” means a building containing one (1) or more residential dwelling units.
61.“Second notice of violation” or “2nd NOV” means a legal notice issued by the Department to an owner who did not meet the requirements of the (first) Notice of Violation. The Department shall post the Second Notice of Violation at the property and record it as a lis pendens with the Recorder of Deeds in the city/town where the property is located. See “Notice of Violation.”
62.“Seller” means any person who has the authority to transfer legal title to real estate.
63.“Spot removal or de minimis” means minor repair and maintenance activities, which do not involve window replacement, interior mechanical paint removal, or demolition of painted surface areas, and disturb less than six square feet (6 ft2) of interior lead-based paint per room or less than twenty square feet (20 ft2) of exterior lead-based paint, and provided that no prohibited work practices are used. When removing painted components, or portions of painted components the entire surface area removed is the amount of lead-based paint being disturbed. Any additional work which disturbs lead-based paint, performed in the same room or area within the same thirty (30) day period of an RRP project must be considered the same RRP project and not spot removal.
64.“State inspector” means the Director, his or her designee, or any inspector employed by the Department who is authorized by the director to conduct comprehensive environmental lead inspections and/or other inspections for the Department.
65.“Target housing” means any pre-1978 residential dwelling, except housing for the elderly or persons with disabilities or zero (0) bedroom units in which no child resides.
66.“Temporary lead hazard control measures” means a set of measures designed to temporarily reduce human exposure or likely exposure to lead hazards, including but not limited to, specialized cleaning, temporary containment (e.g. plastic sheeting and/or duct tape), ongoing monitoring, and the establishment and operation of lead management and resident education programs.
67.“Tenant” means any person, other than the owner, who enters into an agreement to rent, lease, or sublease a single-family house, dwelling unit, or premises. See “Lessee or Occupant.”
68.“Zero-bedroom dwelling unit” means any residential dwelling unit in which the living area is not separated from the sleeping area, including, but not limited to, efficiencies, studio apartments, dormitory or single room occupancy housing, and military barracks.
3.4Childhood Lead Poisoning Screening
A.Health care providers shall ensure that childhood lead poisoning screening is conducted either by venipuncture or by capillary blood lead sampling in accordance with the following requirements:
Rhode Island children shall be screened for lead poisoning at least twice, at least twelve (12) months apart, and before the age of thirty-six (36) months. For additional information on screening for lead poisoning see the Screening and Referral Guidelines on the Department’s website.
a.All blood lead screening and blood lead confirmatory samples submitted to the Department’s laboratory for analysis must be accompanied by a completed laboratory requisition form, including all data necessary for reimbursement by health insurers, and must be packaged in accordance with procedures established by the Department’s laboratory.
b.All blood lead screening samples must be submitted to the Department’s laboratory for analysis, unless the Department has approved the use of another laboratory.
c.All results of blood lead screening performed by any other laboratory must be reported to the Department in an electronic format specified by the Department.
a.All blood lead confirmatory samples must be sent to a clinical laboratory licensed by the Department to perform routine chemistry analysis of blood.
b.All results of confirmatory blood lead testing must be reported to the Department in an electronic format specified by the Department.
4.Samples Submitted to Department Laboratory
All blood lead screening and blood lead confirmatory samples submitted to the Department’s laboratory for analysis must be accompanied by a completed laboratory requisition form, including all data necessary for reimbursement by health insurers, and must be packaged in accordance with procedures established by the Department’s laboratory.
3.4.2Fees for Childhood Lead Poisoning Screening
Fees for blood lead screening are included in the Department’s Rules and Regulations pertaining to the Fee Structure for Licensing, Laboratory and Administrative Services provided by the Department of Health (Part of this Title).
3.4.3Reporting of Cases of Childhood Lead Poisoning
A.Any person employed as or by a health care provider who makes the diagnosis of childhood lead poisoning shall report such diagnosis to the Department within ten (10) days of the diagnosis using a reporting method approved by the Department.
B.Use of the Department’s laboratory, or other Department-approved laboratory, shall constitute compliance with these reporting requirements.
3.5.1EPA/HUD Lead Disclosure Rule
The requirements in § 3.5 of this Part are in addition to, not in lieu of, Federal requirements for disclosure of lead-based paint and/or environmental lead hazards in housing (24 C.F.R. Part 35, Subpart A and 40 C.F.R. Part 745, Subpart F).
3.5.2Records and Reports
A.Property owners shall maintain information concerning the presence of lead-based paint and/or environmental lead hazards including, but not limited to, lead certificates and inspection reports for as long as they own that property.
B.The owner shall notify each agent about the existence of any such available lead certificates and reports, including any certificates or reports which are in the possession of the seller or lessor or which are reasonably obtainable.
3.5.3Disclosure Requirements for Sellers and Lessors
A.Non-exempt sellers and lessors shall meet all of the following requirements before a purchaser or lessee is obligated under any contract to purchase or lease target housing:
The seller or lessor shall provide the purchaser or lessee with the EPA pamphlet Protect Your Family from Lead in Your Home containing the insert What You Should Know about the Rhode Island Lead Law, available on the Department’s website.
2.Lead Warning Statement
The seller or lessor shall include in each contract for the sale or lease of any residential dwelling, including oral leases, a lead warning statement and a written disclosure acknowledgment that is in accordance with 24 C.F.R. § 35.92 and 40 C.F.R. § 745.113.
a.The seller or lessor shall disclose to the purchaser or lessee, as well as to each agent, any known information about the presence of lead-based paint and/or environmental lead hazards at the property being sold or leased.
b.Any agreement to transfer real estate must contain an acknowledgment that a completed lead disclosure form has been provided to the buyer by the seller in accordance with the provisions of § 3.5 of this Part.
c.For all properties, the lead disclosure must include the following:
(1)The property address and dwelling unit number, if applicable;
(2)A copy of any current lead certificate(s) for the dwelling or dwelling unit and common areas;
(3)A chronological listing of all available lead inspection reports and certificates for the property being sold or leased; and
(4)Instructions on how to obtain copies of those reports and certificates. Delivery to the requesting purchaser or lessee must be made within seven (7) days of the request and at no charge.
d.For residential rental properties, the lead disclosure must also include:
(1)Basic information about this Part and its applicability to the subject property;
(2)The name and contact information of the owner, registered agent, and/or designated person who is responsible for maintaining the property.
e.The disclosure acknowledgment must be a stand-alone document, which includes the property address, or its own separate page when included in a written lease.
f.The seller or lessor shall retain a copy of the signed and dated disclosure acknowledgment for a minimum of three (3) years or the term of the tenancy, whichever period is longer, as proof of compliance with § 3.5 of this Part.
3.5.4Additional Requirements for Sellers
A.Lead Inspection Period
1.Sellers of any one (1) to four (4) unit residential dwelling built prior to 1978 shall allow the purchaser a ten (10) day period in which to have an inspection for the presence of lead-based paint and/or environmental lead hazards prior to the purchaser becoming obligated under any Contract for the Purchase and Sale of Residential Real Property.
a.A mortgagee selling a property at a foreclosure auction is exempt from allowing the inspection.
b.A seller and purchaser may agree to change the terms of the lead inspection period, provided that the agreement is in writing and the seller has fully complied with all other disclosure requirements.
3.5.5Responsibilities of Real Estate Agents
A.Each agent shall ensure compliance with all requirements of § 3.5 of this Part by informing the seller or lessor of his/her responsibilities and ensuring that the seller or lessor has performed all required activities or personally ensuring compliance with the disclosure requirements.
B.If the agent has complied with § 3.5.5(A) of this Part, the agent shall not be liable for the failure to disclose to a purchaser or lessee the presence of lead-based paint, existing environmental lead exposure hazards, or potential environmental lead exposure hazards known by a seller or lessor but not disclosed to the agent.
C.If the agent has not complied with § 3.5.5(A) of this Part, the Department shall report the agent to the Department of Business Regulation, Division of Commercial Licensing and Regulation, Real Estate Section, for enforcement action pursuant to R.I. Gen. Laws Chapter 5-20.5.
3.5.6Responsibilities of Property Owners
A.Owners of regulated facilities shall maintain their properties in a lead-safe condition, free from lead hazards.
B.Owners of pre-1978 residential rental units shall obtain a valid lead certificate for all non-exempt rental units by hiring a licensed Lead Inspector to perform a lead inspection.
C.Owners of regulated facilities performing lead hazard mitigation, spot removal or minor repair and maintenance activities shall not use any work practices prohibited in § 12.5 of this Subchapter.
D.Owners of regulated facilities and target housing shall employ a licensed Lead Renovation Firm or Lead Contractor for:
1.Any window removal/replacement (no de minimis);
2.Interior mechanical paint removal (no de minimis);
3.Interior or partial demolition activities (no de minimis);
4.Activities that disturb six square feet (6 ft2) or more of lead-based paint per interior room; and/or
5.Activities that disturb twenty square feet (20 ft2) or more of exterior lead-based paint.
E.Owners in receipt of any notice or order from the Department shall comply with all terms and conditions as directed in that notice or order to avoid potential enforcement actions, pursuant to § 5.7 of this Subchapter.
F.Owners in receipt of a notice or order from a Lead Assessor or other government enforcement authority, as applicable, shall:
1.Contact that enforcement authority to arrange a follow-up inspection for the property, as directed in the notice or order; or
2.Hire a licensed Lead Inspector to perform the applicable follow-up inspection, as directed in the notice or order.
G.Owners of any dwelling or dwelling unit that was the subject of any lead inspection shall notify the occupants of the results within seven (7) days of receiving those results and provide a complete copy of the lead inspection report upon request.
H.Owners shall notify and disclose information about lead-based paint and/or environmental lead hazards to prospective tenants or buyers, as well as to each designated client representative, transaction facilitator, transaction coordinator, or dual facilitator, pursuant to § 3.5 of this Part.
I.Owners and their agents who fail to comply with the requirements of this Part and any related State law or Regulation shall be subject to the compliance and enforcement procedures, pursuant to § 3.6 of this Subchapter.
3.6Compliance and Enforcement
3.6.1Licenses and Certifications
A.Denial of Applications
1.Any person who neglects or refuses to pay an administrative fine or penalty cannot obtain or renew any Department-issued license or certification until all outstanding administrative fines or penalties have been paid.
2.The Department may deny an application for licensure or certification pursuant to this Part if the Department determines that the applicant has not complied with or has not demonstrated the ability to comply fully with all applicable requirements established by the Act and/or this Part.
3.If the applicant appeals the denial, a hearing will be scheduled in accordance with the provisions of § 3.6.11 of this Part.
B.Action against a License or Certification
1.The Department may restrict, limit, suspend, revoke, or take other disciplinary action against any license or certification issued pursuant to Part 11 of this Subchapter in accordance with R.I. Gen. Laws § 23-24.6-20(e) for noncompliance with this Part, including, but not limited to:
a.False representation of credentials as an appropriately licensed or certified lead professional;
b.Obtaining licensure or certification based on misrepresentation or fraud;
c.Using a license or certification for fraudulent, deceptive, or unethical purposes;
d.Failure to discharge activities in accordance with the Act or this Part, including employers who fail to comply with applicable OSHA requirements;
e.Failure to meet requirements of this Part and/or within the allotted time frame, including, but not limited to:
(1)Failure of a Lead Contractor or Lead Renovation Firm to distribute appropriate pre-renovation education information to owners and occupants required by EPA/HUD and this Part;
(2)Failure of a licensed lead professional to notify the Department of any changes to information submitted in an application for licensure or certification from the Department;
(3)Failure to successfully complete the training required by this Part; and/or
(4)Failure of a Lead Inspector, Lead Assessor, or Lead Renovator to distribute lead test results, lead inspection reports, and/or lead certificates in accordance with the requirements of Part 5 of this Subchapter.
f.Issuing fictitious results, reports, or certificates;
g.Failure to meet the terms or conditions of any notice, order, or consent agreement with the Department; and
h.Any good cause within the meaning and purpose of the Act or this Part.
2.A person whose license or certification was issued by reciprocity shall immediately notify the Department in writing of any final administrative action taken against the licensee by EPA or another jurisdiction during the term of said license. The Department may subject the license by reciprocity to such action taken by EPA or the other jurisdiction.
3.A person whose license or certification is restricted, limited, suspended, or revoked may request a hearing in accordance with the administrative procedures contained in § 3.6.11 of this Part.
4.Any person who is subject to a Cease Work Order has the right to request an administrative hearing, in writing, within thirty (30) days of the order.
5.No request for a hearing on an Immediate Compliance Order can be made.
3.6.2Failure to Comply
A.The following violations are acts of noncompliance for which the Department may initiate an enforcement response against an owner, their agent, or another regulated person:
1.Failure to maintain the premises of a regulated facility in a lead-safe condition;
2.Failure of a non-exempt residential rental unit or child care facility to have an appropriate lead certificate;
3.Failure to comply with the lead disclosure requirements in § 3.5 of this Part;
4.Failure to grant access to a premise for inspection by State Inspectors or the Department’s duly authorized designees, upon presenting identification and appropriate credentials;
5.Failure to hire appropriately licensed or certified lead professionals to conduct regulated activities;
6.Failure of a person conducting regulated activities to be appropriately licensed or certified, pursuant to this Part 11 of this Subchapter;
7.Failure to comply with the requirements of any Department-issued or approved lead professional license or certification;
8.Failure to comply with the terms of any Department notice, order, or consent agreement and/or by the deadline specified in the notice, order, or consent agreement;
9.Failure to establish, maintain, and/or provide the Department access to the records required by this Part; and
10.Failure to adhere to any other applicable conditions or requirements of this Part.
A.Whenever the Department determines that any person fails to comply with any requirements of the Act, this Part, or any Department-issued notice, order, consent agreement, license or certification, the Department may pursue enforcement action pursuant to this Part, to correct the noncompliance and/or impose a fine or penalty.
B.All fines and/or penalties will be assessed in accordance with the provisions of the Department’s Penalty Matrix in § 3.6.5(C) of this Part below.
C.The Department can also refer the noncompliance to OSHA, EPA, HUD, the Rhode Island Department of Attorney General, other State agencies, district courts, and/or local municipalities for additional enforcement actions.
D.Nothing contained in this Section shall limit the Department from requiring immediate compliance with any and all terms of an order, when, in the Department’s discretion, circumstances present an immediate risk to the health or safety of a child, workers in or occupants of a building toward which the order is directed, and/or the general public.
A.Pursuant to the authorities defined in R.I. Gen. Laws Chapters 23-1 and 23-24.6, the Department may pursue any combination of administrative and/or judicial enforcement actions, depending upon the circumstances and gravity of each case, including, but not limited to:
1.Enforcement of compliance with this Part and the Act;
2.Determination and prioritization of properties with “clear and significant health risks” where there have been instances of childhood lead poisoning;
3.Issuance of compliance notices or orders, including but not limited to:
a.Notice of Violation;
b.Second Notice of Violation;
c.Notice of Noncompliance;
d.Cease Work Order; and/or
e.Immediate Compliance Order.
4.Assessment of administrative fines and penalties;
5.Recording a notice, order, or consent agreement as a Notice of Lis Pendens against the title of the property, and/or recording any outstanding fees or administrative penalties as a lien against the property with the Registry of Deeds in the municipality where the property is located;
6.Coordination of enforcement actions including, but not limited to the following State, Federal and local agencies:
a.Municipal building officials;
b.Municipal housing code enforcement;
c.Rhode Island Department of Environmental Management (DEM);
d.Rhode Island Contractor’s Registration and Licensing Board (CRLB);
e.Rhode Island Department of Business Regulation (DBR);
f.US Environmental Protection Agency (EPA);
g.US Department of Housing and Urban Development (HUD); and/or
h.US Occupational Safety and Health Administration (OSHA).
7.Pursuit of criminal or civil remedies through the Department of Attorney General, district courts, or municipal courts;
8.Revocation, suspension, limitation, restriction, or other disciplinary action regarding a license or certification issued pursuant to Part 11 of this Subchapter; and/or
9.Invalidation of a lead certificate or inspection exemption issued pursuant to this Part 5 of this Subchapter; and/or
10.Suspension or revocation of database access for Lead Inspectors or Lead Assessors to issue lead certificates.
B.Nothing herein shall preclude the Department from resolving outstanding violations or penalties through a consent agreement at any time the Department deems appropriate.
C.The imposition of one (1) or more remedies and/or penalties provided shall not prevent the Department from jointly exercising any other remedy available, except:
1.Fines or penalties levied pursuant to R.I. Gen. Laws § 23-24.6-27 shall be in lieu of any administrative fines or penalties issued pursuant to R.I. Gen. Laws § 45-24.3-18(a), and
2.No municipality shall issue any fine or penalty for the same violation.
A.Applicability and Scope
1.Pursuant to the provisions of R.I. Gen. Laws § 23-24.6-27, the Department may impose an administrative fine or penalty of up to five thousand dollars ($5,000.00) per violation per day for each current or past violation of:
a.The Act or any Regulations promulgated pursuant to the Act; and/or
b.Any notices, orders, or consent agreements issued pursuant to the Act or this Part.
2.The Department, in its discretion, may adjust the fine or penalty upward or downward based on the criteria listed in this Section, provided that no fine or penalty exceeds five thousand dollars ($5,000.00) per violation per day.
B.Assessment of Fines and Penalties
1.The total amount of any administrative fine or penalty to be levied shall be calculated according to the guidelines in this Section and provided in the Department’s Penalty Matrix in § 3.6.5(C) of this Part below.
2.The penalty may be based on the gravity of the violation. That portion will be calculated according to the applicable "Penalty Matrix" in § 3.6.5(C) of this Part. The applicable penalty range is reached by first determining the "Type of Violation" and the "Deviation from the Standard" of the alleged violation.
3.“Type of Violation" – refers to the nature of the legal requirement allegedly violated.
a.Type I violations include violations of legal requirements identified by the Department as directly related to the protection of the public health, safety, welfare or environment. Such violations include, but are not necessarily limited to:
(1)Acts which pose an actual or potential for harm to the public health, safety, welfare or the environment;
(2)Acts or failures to act which are of major importance to the regulatory program;
(3)Any failure to obtain a required license or approval from the Department;
(4)Any failure to report an unauthorized activity which actually or potentially threatens the public health, safety, welfare or the environment;
(5)Any failure to take remedial action to mitigate a known or suspected harm; and/or
(6)Any failure to comply with an order of the Department which is presently enforceable.
b.Type II violations include violations of legal requirements identified by the Department as important but indirectly related to the protection of the public health, safety, welfare or environment. Such violations include, but are not necessarily limited to:
(1)Acts which pose an indirect actual or potential for harm to the public health, safety, welfare or the environment;
(2)Acts or failures to act which are of moderate importance to the regulatory program; and/or
(3)Failure to comply with any procedure required by any law administered by the Department, or by a Rule or Regulation adopted pursuant to the Department’s authority for the prevention of harm to the public health, safety, welfare or the environment.
c.Type III violations include violations of legal requirements identified by the Department as important but incidental to the protection of public health, safety, welfare or the environment. Such violations include, but are not necessarily limited to:
(1)Acts of noncompliance with inspection standards, reporting requirements or methods which are incidental to the Department's ability and obligation to enforce the laws administered by the Department.
4."Deviation of the standard" – refers to the degree to which the violation is out of compliance with the legal requirement allegedly violated. The Deviation from the Standard may be determined without consideration of factor (I) enunciated below in cases of strict liability. In all other cases, the Department's assessment of whether a violation is a minor, moderate or major deviation from the standard is based upon an evaluation of one (1) or more of the following factors except to the extent already considered:
a.The extent to which the act or failure to act was out of compliance;
c.The amount of the pollutant;
d.The toxicity or nature of the pollutant;
e.The duration of the violation;
f.The areal extent of the violation;
g.Whether the person took reasonable and appropriate steps to prevent and/or mitigate the non-compliance;
h.Whether the person has previously failed to comply with any Regulations, order, statute, license, permit or approval issued or adopted by the Department, or any law which the Department has the authority or responsibility to enforce;
i.The degree of willfulness or negligence, including but not limited to, how much control the violator had over the occurrence of the violation and whether the violation was foreseeable;
j.Any other factor(s) that may be relevant in determining the amount of a penalty, provided that said other factor(s) shall be set forth in the Notice of Violation or other written notice of the assessment of a penalty.
TYPE OF VIOLATION
Up to $5,000.00
Up to $2,500.00
Up to $1,000.00
Up to $1,000.00
Up to $500.00
Up to $100.00
1.Multiple Violations. For the purposes of determining the total administrative fine or penalty to be assessed:
a.Each violation at any premises may, within the Department’s discretion, be considered as a separate violation.
b.When multiple violations of this Part or of any notice, order, or consent agreement issued by the Department are to be counted as separate violations, each act is counted as separate and distinct from any other act:
(1)By its nature;
(2)Time or place; or
(3)Risk of harm to the public health.
c.When applicable, the period for calculating the fine or penalty for a violation begins on the day following the:
(1)Receipt or posting of a notice or order issued by the Department;
(2)Expiration of a compliance period;
(3)Expiration of a consent agreement; or
(4)Expiration of an extension of a compliance period or consent agreement.
d.Each day of a continued violation may be considered a separate violation and compounded for each day during which the violation is repeated, continued, or remains in place.
D.Criteria for Assessment of Fines and Penalties
1.In deciding whether to assess an administrative fine or penalty the Department, in its discretion, may weigh the relevance of each factor in any case, as well as the amount of any such administrative fine or penalty. The Department shall consider, but not be limited to, the following:
a.The ability of the violator to comply;
b.The willfulness of the violation(s);
c.The total number of violations;
d.The cumulative number of days of noncompliance;
e.Any prior record of noncompliance with any Regulation, notice, order, consent agreement, license or certification issued or adopted by the Department;
f.The economic benefit derived by the violator from noncompliance;
g.Any costs incurred by the State related to the investigation and enforcement of the noncompliance;
h.The ability of the violator to pay potential fines and penalties;
i.Actual or potential injury to public health and safety; and/or
j.Any other factors that the Department considers relevant.
E.Payment of Fines and Penalties
1.Unless another time period is specified in the Department’s order, any administrative fine or penalty assessed pursuant to this Section shall be due and payable within thirty (30) days of service of the notice of the order.
2.If the person named in the order requests a hearing, pursuant to R.I. Gen. Laws Chapter 23-24.6, within thirty (30) days of receipt of the notice of the order the thirty (30) day payment period shall be stayed pending a hearing on the matter.
3.All payments must be made in the form of a cashier's check, certified check, money order, or any other method approved by the Department, payable to: General Treasurer, State of Rhode Island.
F.Failure to Pay
1.If, after demand, any person assessed an administrative fine or penalty pursuant to this Section neglects or refuses to pay, the assessed amount together with interest and any other costs that may accrue will be a lien filed in favor of the State upon:
a.The violator’s current and future Rhode Island income tax refunds; and/or
b.The violator’s real property subject to the order, recorded with the Registry of Deeds in the municipality where the property is located.
3.6.6Extension of Compliance Period
A.Requests for extensions to the compliance period specified in a Department-issued notice, order, or consent agreement, shall be made in writing to the Department.
B.Extensions may be granted, at the discretion of the Department, based on the circumstances of a case and if an extension is not considered to pose a threat to the health or safety of children, other occupants of the building, and/or the general public.
C.Owners who request an extension to the compliance period specified in a Department-issued notice or order, shall enter into a consent agreement with the Department and complete temporary lead hazard control measures within a time frame approved by the Department.
D.In deciding whether to grant an extension, as well as any condition(s) attached to such an extension, the Department shall consider, but not be limited to, the following factors:
1.The current threat to public health posed by the violation(s);
2.The severity of the violation(s);
3.The progress made toward correcting the violation(s); and
4.Any prior or concurrent instances of noncompliance by the person named in the notice, order, or agreement.
E.Persons, who fail to comply with the terms of this Part, or a Department-issued notice, order, or consent agreement, may be subject to additional escalated enforcement action by the Department, DEM, CRLB, OSHA, Department of the Attorney General, and/or the municipality where the violation occurred.
F.Unless an extension is granted by the Department in writing, the Department may assess a fine or penalty for failure to comply with this Part, or a Department- issued notice, order, or consent agreement, by the compliance period or deadline specified in a Department-issued notice, order, or consent agreement.
G.The Department may declare any extension granted pursuant to this Section immediately null and void if the Department determines that the terms of the notice, order, or consent agreement have been violated.
A.If an owner fails to comply with the lead-safe standards of Part 5 of this Subchapter, as applicable:
1.Households of an “at risk occupant” may seek injunctive relief from a court with jurisdiction against the owner in the form of a court order to compel compliance with the requirements for lead hazard mitigation, lead hazard control or lead hazard reduction, as applicable.
2.Such cases brought before the court shall be granted an accelerated hearing.
3.6.8Equal Access to Justice
The Department’s Rules and Regulations Relating to Equal Access to Justice (Part of this Title) define the process and procedures to carry out the provisions of R.I. Gen. Laws Chapter 42-92 and provide for equal access to justice for small businesses and individuals.
A.In accordance with R.I. Gen. Laws § 42-35-8, any person affected by any statutory provision administered by the Department or affected by any Rule or order of the Department and this Part, may petition the Department for a declaratory ruling as to the applicability of such statute, Rule or order. The petition shall clearly and concisely identify:
1.The precise statute, Rule, or order under which a declaratory ruling is sought;
2.How the petitioner is affected by the statute, Rule, or order; and
3.The petitioner's position on how the applicable statute, Rule, or order should be interpreted, including citations to any applicable documents or law that support the petitioner's position.
3.6.10Variance from this Part
A.A variance from compliance with one (1) or more provisions of this Part may be granted by the Department in a specific case, either upon its own motion or upon the request of an applicant, if the Department determines that a literal enforcement of the provision(s) would result in unnecessary hardship to a regulated person and that such a variance will not be contrary to the public health or public interest.
B.A request for a variance must be filed by an applicant in writing, setting forth in detail the basis upon which the request is made. The applicant must further certify that the measures taken pursuant to the variance will be as protective of public health as this Part.
C.After filing of a request for a variance with the Department, and within thirty (30) days thereafter, the Department shall notify the applicant of its approval or denial, unless the Department has indicated that additional time is needed.
D.If the applicant appeals the denial, a hearing will be scheduled in accordance with the provisions of § 3.6.11 of this Part.
E.The Department may declare any variance granted pursuant to this Section immediately null and void if the Department determines that the terms of the variance have been violated.
3.6.11Administrative Hearing and Judicial Review
A.Any person who is subject to enforcement action by the Department or who is otherwise aggrieved by a final decision of the Department has the right to request an administrative hearing to contest the action or decision, provided that no request for a hearing on an immediate compliance order issued pursuant to R.I. Gen. Laws § 23-1-21 may be made.
B.Any request for a hearing must be made in writing and must be received by the Department within thirty (30) days of service of the Department’s notice or order. Failure to make a timely request for a hearing or electing to waive such a hearing shall result in a final order of the Department.
C.If a timely request for a hearing is made, the hearing shall be conducted in accordance with the provisions of R.I. Gen. Laws Chapter 42-35 and Rules and Regulations Governing the Practices and Procedures before the Department of Health (Part of this Title).
D.Judicial review of any final decision of the Administrative Hearing Officer shall be available in accordance with R.I. Gen. Laws § 42-35-15.
3.7Communications and Correspondence
A.All inquiries and correspondence should be directed to:
3.8Interpretation and Severability
The provisions of this Part shall be liberally construed and shall be held to be in addition to, and not in substitution for or a limitation of, the provisions of any other Regulation or law. If any provision or part thereof of this Part or application thereof to any person or circumstance is held unconstitutional or otherwise invalid, the remainder of this Part and the application of such provisions to any other persons or circumstances other than those to which it is held invalid shall not be affected thereby.
|Title||216||Department of Health|
|Part||3||Lead Poisoning Prevention (216-RICR-50-15-3)|
|Type of Filing||Periodic Refile|
R.I. Gen. Laws Chapter 23-24.6
Purpose and Reason:
This rule is being refiled by the agency pursuant to R.I. Gen. Laws § 42-35-4.1. No changes were made to the text of this rule.