Mass. Gen. Laws ch. 111 § 197

Current through Chapters 1 to 249 and Chapters 253 to 255 of the 2024 Legislative Session

Section 111:197 - Duty of residential premises owners; interim control measures; removal or cover of offending paint, soil, or material

(a) Whenever a child under six years of age resides in any premises in which any paint, plaster or other accessible structural material contains dangerous levels of lead, the owner shall abate or contain said paint, plaster or other accessible structural materials in accordance with the requirements of subsection (b) or (c). Except as provided in section one hundred and ninety-seven D, whenever any such premises containing said dangerous levels of lead undergoes a change of ownership and as a result a child under six years of age will become or will continue to be a resident therein, the new owner shall have ninety days to contain or abate said paint, plaster or other accessible structural material as required by this section, so as to make the premises in compliance with the provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive.

(b) Owners shall be eligible to contain and control paint, plaster or other accessible structural materials containing dangerous levels of lead on an interim basis until achieving full compliance as set out in subsection (c), in accordance with measures defined in an emergency lead management plan, and a letter of interim control issued by a licensed inspector pursuant thereto. If, in the determination of a licensed inspector, the condition of such premises make it ineligible for interim control under an emergency lead management plan, the owner shall be required to satisfy the requirements of subsection (c) and receive a letter of full compliance, provided that secured lending institutions shall be governed by the provisions of section one hundred and ninety-seven D.

The director shall promulgate regulations to establish a program of interim control measures that are eligible to be used in emergency lead management plans to address urgent lead paint hazards that include, but are not limited to, paint containing a dangerous level of lead that is chipping, peeling or flaking, and highly lead-contaminated dust. Interim control measures shall be used to address said urgent lead hazards until a letter of full compliance has been obtained pursuant to subsection (c), and all emergency lead management plans shall include full compliance in accord with subsection (c) as their ultimate goal. Only in the instance of a waiver by the department, shall an owner be eligible for an emergency lead management plan and letter of interim control for premises in which a lead-poisoned child resides. The owner of premises containing a dangerous level of lead may obtain approval for an emergency lead management plan from an inspector licensed under section one hundred and ninety-seven B after an inspection and assessment of the premises by said inspector, and for a letter of interim control by such a licensed inspector certifying compliance with the emergency lead management plan and regulations promulgated by the director under this section. Said regulations shall, at minimum, include the following:

(1) a determination by the inspector regarding the need to correct structural defects, including roof and plumbing leaks, and deteriorating windows, which may cause damage to surfaces containing dangerous levels of lead, and a requirement that any such defects found be repaired or replaced, as needed, to prevent damage to interior surfaces containing lead;

(2) abatement or containment of all peeling paint and installing safeguards to protect intact paint, plaster or other accessible structural material on both interior and exterior surfaces and fixtures;

(3) removal of lead dust using specified methods, unless the initial inspection indicates that there is no peeling paint and that surface dust levels meet specified standards;

(4) provision of educational materials prepared by the department to tenants occupying the affected premises, as well as compliance with the tenant notification provisions of section one hundred and ninety-seven A;

(5) correction of any other lead paint condition which the director determines poses an urgent risk of lead poisoning to children under age six;

(6) requirement that all interim control work performed under this section comply with the requirements for use of licensed deleading contractors or for the abatement and containment activities by property owners contained in the regulations promulgated by the director pursuant to subsection (d); and

(7) a final inspection by a licensed inspector, including testing to ensure that surface dust levels are within specified limits for particular surfaces.

A letter of interim control shall expire at the end of one year from the date of its issuance, and may be renewed once, for an additional one-year period, upon reinspection and recertification pursuant to this section by a licensed lead inspector, in accordance with regulations promulgated by the director. The revocation and subsequent recertification of a letter of interim control shall not extend the initial letter of interim control beyond the time period allowed by this section. An emergency lead management plan and letter of interim control shall be issued for the premises, not its owner, and shall remain in effect should ownership of the premises be transferred during the existence of the emergency lead management plan and the letter of interim control. A subsequent owner of premises under a pre-existing emergency lead management plan and letter of interim control shall be responsible for complying with the terms of said plan and letter. In no case shall premises be subject to an emergency lead management plan and letter of interim control for longer than two years.

A letter of interim control shall be revocable by operation of law upon occurrence of either of the following conditions: (i) expiration by its own term; (ii) upon the failure of the owner to bring the unit into compliance, or keep the unit in compliance, as required by this paragraph. If a licensed lead inspector finds that the premises contains peeling paint or otherwise fails to meet the standards of the emergency lead management plan and the letter of interim control, said inspector shall notify the owner of the premises, the director, the local code enforcement agency or board of health of said failure. The owner shall bring the premises into compliance with the emergency lead management plan and the letter of interim control within fourteen days of being notified to do so by the director, local code enforcement agency or board of health or licensed lead inspector, or within such greater period of time as may be allowed by the director, local code enforcement agency or board of health, or by judicial order.

No claim for strict liability may be brought under section one hundred and ninety-nine against the owner by an occupant or former occupant of premises for which a letter of interim control has been issued for damages caused by exposure to dangerous levels of lead during such period that the letter of interim control is in effect or within the fourteen day period after being notified to bring the premises into compliance discussed in the previous paragraph. During the period a letter of interim control is in effect, such owner shall take reasonable care to ensure that the premises are in compliance with the requirements of this subsection and the letter of interim control, and shall be liable for all damages caused by his breach of that duty of reasonable care.

(c) Owners may proceed either directly, or at the end of the process of interim control set out in a poisoning prevention management plan approved pursuant to subsection (b), to abate or contain paint, plaster or other accessible structural material in a particular premises in order to achieve full compliance. Prior to beginning such work, the owner or his agent shall notify the occupants of the premises, the director, the department of labor standards and the local board of health or code enforcement agency of the date on which such containment and abatement for full compliance will occur, and the method or methods that will be used. Where containment or abatement is to occur in common areas, including the exterior, all occupants of the premises shall be notified in writing.

All containment or abatement for full compliance subject to this chapter shall, pursuant to regulations promulgated by the director to ensure the safety of occupants, be performed as follows:

(1) All peeling paint, plaster or other structural material containing dangerous levels of lead, on both interior and exterior surfaces and fixtures shall be abated or contained.

(2) Intact paint, plaster or other accessible structural material containing dangerous levels of lead shall be contained or abated on door frames below the five foot level and four inches from all edges; stair rail spindles; stair treads from the lip to the riser on the bottom and four inches back from the lip on the top of the tread; doors below the five foot level and four inches from all edges; stair rails; porch railings; and all other exterior and interior surfaces and fixtures that may be readily mouthed by, or are otherwise accessible to, children. The director may, by regulation, require that in order to maintain the stability of any encapsulants used as a containing agent as part of the process to achieve full compliance, intact paint, plaster or other accessible structural material containing dangerous levels of lead be contained beyond the height of five feet and more than four inches from all edges.

(3) Peeling and intact paint, plaster or other accessible structural material containing dangerous levels of lead shall be contained or abated, on the interior and exterior surfaces of windows having sills below the five foot level when surfaces are either movable or impact on movable surfaces. Such surfaces shall include, but not be limited to, interior and exterior window sashes, window sills, and mullions; window wells and parting beads; headers on the lower side of the window that impact on the sash; and interior and exterior inner sides of the window casings that impact on the sash.

(4) Exterior paint containing dangerous levels of lead shall be contained or abated pursuant to regulations issued by the director, after consultation with the department of environmental protection specifying acceptable methods and prescribing encapsulation, shrouding or other containment methods; provided, however, that the director may ban sandblasting of exterior paint where he determines that children under six years of age are at risk of exposure to dangerous levels of lead. The use of potassium or sodium hydroxide in removing exterior lead-based paint shall be prohibited. Such regulations shall recommend appropriate methods of containment or abatement for properties listed on the state register of historic places. Local boards of health or code enforcement agencies shall enforce compliance with this regulation.

(5) Paint chips, dust and other debris created by the containment or abatement of interior or exterior paint shall be cleaned up by the person performing the containment or abatement in conformance with regulations promulgated by the director.

Upon the determination of a licensed inspector that the premises fully comply with the requirements of this subsection, said inspector shall issue a letter of full compliance for said premises. The director shall prepare one or more standard formats for letters of full compliance which may be revised from time to time as appropriate. All licensed inspectors shall use such standardized formats in issuing letters of full compliance.

Premises for which a letter of compliance has been issued prior to January first, nineteen hundred and ninety-four, pursuant to previous versions of this section and regulations promulgated thereunder, shall be deemed to be in full compliance with the provisions of this subsection, and shall be deemed to have been issued a letter of full compliance in accord with this subsection for all purposes of sections one hundred and eighty-nine A through one hundred and ninety-nine B, inclusive. Owners of such premises shall not be required to comply with any additional requirements of this subsection or of rules and regulations promulgated pursuant to said sections.

If a tenant believes that the premises fail to meet the standards of the letter of compliance or a licensed lead inspector finds that the premises fails to meet the standards of the letter of full compliance, said tenant or inspector shall notify the owner of the premises, the director, the local code enforcement agency or board of health of said failure. The owner shall ensure that the condition of the premises meets the standards required by the letter of full compliance within fourteen days of being notified to do so by the director, local code enforcement agency or board of health or licensed lead inspector, or within such greater period of time as may be allowed by the director, local code enforcement agency or board of health, or by judicial order.

No claim for strict liability may be brought under section one hundred and ninety-nine against an owner by an occupant or former occupant of premises for which a letter of full compliance has been issued and is in effect in accordance with this subsection.

(d) Containment or abatement, and daily and final cleanup of paint, plaster or other accessible structural material required under this section, whether undertaken for full compliance or as an interim measure under an emergency lead management plan, shall be conducted only by a contractor licensed by the department of labor standards, except that the owner of premises or the owner's agent, acting pursuant to regulations promulgated by the director specifying the conditions under which owners or their agents may undertake such containment or abatement, need not be licensed to engage in such activities. Any person who is not licensed may undertake containment or abatement activities only after successful completion of a course of instruction approved by the commissioner in consultation with the director detailing the proper methods and health hazards of containment or abatement and final cleanup of paint, plaster or other accessible structural material; provided further, that all containment or abatement activities by an unlicensed person shall be inspected and approved after completion by a licensed inspector. Such regulations shall include, but not be limited to, the removal of doors, windows, woodwork or other elements or fixtures containing dangerous levels of lead and shall address the presence of residents during deleading and cleanup; provided, that in no instance shall paint containing such dangerous levels of lead be stripped or scraped from the doors, windows, woodwork, elements or fixtures while residents are on the premises. The director shall make available to the public standard guidelines relative to owner deleading activities made permissible pursuant to this section.

(e) The director may waive or alter any requirements of this section concerning the required containment or abatement of paint, plaster or other accessible structural material on specified surfaces and fixtures or specified substrates upon a finding by the director that no substantial risk is posed to the health of children under six years of age by the continued presence of such paint, plaster or other accessible structural material.

(f) Under no circumstances shall repainting with a non-lead based paint, without containment or abatement of the offending paint, plaster or other accessible structural material, constitute compliance with either subsection (b) or (c).

(g) No person shall occupy the premises while containment or abatement of dangerous levels of lead paint, plaster or other accessible structural materials is taking place and until such time as the premises has been cleaned up and found to be in compliance with this section, except pursuant to regulations issued by the director. Such regulations shall provide that persons may occupy the premises pursuant to specified conditions established on a case-by-case basis by the director or local board of health or code enforcement agency upon a finding that such occupancy will not endanger or materially impair the health or the well-being of any occupant; provided, however, that pregnant women and children under the age of six are not permitted to occupy the dwelling unit during deleading activities.

(h) Any owner undertaking to abate or contain dangerous levels of lead in any dwelling unit may, at the owner's option, reasonably delay the commencement of the tenancy until a letter of compliance or interim control certificate has been issued; provided, that no duly executed lease exists between owner and tenant; and provided, further, that no such delay shall exceed thirty days. During any such period of delay of occupancy the prospective tenant shall bear any living expenses. Should the owner decide to bring any residential premises into compliance with the provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, while a tenant is occupying a dwelling unit, the owner shall have the right to move the tenant to a substitute dwelling unit upon reasonable notice; provided, however, that the owner pays reasonable moving expenses and any use and occupancy charges for a substitute dwelling unit which exceed the rent for the vacated dwelling unit for which the tenant remains responsible. A substitute dwelling unit shall be defined as one that does not cause undue economic or personal hardship to the tenant. If the tenant fails to accept the substitute dwelling unit selected by the owner during such period of time reasonably required to bring the vacated dwelling unit into compliance with the provisions of sections one hundred and eighty-nine A to one hundred and ninety-nine B, inclusive, the owner shall have no obligation to reimburse the tenant for any expense or inconvenience other than moving expenses and any use and occupancy charges for the substitute dwelling unit selected by the owner which may exceed the rent for the vacated dwelling unit.

Mass. Gen. Laws ch. 111, § 197

Amended by Acts 2011, c. 3,§ 116, eff. 6/9/2011.