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[HISTORY: Adopted by the Common Council of the City of Buffalo 10-2-1990, effective 10-16-1990; amended in its entirety 12-12-1995, effective 12-12-1995. Subsequent amendments noted where applicable.]
In this chapter, certain words, terms and phrases and their derivatives shall be construed and given the meanings specified below:
ABATE/ABATEMENT
The appropriate reduction of, removal of, enclosure of or encapsulation of lead-based paint followed by thorough cleanup and post cleanup treatment of the surfaces and sources that promote exposure resulting in the possibility of lead toxicity or poisoning.
APPROVED
Meets criteria established by the Environmental Protection Agency, the Department of Housing and Urban Development, the State of New York, or by the Commissioner of Permit and Inspection Services or his/her designee.
[Amended 12-9-2003, effective 12-19-2003]
CHILD/CHILDREN
A person under age six.
COMMISSIONER
The Commissioner of Permit and Inspection Services or his/her designee.
[Amended 12-9-2003, effective 12-19-2003]
DEPARTMENT
The Department of Permit and Inspection Services.
[Amended 12-9-2003, effective 12-19-2003]
ELEVATED BLOOD LEAD (EBL)
Excessive absorption of lead in the blood in concentrations defined as an "elevated blood lead level" in children by the Center of Disease Control (CDC) of the United States Department of Health and Human Services, as that definition may be revised in the future by the CDC. A copy of the most recent version of the CDC document, Preventing Lead Poisoning in Young Children, shall be kept on file at the City Clerk's Office.
INSPECTION
A survey of a property, conducted by the Commissioner to determine the presence of a lead-based paint hazard or lead dust.
[Amended 12-26-1995, effective 1-8-1996]
LABORATORY ANALYSIS
Quantitative analysis of suspect materials for lead content by Atomic Absorption Spectroscopy (AAS). The analysis shall be conducted by a laboratory approved under the New York State Department of Health, Environmental Laboratory Approval Program (ELAP).
LEAD-BASED PAINT HAZARD
The presence of lead-based paint found on the interior or exterior surfaces of any property that is easily accessible to a child or that is cracking, peeling, chipping, blistering or flaking or is in an otherwise deteriorated condition or that is chalking so that the lead dust generated therefrom is determined by the commissioner to pose a hazard, or that is present on surfaces defined as woodwork or wood trim, based on one or more of the following descriptions:
A. 
Reading of the X-RF analyzer or comparable approved sampling or testing technique taken during an inspection which indicates a lead content greater than or equal to one milligram per centimeter squared (1 mg/cm2).
B. 
Laboratory analysis of paint samples taken during the inspection indicating more than 0.5% lead by weight.
C. 
Laboratory analysis of dust samples taken during the inspection which indicate the existence of lead dust.
D. 
Laboratory analysis of paint samples taken during the inspection indicating a lead content greater than or equal to one milligram per square centimeter.
LEAD-BASED PAINT VIOLATION
The violation of any law concerning lead-based paint abatement or a violation of the provisions of this chapter.
[Amended 12-26-1995, effective 1-8-1996]
LEAD DUST
Dust containing lead generated by the deterioration of lead-based paint or by environmental factors in excess of the following levels:
A. 
Floors: 100 micro-grams of lead per square foot (100 ug/sq. ft.).
[Amended 12-26-1995, effective 1-8-1996]
B. 
Windows sills: 500 micrograms of lead per square foot (500 ug/sq. ft.).
C. 
Window wells: 800 micrograms of lead per square (800 ug/sq.ft.).
OWNER
Any person, firm, corporation, guardian, conservator, receiver, trustee, executor or other judicial officer who, alone or jointly or severally with others, owns, holds, or controls the whole or any part of the freehold or leasehold title to any property, with or without accompanying actual possession thereof, and shall include in addition to the holder of legal title, any vendee in possession thereof, but shall not include a mortgagee or an owner of a reversionary interest under a ground rent lease. In the case of a toy, appliance, item of furniture or other household item which is the property of a tenant, the term "owner" shall mean the tenant for the sole purpose of the abatement of a lead-based paint violation existing thereon.
SECONDARY RESIDENCE
A caretaker's home, day-care center or other dwelling, institution or property situated in the City of Buffalo frequented by an EBL child.
[Amended 12-26-1995, effective 1-8-1996]
SURFACE THAT IS EASILY ACCESSIBLE TO A CHILD
The interior, exterior or other surface of a dwelling or secondary residence that presents a potential biting surface (up to five feet in height and up to four inches in depth) to a child.
VARIANCE
The process for obtaining relief from the provisions of this chapter. Relief shall be based on an application to the department detailing procedures that meet or exceed the safety and hazard reduction provisions of this chapter.
WOODWORK or WOOD TRIM
All wooden or metal interior fittings or ornamentation, such as moldings, doors, staircases and window sashes and trim, and all such exterior surfaces easily accessible to a child.
A. 
In the event that a child has been identified as having an elevated blood lead (EBL) level, the Commissioner may conduct an environmental inspection of the child's dwelling and/or secondary residence. If a lead-based paint violation is found, the Commissioner shall issue a notice requiring the abatement of the violation by the owner in conformance with this chapter.
B. 
A notice shall also be referred to the Erie County Childhood Lead Poisoning Prevention Office and the Erie County Health Department.
A. 
In the event that the Commissioner determines the existence of a lead-based paint violation, the Commissioner shall notify the owner of the property of the existence of the lead-based paint violation and order the abatement of such violation within a specified time of the receipt of the notice, not to exceed 30 days unless otherwise ordered by the Commissioner. Such violations shall be abated in conformance with the standards set forth in § 261-4.
B. 
To determine the existence of a lead-based paint violation, the Commissioner may conduct an inspection of the property, including common areas of multiple-family dwellings.
[Amended 12-26-1995, effective 1-8-1996]
C. 
In the event that the inspection results in the determination that lead dust is present in any dwelling or secondary residence but that a lead-based paint violation does not exist, the Commissioner may require that the dwelling or secondary residence be cleaned in conformance with § 261-4B(6).
[Amended 12-26-1995, effective 1-8-1996]
The Commissioner shall be authorized to promulgate new regulations covering standards for abatement and to make recommendations to the Council regarding supplements to other sections and/or the addition of new sections to this chapter. The minimum mandatory standards for every abatement of a lead-based paint violation, whether or not that abatement is being carried out in response to a notice issued by the Commissioner, an agency of government, a court or voluntarily, are as follows:
A. 
Posting of dwelling or secondary residence under abatement.
(1) 
No person engaged in the abatement of a lead-based paint violation shall fail to post twenty-inch-by-fourteen-inch caution signs immediately inside and outside the entrances and exits of a dwelling or secondary residence under abatement. Such signs shall be conspicuously placed and shall inform persons entering or exiting the property that an abatement of a lead-based paint hazard will be or is being performed. The sign shall include the phrase "Danger Lead Hazard Keep out" in bold red lettering at least two inches high. The date of sign placement and start date for lead abatement shall be indicated in bold letters at least one inch high, the telephone number and name of persons to contact in case of emergency at least 1/2 inch high.
(2) 
Except in emergency situations, any person engaged in the abatement of a lead-based paint violation shall post signs and provide written notification to occupants of the dwelling under abatement and adjacent dwellings at least three days in advance of commencing the abatement project.
(3) 
Such signs shall remain posted until the Commissioner issues a written notice in conformance with § 261-5C to the owner.
(4) 
Signs shall conform to the United States Department of Labor Occupational Safety and Health Administration (OSHA) language requirements.
B. 
Methods of abatement. Abatement of a lead-based paint violation shall include all of the following: removal of lead-based paint, encapsulation of surfaces containing lead-based paint with approved systems/products, enclosure of surfaces containing lead-based paint with approved system/products or replacement of surfaces containing lead-based paint; thorough cleanup; and post-cleanup treatment of surfaces, including floors. Abatement must be carried out in conformance with the following:
(1) 
General.
(a) 
If the surface requiring abatement is subject to a Buffalo City Code violation or is found to be in violation of the Buffalo City Code, the violation must be corrected prior to the abatement of the lead-based paint violation, unless the Commissioner determines that the correction of the violation is more appropriate after the abatement process.
(b) 
Work shall be done in progression through the dwelling or secondary residence beginning with the area farthest from the entrance. In a multistory dwelling or secondary residence, work shall begin on the uppermost floor in the area farthest from the stairway.
(c) 
Furnishings, including carpeting, must be removed from each room or area as it is prepared for abatement. Those furnishings that cannot be moved (e.g., built-in furniture) must be covered with plastic at least six mils thick and sealed with tape. Attached wall-to-wall carpeting must be High Efficiency Particle Accumulator (HEPA) vacuumed, then covered with half-inch plywood and then covered with two layers of six mils plastic whose combined thickness is 12 mils and sealed with fiber mesh duct tape. Furnishings should be thoroughly cleaned to remove lead dust before returning them to a room that has undergone abatement.
(d) 
Each area that is to be abated shall be contained with plastic at least six mils thick and tape prior to abatement in order to contain the lead dust and abatement residue. Where the containment is accessible to the public or residents of the dwelling, the work area shall be secured by utilizing hardball construction (two by four studding 16 inches on center covered with at minimum 1/2 inch cdx plywood).
(e) 
Sanding and use of an open flame torch and chemical strippers containing methylene chloride are prohibited abatement techniques. Methylene-chloride-based strippers may be used, if necessary, in small quantities as a final touch-up method.
(f) 
All cabinets, closets and drawers must be sealed with tape so as to prevent contamination by lead dust and/or lead particles.
(g) 
In the case of a rental property, the tenant is responsible for the removal of all ingestibles from any room or area under abatement prior to the commencement of the abatement.
(h) 
The entire floor of the work area shall be covered with two layers of six mils plastic whose combined thickness must be at least 12 mils thick or one layer of reinforced plastic which is at least six mils thick and all seams must be sealed with fiber mesh duct tape and all edges secured with such tape and staples.
(i) 
All lead-based paint abated surfaces must be inspected by the Commissioner prior to the painting or coating of such surfaces. Such inspections will be completed within a reasonable time frame.
(2) 
Walls/ceilings.
(a) 
If, on a wall or ceiling, a lead-based paint hazard is localized, only the defective area must be scraped and repaired to create a smooth surface. The entire wall or ceiling (not simply the defective area) must then be repainted with an approved encapsulant product after passing a departmental inspection in conformance with Subsection B(1)(i) above and performing a cleanup in conformance with Subsection B(6) below.
(b) 
If the wall or ceiling condition is determined by the Commissioner to be unsuitable for repainting with an elastomeric coating or other approved encapsulant, covering with fiberglass, vinyl, Sheetrock and/or an approved type of paneling or other approved covering which seals the seams and edges will be satisfactory.
(3) 
Woodwork and wood trim.
(a) 
No person shall abate woodwork and wood trim except by the following approved methods. The approved methods are replacement, encapsulation with an approved system or enclosure with an approved system with sealed or caulked seams and/or paint removal using a heat gun or chemical strippers not containing methylene chloride. Methylene-chloride-based strippers may be used, if necessary, in small quantities as a final touch-up method. Off-site chemical stripping of woodwork or wood trim are also acceptable.
(b) 
No person shall paint any lead-based paint abated surface with paint containing less than six-hundredths of one percent (0.06%) lead in the final dried state until passing a departmental inspection in conformance with Subsection B(1)(i) above and performing a cleanup in conformance with Subsection B(6) below.
(4) 
Windows.
(a) 
No person shall abate a window except by the following approved methods. Approved methods are replacement window units and/or removal of lead-based paint by use of a heat gun or chemical strippers not containing methylene chloride. Methylene-chloride-based strippers may be used, if necessary, in small quantities as a final touch-up method. Replacement window slides may be used on sides of the existing frame.
(b) 
Windows must be completely abated, including inside, outside and sides of sashes; window frames must be abated to the outside edge of the frame, including slides, sash guides and window wells.
(c) 
No person shall paint any lead-based paint abated surface with paint containing less than six-hundredths of one percent (0.06%) lead in the final dried state until passing a departmental inspection in conformance with Subsection B(1)(i) above and performing a cleanup in conformance with Subsection B(6) below.
(5) 
Floors.
(a) 
No person shall abate floors coated with lead-based paint without using an approved enclosure system such as vinyl tile or linoleum flooring applied over permanently installed subflooring or by complete removal of paint (paint removal shall conform to the method described within this chapter). Upon written request from the owner, the Commissioner may consider other appropriate means of abating floor surfaces.
(b) 
After cleanup of the entire work area in conformance with Subsection B(6) below, all applicable abated floors, stair treads and risers must be sealed using polyurethane, deck enamel or an approved equivalent.
(c) 
Floors already covered with intact vinyl tile, linoleum flooring or the equivalent need only be cleaned in conformance with Subsection B(6) below.
(6) 
Cleanup.
(a) 
At the end of each workday, rooms or areas in which abatement is incomplete shall be thoroughly cleaned in conformance with this subsection or properly sealed from the remainder of the dwelling or secondary residence.
(b) 
Before unsealing each room or area, it should be thoroughly cleaned, inspected by the Department within a reasonable time frame, surfaces recoated and then cleaned again. Once a room or area has received cleanup, it should not be reentered by workmen.
(c) 
At a minimum, the first cleanup should consist of a thorough HEPA vacuuming of all surfaces, including woodwork and wood trim, walls, ceiling, windows and window wells and floors, followed by a high-phosphate wash and a second HEPA vacuuming. After repainting or coating walls, woodwork and wood trim, ceilings, windows and floors, the cleanup process should be repeated.
(d) 
Use of an ordinary household vacuum for cleanup of abatement debris is prohibited. Sweeping should be limited to preliminary cleanings only.
(e) 
All sponges, rags, mopheads and other materials used in cleanup must be properly disposed of along with other abatement debris.
(7) 
Presence of occupants during abatement.
(a) 
The contractor shall instruct the occupants of the dwelling of the health hazards associated with the abatement procedures, in writing, in compliance with New York State regulations or as otherwise approved by the Commissioner.
(b) 
Persons under the age of 12 and pregnant women are specifically prohibited from entering and/or remaining in a dwelling at any time during the abatement process, including times when work is not in progress. These persons shall not return to the dwelling until such time as the abatement has been completed in a satisfactory manner pursuant to § 261-5 of this chapter.
(c) 
Access to units. The contractor shall not allow anyone access to the areas under containment unless they comply with requirements as stated in § 261-8.
(d) 
Tenant notice. Tenants of the unit to be abated shall be notified, in writing, seven days prior to the start of the abatement.
(8) 
Safety of workers.
(a) 
No person shall carry out abatement activities unless he/she complies with all applicable federal, state and local laws and/or regulations related to safety in the workplace.
(9) 
Disposal of abatement waste.
(a) 
Disposal of waste generated in the course of the abatement process shall be in compliance with federal and state standards for disposal.
(b) 
Lead-abatement waste shall be transported and disposed of in a manner to prevent lead from becoming airborne.
(c) 
If disposal of lead waste is within the State of New York, disposal facilities authorized for that purpose shall be used.
(d) 
In no event shall such waste be disposed of through regular residential or commercial trash collection.
(10) 
Exemptions.
(a) 
The Commissioner may, on a case-by-case basis, approve an alternative procedure or variance for abatement of a lead-based paint violation, provided that the owner submits a written description of the alternative procedure to the Commissioner and demonstrates to the satisfaction of the Commissioner that compliance with this chapter is not practical or feasible or that the proposed alternative procedure provides the equivalent control and removal. The Commissioner, following his/her review, may approve an alternative procedure if he/she determines that it will minimize the emissions of lead into the environment.
A. 
The Commissioner may inspect any dwelling or secondary residence at any time during the abatement to determine compliance with abatement standards.
B. 
Follow-up inspection.
(1) 
When the abatement has been completed, a follow-up environmental inspection shall be performed to determine if the abatement has been completed in conformance with this chapter. This determination shall be made based on the following:
(a) 
Visual inspection to ensure that abatement activities have been completed in accordance with § 261-4 of this chapter.
(b) 
Any other method prescribed or requested by the Inspector.
[Amended 12-26-1995, effective 1-8-1996]
(2) 
If upon inspection it is disclosed that the abatement has not been carried out in conformance with this chapter, further abatement action may be required.
C. 
If abatement is determined to have been in compliance with any notice to abate and in conformance with this chapter, the Commissioner shall issue a written certification to the owner that the lead-based paint violation notice has been abated. The written certification shall be permanently filed with the Commissioner. Such certification shall not preclude the Commissioner from issuing future notices of lead-based paint violations against the same dwelling or residence in accordance with this chapter.
D. 
At the conclusion of an abatement performed under proper permit from the City of Buffalo, the final sign-off of the permit by the proper authority shall indicate that, to the best of the Commissioner's ability to determine, the abatement was performed in conformance with this chapter.
The issuance of a certification by the Commissioner to an owner that a lead-based paint violation notice has been abated does not subject the Commissioner or the Department to any claims for liability if the issuance of the statement was made in good faith.
A. 
Any violation of this chapter shall be deemed a violation of the Buffalo City Housing Code[1] and violators shall be subject to any and all penalties set forth in § 1-15.
[1]
Editor's Note: See Ch. 242, Housing Standards.
B. 
Any violation that remains unabated shall subject the owner to prosecution in Buffalo City Court, Housing Part.
C. 
The Commissioner may determine that the severity of the condition categorizes the building as a public nuisance and may direct that the nuisance be abated in accordance with this chapter.
A. 
All workers, supervisors, contractors and inspectors engaged in the physical work of lead-based paint abatement or testing procedures shall be certified/licensed as required by applicable law or by a certified lead abatement or inspection training program which meets or exceeds United States Environmental Protection Agency requirements.
B. 
Contractors and inspectors shall maintain certification/licensure specific to the discipline being performed.
The provisions of this chapter are hereby declared severable. If any word, phrase, clause, sentence, paragraph, section or part in or of this chapter or the application thereof to any person, circumstance or thing is declared invalid for any reason whatsoever, the remaining provisions and the application of such provisions to other persons, circumstances or things shall not be affected thereby but shall remain in full force and effect, the Council hereby declaring that it would have ordained the remaining provisions of this chapter without the word, phrase, clause, sentence, paragraph, section or part, or the application thereof, so held invalid.