[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:
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.
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]
A person under age six.
The Commissioner of Permit and Inspection Services or his/her
designee.
[Amended 12-9-2003, effective 12-19-2003]
The Department of Permit and Inspection Services.
[Amended 12-9-2003, effective 12-19-2003]
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.
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]
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).
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:
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).
Laboratory analysis of paint samples taken during the inspection
indicating more than 0.5% lead by weight.
Laboratory analysis of dust samples taken during the inspection
which indicate the existence of lead dust.
Laboratory analysis of paint samples taken during the inspection
indicating a lead content greater than or equal to one milligram per
square centimeter.
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]
Dust containing lead generated by the deterioration of lead-based
paint or by environmental factors in excess of the following levels:
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.
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]
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.
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.
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.
(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:
(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.
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.
