Limit Lead in Homes

Section 2 of the bill adds a new paragraph nn to subdivision one of section 3-0301 of the environmental conservation law directing the commissioner of environmental conservation, in consultation with the commissioner of health, to adopt environmental standards and rules having the force and effect of standards to carry out the purposes of such standards, which require:

1. that areas containing lead contaminated soil shall have levels of lead contamination not greater than two hundred parts per million for residential zoned areas and one thousand parts per million for areas zoned for commercial and/or industrial development; and

2. that a lead dust hazard as defined in part 40 Code of Federal Regu- lations section 745.101 shall not be greater than 5 micrograms per square foot on floors and not greater than 40 micrograms per square foot for window sills; and that clearance standards, as defined in 40 Code of Federal Regulations 745.223, shall be set at the same levels; and

3. that the average ambient air quality standard, calculated as a roll- ing 3 month average, shall not be greater than .075 micrograms per cubic meter.

Section 3 of the bill adds a new subdivision 31 to Section 206 of the public health law directing the commissioner of health, upon request of the commissioner of environmental conservation, to consult with such commissioner on the creation and adoption of environmental standards for lead concentrations in lead contaminated soils, lead concentrations on floors and window sills, and lead concentrations in ambient air.

Section 4 of the bill states that the effective date shall be the nine- tieth day after it shall have become law, and effective immediately, the addition, amendment and/or repeal of any rule or regulation necessary for the implementation of this act on its effective date are authorized to be made and completed on or before such date.

Justification

This bill will make New York a leader in protecting the public and chil- dren from the harmful effects of exposure to dust-lead hazards. It establishes new and stricter environmental standards in New York law for ambient lead dust and lead contamination in soil and on floors and window sills. This legislation is necessary in light of the failure of the federal Environmental Protection Agency to promulgate stricter stan- dards to protect the public and children from such hazards.

In 2012 the federal Center for Disease Control (CDC) stated that there is no known safe blood lead level for children and determined that 5 micrograms per deciliter of blood would be sufficient to trigger a public health response, one-half of the level of 10 micrograms per deciliter that had been targeted by the federal environmental Protection Agency as a safe blood lead level for children.

In 2016 environmental advocates filed a petition for a writ of mandamus against the federal Environmental Protection Agency in the United States Court of Appeals for the Ninth Circuit seeking to compel the Agency to act upon a rule making petition it granted previously concerning dust- lead hazard and lead paint materials. (In Re a Community Voice v. US Environmental Protection Agency). The petitioners stated that although the EPA was mandated by Congress to issue its initial rules identifying dust lead hazards by 1992, the Agency did not identify dust lead hazards for child-occupied facilities until 2001. The EPA established standards for floors as 40 micrograms per square foot and for interior window sills as 250 micrograms per square foot, which it estimated would result in one to five percent chance of child developing a "safe" blood level of 10 micrograms per deciliter.

The petitioners further stated that although scientific research had further advanced the understanding of the dangerousness of lead, the EPA had not changed its standards. In 2009 eight of the petitioners filed an administrative petition with the EPA asking it to use its rule making authority to adequately protect children by lowering the dust-lead hazard standards to 10 micrograms per square foot for floors and 100 micrograms per square foot for window sills. The EPA granted the peti- tioners' request, but since 2009, the petitioners' request, but since 2009, the petitioners had not heard anything further about their request.

In December 2017, the Court of Appeals granted the petition for mandamus and held that under the federal Toxic Substances Control Act and the Residential Lead-based Paint Hazard Reduction Act the EPA was under a duty to update dust-lead hazard standards and lead-based paint standards in light of the obvious need and a duty under the federal Administrative Procedure Act to fully respond to the petitioners' rule making petition.

On July 2, 2018 the EPA filed a notice of proposed rule change stating that addressing childhood lead exposure was a priority (Federal Regis- ter, Vol. 83, No. 127). The EPA proposed that the dust-lead hazard stan- dards should be lowered from 40 micrograms per square foot for floors to 10 micrograms per square foot, and from 250 micrograms per square foot to 100 micrograms per square foot for window sills. The EPA took no action with respect to lead based paint "due to insufficient information to support a change."

The EPA directed that all comments about the proposed rule changes must be made by August 16, 2018. The EPA has not yet finalized the proposed changes.

In August 2018 Earthjustice, an environmental advocacy organization, filed comments regarding the proposed rules on behalf of the petition- ers. It urged the EPA to adopt lower thresholds for lead dust hazards on floors and window sills, and that the EPA should revise the soil lead hazard standards. It stated that based upon extensive research and studies, a clearance to dust-lead loading on floors below 5 micrograms/square foot and in window sills below 50 micrograms/square foot was achievable. It recommended that the EPA adopt dust-lead hazard standards to be set no higher than 5 micrograms/square foot on floors and 40 micrograms/square foot on window sills, and that clearance stand- ards must be revised to meet these levels. A similar recommendation was made on behalf of 73 individuals and environmental organizations.

This bill adopts these recommendations for floors and window sills and clearance levels.

The EPA took no action with respect soil-lead hazard, which is defined as "bare soil on residential property or on the property of a child occupied facility that contains lead equal to or exceeding 400 parts per million in a play area or average of 1,200 parts per million of bare soil in the rest of the yard based on soil samples." (40 CFR Part 745.65 (c)). Earthjustice stated that this standard, set in 2001, was long outdated and must be revised to reflect the current science. A similar recommendation was made on behalf of 73 individuals and environ- mental organizations.

This bill reduces the level of soil-lead hazard to 200 parts per million for residential zoned areas and 1,000 parts per million for areas zoned for commercial and/or industrial development

The EPA has not made any changes in the National Ambient Air Quality Standards for Lead (NAAQS) which it promulgated on November 12, 2008 (Federal Register, Vol. 73, No. 219). The EPA revised the acceptable lead level of ambient air quality to .15 micrograms per meter squared "to provide requisite protection of public health and welfare."

This bill reduces the acceptable lead level of ambient air quality to level of lead exposure from 10 micrograms/deciliter to 5 micrograms/deciliter, as recommended by the CDC.

Legislative history

New Bill.

Fiscal implications

none

Local fiscal implications

none

Effective date

Ninety days after passage.