BILL NUMBER: S914

SPONSOR: BENJAMIN
 
TITLE OF BILL:

An act to amend the environmental conservation law and the public health
law, in relation to establishing environmental standards for ambient
lead and lead contamination in soils and on floors and window sills

 
PURPOSE:

To protect the public health by enacting stricter environmental stand-
ards for ambient lead and for the prevention of lead contamination of
soils and on floors and window sills.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill establishes legislative intent.

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.

 
EXISTING LAW:

 
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 because the federal Environ-
mental Protection Agency has not promulgated stricter standards 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 December 2017, the United States Court of Appeals for the Ninth
Circuit granted a petition for mandamus against the federal Environ-
mental Protection Agency which had been brought by a coalition of envi-
ronmental advocates and organizations (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 had not heard anything
further about their request.

The Court of Appeals ruled 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 petition-
ers' 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."

Again, on June 17, 2020, the EPA announced a proposal to reduce the
amount of lead that can remain in dust on floors and window sills after
lead removal activities to protect children from the harmful effects of
lead exposure. The agency's proposal would again lower the amount of
lead that can remain in dust on floors and window sills after lead
removal activities from 40 micrograms (Rg) of lead in dust per square
foot (ft2) to 10 Ág/ft2 for floor dust and from 250 pg/ ft2 to 100
pg/ft2 for window sill dust. (85 Fed. Reg. 37810 6/24/20)

Previously, in August 2018 Earthjustice, an environmental advocacy
organization, filed comments regarding the proposed rules on behalf of
the petitioners. 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 micrograrns/square foot on floors
and 40 micrograms/ square foot on window sills, and that clearance stan-
dards 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 environmental
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
acceptable level of lead exposure from 10 micrograms/ deciliter to 5
micrograms/deciliter, as recommended by the CDC.

 
LEGISLATIVE HISTORY:

2019-20: S5615/A7635

 
FISCAL IMPLICATIONS:

none

 
LOCAL FISCAL IMPLICATIONS:

none

 
EFFECTIVE DATE:
Ninety days after passage.