BILL NUMBER: S122A

SPONSOR: CLEARE
 
TITLE OF BILL:

An act directing the departments of environmental conservation and
health to establish environmental standards for ambient lead and lead
contamination in soils; and providing for the repeal of such provisions
upon expiration thereof

 
PURPOSE OR GENERAL IDEA OF BILL:

The purpose of this bill is to protect the public health, especially
that of children, by directing the Department of Environmental Conserva-
tion and Department of Health to propose stricter standards for lead
dust contamination in soil and on floors and windowsills.

 
SUMMARY OF PROVISIONS:

Section 1 provides legislative findings, including a) that there is a
need to establish state standards for lead dust contamination in soil,
and on floors and windowsills and b) that current regulatory standards
              

are inadequate to protect the public and especially children. The
Commissioner of Environmental Conservation in consultation with the
Commissioner of Health are deemed responsible to adopt effective protec-
tive standards for lead dust contamination to fully protective chil-
dren's health.

Section 2 requires the Department of Environmental Conservation and
Department of Health to adopt and promulgate regulations within 180 days
of the act taking effect for new standards that are sufficiently protec-
tive of human health, which shall in no event be less stringent than the
standards set forth in 40 CFR Part 745, as of January 13, 2025.

Section 3 provides that the act shall take effect on the ninetieth day
after it shall have become law and enacts a repeal of the law one year
after following enactment.

 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION:

The amended bill clarifies how the new standards will be promulgated and
removes a report required to be provided to the legislature.

 
JUSTIFICATION:

This bill is a meaningful step in protecting the public, and especially
children, from the harmful effects of exposure to dust-lead hazards.  It
directs the Department of Environmental Conservation and Department of
Health to establish more rigorous contamination standards. Over the last
decade there have been a number of lawsuits and research efforts that
have substantially expanded the legal and scientific basis of our under-
standing of lead contamination. Taking these developments into consider-
ation, DEC and DoH can bring New York to the forefront of protective
standards for the public health of its citizens, especially those living
in vulnerable areas and those who are too young to protect themselves.

In 2012, the federal Center for Disease Control (CDC) stated that there
is no known safe blood lead level for Children under six 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 previously targeted by the federal Environmental
Protection Agency as a safe blood lead level for- children. In October
2021 the CDC updated the lead blood level reference value (BLRV) to 3.5
micrograms per deciliter. This figure is used to identify children with
lead blood levels that are in need of remedial action.

In December 2017, the United States Court of Appeals for the Ninth
Circuit granted a petition for mandamus against the Environmental
Protection Agency which had been brought by a coalition of environmental
advocates and organizations (In Re a Community Voice v.  US Environ-
mental Protection Agency, 878 F3d 779). The court ruled that the EPA had
a duty under the federal Toxic Substance Control Act and the federal
"Paint Hazard Act" to update the standards for lead-based paint and
dust-lead hazards.

In 2019 the EPA adopted new standards for dust-lead hazards: 10
micrograms/sqft for floors and 100 micrograms/sqft for windows. (40 CFR
Part 745, Fed. Reg. Vol. 84, No. 131, effective January 6, 2020).  The
EPA took no action with respect to dust-lead hazards in lead-contaminat-
ed soil or lead dust emissions in ambient air.

Again, on June 24, 2020, the EPA announced a proposal to reduce the
amount of lead that can remain in dust on floors and windowsills after
lead removal activities to protect children from the harmful effects of
lead exposure. The agency proposed to lower the dust-lead post abatement
(clearance) levels of lead that can remain on floors and windowsills
from 40 micrograms (1)0 of lead in dust per square foot (ft2) to 10 pg/f
t2 for floor dust and from 250 pg/ft2 to 100 pg/f t2 for windowsill
dust. (85 Fed. Reg. 37810 6/24/20).

In 2021 the Court of Appeals for the Ninth Circuit remanded the 2019 EPA
rule and directed the agency to further update its rules on dust-lead
hazards and dust-lead clearance levels. The court noted that the EPA had
not yet taken action on soil-lead hazard standards.  (in Re A Community
Voice, 997 F3d 983) In July 2023 the EPA proposed new rules for dust-
lead hazard standards and dust-lead clearance levels. The new standard
for dust-lead hazards was any reportable level greater than zero, as
analyzed by any laboratory recognized by the EPA's National Lead Labora-
tory Accreditation Program.

The new standard for dust-lead clearance levels, which was de-coupled
from the dust-lead hazard standard, consisted of numerical standards and
added window troughs: three micrograms/sqft for floors; twenty
micrograms/sqft for windowsills; and twenty-five micrograms/sqft for
window troughs.

The greater than zero) has been criticized by a number of health depart-
ments and other organizations as too difficult to achieve in some cases.

They also argue that it causes confusion because it may result in
different results in different areas and is not the same as the dust-
lead clearance level.

New York should adopt the same EPA numerical standards for both dust-
lead hazards and dust-lead clearance levels to avoid confusion between
the two proposed EPA standards.

As noted, the EPA took no action with respect soil-lead hazard, which is
defined in the EPA regulations 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), 66 Fed Reg. 1237 1/5/2001).

This standard, adopted in 2001, is completely out of date and does not
reflect the CDC recommendation for lowering the reference level of lead
in children's blood levels that would trigger a public health response.

The EPA has not made any changes in the National Ambient Air Quality
Standards for Lead (NAAQS) since November 12, 2008 (Fed. Reg. Vol.73,
No. 219). The 2008 revision reduced the acceptable lead level of ambient
air quality to .15 micrograms per meter cubed, "to provide requisite
protection of public health and welfare," four years before the Centers
for Disease Control lowered the hazardous blood level reference value
for children from 10 micrograms per deciliter to 5 micrograms per decil-
iter in 2012 (now 3.5 micrograms per deciliter).

By directing the Department of Environmental Conservation and the
Department of Health to review these federal developments and create
standards which reflect the best interests of our communities, New York
will become an immediate leader in public health standards as they
relate to lead contamination.

 
PRIOR LEGISLATIVE HISTORY:

2021/2022: A5541-B (vetoed) 2023/2024: a8452a

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law and shall expire one year after such effective date when
upon such date the provisions of this act shall be repealed.  Effective
immediately, the addition, amendment and/or repeal of any rule or regu-
lation necessary for the implementation of this act on its effective
date are authorized to be made and completed on or before such date.