STATE OF NEW YORK ________________________________________________________________________
7117
2021-2022 Regular Sessions
IN ASSEMBLY
April 22, 2021 ___________
Introduced by M. of A. BRONSON -- read once and referred to the Commit- tee on Labor
AN ACT to amend the labor law and the executive law, in relation to establishing the "New York state lead-safe renovation, repair and painting act"
The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:
1 Section 1. The labor law is amended by adding a new article 31-A to 2 read as follows: 3 ARTICLE 31-A 4 NEW YORK STATE LEAD-SAFE 5 RENOVATION, REPAIR AND PAINTING ACT 6 Section 925. Short title. 7 926. Legislative findings. 8 927. Definitions. 9 928. Residential property renovation. 10 § 925. Short title. This article shall be known and may be cited as 11 the "New York state lead-safe renovation, repair and painting act". 12 § 926. Legislative findings. The legislature hereby finds and declares 13 that lead poisoning of children persists as one of the most prevalent 14 and preventable environmental diseases in New York. Nearly one hundred 15 thousand children were newly identified with levels of lead in their 16 blood at five micrograms per deciliter in New York state between two 17 thousand eleven and two thousand fifteen. Medical research indicates 18 that children can suffer permanent brain damage at blood levels even 19 lower than five micrograms per deciliter, and that there is no level of 20 lead ingestion which is without adverse impact. 21 The predominant cause of lead poisoning in children is the ingestion 22 of lead dust from lead-based paint from older residences. Although New 23 York state banned the sale of lead-based paint in nineteen hundred 24 seventy, seventy-four percent of New York's housing stock was
EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10666-01-1
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1 constructed prior to nineteen hundred seventy and ten percent of New 2 York's housing was constructed between nineteen hundred seventy and 3 nineteen hundred seventy-nine while lead-based paint was still available 4 through nineteen hundred seventy-eight. New York state has both the 5 nation's greatest number (over four million units), the highest percent- 6 age (55.08%) of pre-nineteen hundred sixty and pre-nineteen hundred 7 fifty (41.0%) housing, and the oldest housing inventory among the fifty 8 states. According to the federal Environmental Protection Agency, some 9 lead painted surfaces can be found in eighty-seven percent of homes 10 constructed before nineteen hundred forty, sixty-nine percent of homes 11 constructed between nineteen hundred forty and nineteen hundred fifty- 12 nine, and twenty-four percent of homes constructed between nineteen 13 hundred sixty and nineteen hundred seventy-eight. New York state's older 14 housing stock places residents at great risk of exposure to lead 15 hazards, with low-income children living in older housing having the 16 highest risk of lead poisoning. 17 A key source of lead dust is renovation, repair, and painting work in 18 homes that contain lead-based paint. These activities exacerbate lead 19 dust levels and leave harmful dust for many years. 20 Renovation workers often unwittingly expose themselves to lead hazards 21 by using unsafe work practices that result in exposure for workers and 22 their family members. 23 The federal Environmental Protection Agency (EPA) has developed guide- 24 lines to conduct renovations in a lead-safe manner, known as the Reno- 25 vation, Repair, and Painting (RRP) rule and compliance with the RRP rule 26 is required for all contractors and landlords working in housing and 27 childcare facilities built before nineteen hundred seventy-eight. 28 However, the EPA's enforcement of this program, which includes over six 29 million homes in New York state, is minimal with only seven EPA enforce- 30 ment actions in New York in two thousand nineteen. 31 Multiple studies conducted prior to implementation of the RRP rule 32 present the harmful effects of lead dust produced from specifically 33 renovation, repair, and painting activities in homes with lead-based 34 paint. One study of children in New York in two thousand six-two thou- 35 sand seven found that fourteen percent of the children with extremely 36 high EBLLs (twenty micrograms per deciliter and above) were related to 37 renovation, repair and painting activities; all the homes linked to 38 RRP-related lead exposure were built before nineteen hundred seventy- 39 eight except one, and children with lower EBLLs (less than twenty micro- 40 grams per deciliter) were estimated to have been primarily exposed to 41 lead through RRP activities in nearly forty percent of cases. This indi- 42 cates that renovation, repair and painting activities are one of the 43 primary sources of lead exposure in young children. If these rates of 44 exposure from RRP are extrapolated to hold for the entire New York state 45 population of lead-exposed children, approximately nine thousand three 46 hundred twenty-seven children become subject to lead poisoning as a 47 result of renovation, repair, and painting activities each year. Of 48 those, two thousand four hundred eighteen children would experience 49 severely high EBLLs of twenty micrograms per deciliter or greater and 50 above. The safe work practices in the RRP rule can also protect the 51 health of renovation workers. 52 The EPA regulations provide that states can obtain delegation from the 53 federal government to manage their own lead-safe renovation programs, 54 and at least fourteen states have done so and tailored their RRP 55 programs to meet the implementation and enforcement needs of their 56 state. With the oldest housing stock in the nation, New York has an
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1 especially serious lead poisoning problem and urgently needs to seek 2 authorization for this program. Doing so will give state agencies the 3 authority to enforce existing regulations and the opportunity to 4 strengthen them in an appropriate manner. 5 § 927. Definitions. As used in this article, the following terms shall 6 have the following meanings: 7 1. "Lead-based paint" means paint or other similar surface coating 8 material containing 1.0 milligrams of lead per square centimeter or 9 greater, as determined by laboratory analysis of paint samples with all 10 layers of paint present, or by an x-ray fluorescence analyzer. If an 11 x-ray fluorescence analyzer is used, readings shall be corrected for 12 substrate bias when necessary as specified by the performance character- 13 istic sheets released by the United States environmental protection 14 agency and the United States department of housing and urban development 15 for the specific x-ray fluorescence analyzer used. X-ray fluorescence 16 readings shall be classified as positive, negative or inconclusive in 17 accordance with the most recent United States department of housing and 18 urban development guidelines for the evaluation and control of lead- 19 based paint hazards in housing and the performance characteristic sheets 20 released by the United States environmental protection agency and the 21 United States department of housing and urban development for the 22 specific x-ray fluorescence analyzer used. X-ray fluorescence readings 23 that fall within the inconclusive zone, as determined by the performance 24 characteristic sheets, shall be confirmed by laboratory analysis of 25 paint chips, results shall be reported in milligrams of lead per square 26 centimeter and the measure of such laboratory analysis shall be defini- 27 tive. If laboratory analysis is used to determine lead content, results 28 shall be reported in milligrams of lead per square centimeter. Where the 29 surface area of a paint chip sample cannot be accurately measured or if 30 an accurately measured paint chip sample cannot be removed, a laboratory 31 analysis may be reported in percent by weight. In such case, lead-based 32 paint shall mean any paint or other similar surface coating material 33 containing more than 0.009% of metallic lead, based on the non-volatile 34 content of the paint or other similar surface coating material. In the 35 event that the United States environmental protection agency or a 36 successor agency, or the United States department of housing and urban 37 development or a successor agency, or a department or agency of the 38 state of New York that has obtained applicable authorization pursuant to 39 40 CFR part 745 subpart Q or successor regulation, adopts more stringent 40 definitions of lead-based paint, such definitions shall apply for the 41 purposes of this article. 42 2. "Lead dust clearance" means mass-per-area concentrations of lead 43 less than five micrograms of lead per square foot on floors and less 44 than forty micrograms per square foot on interior window sills, 45 provided, however, that: 46 (a) The commissioner may by regulation set more stringent levels for 47 lead dust clearance in the event the commissioner determines such more 48 stringent levels are needed to identify potential lead hazards and 49 protect public health; and 50 (b) The commissioner shall by regulation adopt such more stringent 51 levels for lead dust clearance as may be set by the United States envi- 52 ronmental protection agency or the United States department of housing 53 and urban development. 54 § 928. Residential property renovation. 1. The commissioner shall 55 adopt rules and/or regulations, sufficient to satisfy the requirements 56 of 40 C.F.R. 745.326 or its successor regulation, governing:
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1 (a) pre-renovation education programs, procedures and requirements for 2 the distribution of lead hazard information to owners and occupants of 3 target housing and child-occupied facilities before renovations for 4 compensation; and 5 (b) renovation training, certification, accreditation, and work prac- 6 tice standards programs, including: 7 (i) procedures and requirements for the accreditation of renovation 8 and dust sampling technician training programs; 9 (ii) procedures and requirements for accredited initial and refresher 10 training for renovators and dust sampling technicians and on-the-job 11 training for other individuals who perform renovations; 12 (iii) procedures and requirements for the certification of individuals 13 and/or firms; 14 (iv) requirements that all renovations be conducted by appropriately 15 certified individuals and/or firms; 16 (v) work practice standards for the conduct of renovations; and 17 (vi) clear enforcement mechanisms and procedures for unannounced 18 compliance inspections of properties and for responding to complaints. 19 2. The regulations adopted under subdivision one of this section shall 20 include provisions: 21 (a) Requiring the use of lead dust clearance testing, rather than 22 cleaning verification, pursuant to 40 CFR 745.85(c) or successor regu- 23 lation, and requiring that the collection of dust clearance testing 24 samples be performed by an inspector, risk assessor, or dust sampling 25 technician independent of the owner or contractor and accredited pursu- 26 ant to (i) the United States environmental protection agency pursuant to 27 40 CFR 745.226 or 40 CFR 745.90(c) or successor regulation; or (ii) 28 certification by a state or tribal program authorized by the United 29 States environmental protection agency to certify individuals engaged in 30 lead-based paint activities pursuant to 40 CFR 745.325 or successor 31 regulation; 32 (b) Barring the disturbance or removal of lead-based paint or paint of 33 unknown content using any of the following methods: 34 (i) dry scraping or dry sanding, meaning the removal of paint or simi- 35 lar surface coating material by scraping or sanding without the use of 36 water misting to reduce dust levels or other similar methods to control 37 dust; 38 (ii) open flame burning or torching, or the use of heat guns operating 39 above eleven hundred degrees Fahrenheit, or charring paint; 40 (iii) machine sanding or grinding, or abrasive blasting or sandblast- 41 ing, without the use of local exhaust control employing a vacuum cleaner 42 device equipped with a high-efficiency particulate air filter capable of 43 filtering out monodispersed particles of 0.3 microns or greater in diam- 44 eter from a body of air at 99.97 percent efficiency or greater; 45 (iv) paint stripping in a poorly ventilated space using a volatile 46 stripper that is a hazardous substance in accordance with regulations of 47 the United States consumer product safety commission under 16 CFR 48 1500.3, and a hazardous chemical in accordance with the United States 49 occupational safety and health administration regulations under 29 CFR 50 1910.1200 or 1926.59 or successor regulation, as applicable to the work, 51 methylene chloride and n-methyl-2-pyrrolidone (NMP), and such other 52 chemicals that the department may by rule or regulation determine to be 53 hazardous; 54 (d) Requiring the on-site presence of a person accredited pursuant to 55 subdivision one of this section at all times during residential property 56 renovation work;
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1 (e) Applying such regulations to all demolition activities; 2 (f) Directing that municipalities and counties may, upon the approval 3 of the commissioner, assume enforcement in part or whole of such regu- 4 lations pertaining to residential property renovation; 5 (g) Requiring training programs authorized by the commissioner to 6 offer such trainings in a manner that is culturally competent including, 7 where needed, multiple languages, and accommodations for individuals 8 with low-literacy; 9 (h) Directing that pre-work or start-work notifications be filed with 10 such local agencies as the commissioner may designate; 11 (i) For posting notices in common areas of multi-family housing with a 12 designated phone number for contacting such local agencies as the 13 commissioner may designate for the enforcement of the regulations 14 pertaining to residential property renovation. 15 3. (a) The accreditation of individuals and/or firms pursuant to the 16 regulations adopted under subdivision one of this section shall extend 17 for a period of three years unless the commissioner has probable cause 18 to believe an individual or firm accredited under this section has 19 violated the terms of such accreditation or has engaged in illegal or 20 unethical conduct related to inspections required by this section, in 21 which case such accreditation to perform inspections shall be suspended 22 pending a hearing in accordance with the provisions of the state admin- 23 istrative procedure act. The commissioner shall establish by regulation 24 a schedule of fees for the accreditation and registration of such indi- 25 viduals and/or firms. Such fees shall be required to be paid at the time 26 of initial registration and at the time of subsequent renewal of regis- 27 tration, and shall be sufficient to cover all costs, including the costs 28 of state personnel, attributable to accreditation activities conducted 29 under this section. 30 (b) Fees collected pursuant to this subdivision shall be held in a 31 continuing, non-lapsing special fund to be used for accreditation 32 purposes under this section. 33 (c) Such fund established under paragraph (b) of this subdivision 34 shall be invested and reinvested and any investment earnings shall be 35 paid into the fund. 36 4. Any violation of the provisions of this section shall be punishable 37 as a misdemeanor, and a civil penalty of not less than ten thousand 38 dollars per violation. 39 § 2. Paragraphs h and i of subdivision 1 of section 381 of the execu- 40 tive law, as added by chapter 560 of the laws of 2010, are amended and a 41 new paragraph j is added to read as follows: 42 h. minimum basic training and in-service training requirements for 43 personnel charged with administration and enforcement of the state ener- 44 gy conservation construction code; [and] 45 i. standards and procedures for measuring the rate of compliance with 46 the state energy conservation construction code, and provisions requir- 47 ing that such rate of compliance be measured on an annual basis[.]; and 48 j. procedures requiring the documentation of compliance with regu- 49 lations adopted pursuant to section nine hundred twenty-eight of the 50 labor law as a condition to issuance of a construction permit. 51 § 3. This act shall take effect on the sixtieth day after it shall 52 have become a law. Effective immediately, the addition, amendment and/or 53 repeal of any rule or regulation necessary for the implementation of 54 this act on its effective date are authorized to be made and completed 55 on or before such effective date.