LEAD POISONING IN NEW YORK STATE: Issues and Opportunities March 16, 2006 Albany Law School

1. LEAD POISONING IN NEW YORK STATE: Issues and Opportunities March 16, 2006 Albany Law School PROPOSED LEGISLATION TO ADDRESS NEW YORK STATE’S NEED FOR PRIMARY PREVENTION

2. PROPOSED LEGISLATION: The Childhood Lead Poisoning Prevention and Safe Housing Act A. 4201-B / S. 2513-B Introduced in 2005 by Assemblyman David Gantt and Senator Joseph Robach

3. THE PERCEPTIONTHAT HAS THWARTED ADOPTION OF LEGISLATION: • The Problem is TOO BIG -- • ( “We couldn’t possibly inspect all of the housing in the state.” ) • OR • The Problem is TOO SMALL – • ( “We’ve already passed legislation that is eliminating lead poisoning.” )

4. ADDRESSING THE GAPS: • Bodies versus Buildings: • The current state statute (the Public Health Law) has no meaningful primary prevention mechanism • Under the current statutes and implementing regulations, buildings don’t get inspected until a child has already been poisoned. • Only New York City (and now Rochester) require that buildings be inspected before a child has been poisoned.

5. Isn’t there already a state building code that addresses lead paint hazards? No. The state’s Property Maintenance Code code does not address lead-paint hazards at all. The state treats all “deteriorated paint” conditions the same.

6. But doesn’t requiring owners to fix deteriorated paint assure that the housing is safe? No. The state code has NO provisions to cite for lead hazards from: • INTACT PAINT HAZARDS such as friction, impact and chewable surfaces • SOIL and LEAD-DUST Hazards. In fact, the current code threatens to do more harm than good – • it does not include any Lead Safe Work Practice requirements.

7. What about local building codes --- don’t they adequately address the problem? • No. Only New York City and the City of Rochester have requirements specifically requiring inspections for lead paint hazards. • Under the state law, a local building code (outside of NYC) may have to be approved by the Department of State’s “Building Codes Council.”

8. OVERVIEW OF THE PROPOSED LEGISLATION: • The legislation would target the areaswhere we know lead paint hazards exist. • The legislation also reduces the level for triggering an “intervention” inspection. • The bill will help property owners by • creating a low-interest loan fund, and • Providing tax credits for lead-safe housing.

9. APPLICABILITY: • Most of the new inspection provisions do not apply in New York City, but • The benefits of the loan fund and tax credits will be available to New York City landlords. • Unnecessarily burdensome inspection requirements are avoided by targeting the highest risk areas

10. Key Concepts: “Affected Properties” • Mostly pre-1970 rental units “Persons at Risk” • Children under age seven • Pregnant women Due Diligence (Section 1378) • Landlords have an obligation to pay attention when a unit is put on the market • Trust but verify -- the new law requires due diligence inspections by landlords but gives tenants the right to have an inspection made if there may be a lead hazard present. • Disclosure of Known Hazards • Addresses the gaps in the federal requirements and current state law

11. THE TARGETING MECHANISMS: • The Legislation targets the 30 municipalities in the state with the highest incidents of lead poisoning. • These areas are called “Communities of Concern” • That’s less than 3% of the municipalities (cities, towns or villages) in the state. • Other “hot spots” are addressed as well • These are called “Areas of High Risk.” They can be within or outside of a Community of Concern

12. WHAT WILL A LOCAL PRIMARY PREVENTION LOOK LIKE? • The state Department of Health must work with County Health officials and local municipal officials to prepare a prevention plan appropriate for a “Community of Concern” • The plan must target “persons at risk” (children under 7 and pregnant women) living in the highest risk housing (pre-1970 rental units) • For “Areas of High Risk” the requirements are more specific: • The plan must prioritize inspections of high risk housing and require abatement of lead-paint hazards using Lead Safe Work Practices. (See § 1378, subd. 5).

13. What about housing that is not in a “Community of Concern” or that is not an “Area of High Risk” ? Every owner of an “affected property” in which a “person of risk” will reside has an overall obligation to make their housing lead-safe within two years The proposed law uses a pragmatic approach to assuring that rental housing will be lead-safe: • The Due Diligence and Disclosure provisions, coupled with the ability to request an inspection for a suspected hazard, mean that all children and pregnant women renting in NY State will be able to obtain lead-safe housing.

14. What standards are used for housing to be considered safe?(Section 1376) “LEAD FREE” • The gold standard: essentially lead paint must have never been present or has been removed. (Think “permanent”). “LEAD-CONTAINED” • The second highest standard: essentially all lead paint hazards must be encapsulated, expected to last 20 years. (Think “long-term.”) “LEAD-STABILIZED” • The “lowest” threshold: assures safety, but requires greater vigilance. • Most economical to achieve, but not eligible for tax credits or loans

15. How is housing certified? For “Lead Free” housing: • Must have been inspected by a certified inspector For “Lead-Contained “Persons at Risk” • Inspection Report by certified inspector, • Every 3 years For “Lead-Stabilized” • The OWNER may certify that paint has been examined for hazards and fixed • Friction and impact surfaces must be protected • Structural defects must be fixed • IF paint has been disturbed: HEPA vacuum required prescribed cleaning techniques must be used, AND a dust wipe sample by an accredited person. • Due diligence inquiry is required on rental (§1378)

16. Lead Safe Work Practices:(Section 1373) Required when work will be performed that . . . • Will disturb lead paint., . . . • In an Affected Property (pre-1970 rental unit), . . . • Occupied by a person at risk (child under 7 or pregnant woman). Training Requirement: Owner or hired worker may NOT disturb lead paint unless they have been through Lead Safe Work Practices training (readily available). Exception: “small job” or “de minimis” Follows federal rules

17. Additional Provisionsof Interest: • Improved disclosure requirements for home sales of pre-1970 houses; • Protections against retaliation; • The right for occupants to sue for injunctive relief (to make the property safe) if landlord fails to remedy hazard after being notified.