Reyes, Seawright, Kelles, Lunsford, Rivera, De Los Santos, Simon, Steck, Meeks, Jacobson, Fahy,
Colton, Rosenthal L, Stirpe, Taylor, Hevesi, Ardila, Lucas
MLTSPNSR
Add Art 31-A §§925 - 928, Lab L; amd §381, Exec L
Establishes the "New York state lead-safe renovation, repair and painting act"; establishes standards for lead-safe renovation, repair and painting of residential properties; requires documentation of compliance with such standards.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A434A
SPONSOR: Bronson TITLE OF BILL:
An act to amend the labor law and the executive law, in relation to
establishing the "New York state lead-safe renovation, repair and paint-
ing act"
PURPOSE:
To enable New York State to assume administration of the lead-safe reno-
vation, repair and painting (RRP) rules, allowing New York to conduct
training, certification, and enforcement of the lead-safe renovation,
repair and painting projects and programs.
SUMMARY OF PROVISIONS:
Section 1. Amends the labor law by adding a new article 31-A;
925. Title: New York State Lead-Safe Renovation, Repair and Painting Act
926. Legislative findings: The legislature hereby finds and declares
that lead poisoning of children persists as one of the most prevalent
and preventable environmental diseases in New York.
927. Definitions: Lead-based paint, in part means paint or other similar
surface coating material containing 1.0 milligrams of lead per square
centimeter or greater. Lead dust clearance, in part means mass-per-area
concentrations of lead less than 5 micrograms of lead per square foot on
floors and less than 40 micrograms per square foot on interior window-
sills.
928. Residential property renovation. The commissioner shall adopt regu-
lations, sufficient to satisfy the requirements of 40 C.F.R. 745.326 or
successor regulation, governing a) pre-renovation education programs,
procedures and requirements for the distribution of lead hazard informa-
tion to owners and occupants of target housing and child-occupied facil-
ities before renovations for' compensation.
Section 2. Paragraphs h and i of subdivision 1 of section 381 of the
Executive Law are amended and a new paragraph k is added to read as
follows: procedures requiring the documentation of compliance with the
regulations adopted pursuant to section 914 of the labor law as a condi-
tion to issuance of a construction permit.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
The A-print amendments would provide a minor technical change and alter
the civil penalties for violations of the bill's requirements.
JUSTIFICATION:
Multiple studies by the NYS Department of Health have found that a
significant number of child lead poisoning cases were related to home
renovation, repair, and painting ("RRP") activities, which if not
performed safely can cause the spread of toxic lead dust. Since 2008,
federal law has required the use of specified safe work practices and
training for RRP work in pre-1978 residential dwellings performed by
hired contractors. While the federal RRP rules permit states to assume
enforcement of this program, New York (unlike many states) has not done
so -- even though New York State has the highest number of older resi-
dential dwellings with lead-based paint in the nation, and as well the
highest number of childhood lead poisoning cases in the nation. This has
left enforcement to the federal EPA, which has consistently failed to
bring adequate resources to ensure compliance, as EPA's Inspector Gener-
al reported in 2019. For example, EPA has just 3.5 inspectors to cover a
vast region consisting of New York, New Jersey, Puerto Rico and the
Virgin Islands.
The proposed bill would enable NY to assume administration of the RRP
rules, allowing New York to conduct training, certification, and
enforcement of the RRP. The proposal would also require the use of
empirically based dust wipe clearance tests (rather than the problematic
"cleaning verification" used in the federal regulations) to assure prop-
er cleaning of hazardous lead dust once work is completed. The fees for
accreditation of persons to do this work would be used to fund the
program. A detailed report from the Community Foundation of Buffalo
estimated that this bill would protect some 140,000 children under age 6
each year from lead hazard exposure in some 483,000 homes undergoing RRP
work annually.
FISCAL IMPACT:
To be determined.
LEGISLATIVE HISTORY:
2021-22: referred to Labor
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become a law. Effective immediately; the addition, amendment and/or
repeal of any rule or regulation necessary for the implementation of
this act on its effective dat& are authorized to be made and completed
on or before such effective date.
STATE OF NEW YORK
________________________________________________________________________
434--A
2023-2024 Regular Sessions
IN ASSEMBLY
January 9, 2023
___________
Introduced by M. of A. BRONSON, REYES, SEAWRIGHT, KELLES, LUNSFORD,
RIVERA, DE LOS SANTOS, SIMON, STECK, MEEKS, JACOBSON, FAHY, COLTON,
L. ROSENTHAL, STIRPE, TAYLOR, HEVESI, ARDILA, LUCAS -- read once and
referred to the Committee on Labor -- reported and referred to the
Committee on Codes -- recommitted to the Committee on Codes in accord-
ance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01686-02-4
A. 434--A 2
1 lower than five micrograms per deciliter, and that there is no level of
2 lead ingestion which is without adverse impact.
3 The predominant cause of lead poisoning in children is the ingestion
4 of lead dust from lead-based paint from older residences. Although New
5 York state banned the sale of lead-based paint in nineteen hundred
6 seventy, seventy-four percent of New York's housing stock was
7 constructed prior to nineteen hundred seventy and ten percent of New
8 York's housing was constructed between nineteen hundred seventy and
9 nineteen hundred seventy-nine while lead-based paint was still available
10 through nineteen hundred seventy-eight. New York state has both the
11 nation's greatest number (over four million units), the highest percent-
12 age (55.08%) of pre-nineteen hundred sixty and pre-nineteen hundred
13 fifty (41.0%) housing, and the oldest housing inventory among the fifty
14 states. According to the federal Environmental Protection Agency, some
15 lead painted surfaces can be found in eighty-seven percent of homes
16 constructed before nineteen hundred forty, sixty-nine percent of homes
17 constructed between nineteen hundred forty and nineteen hundred fifty-
18 nine, and twenty-four percent of homes constructed between nineteen
19 hundred sixty and nineteen hundred seventy-eight. New York state's older
20 housing stock places residents at great risk of exposure to lead
21 hazards, with low-income children living in older housing having the
22 highest risk of lead poisoning.
23 A key source of lead dust is renovation, repair, and painting work in
24 homes that contain lead-based paint. These activities exacerbate lead
25 dust levels and leave harmful dust for many years.
26 Renovation workers often unwittingly expose themselves to lead hazards
27 by using unsafe work practices that result in exposure for workers and
28 their family members.
29 The federal Environmental Protection Agency (EPA) has developed guide-
30 lines to conduct renovations in a lead-safe manner, known as the Reno-
31 vation, Repair, and Painting (RRP) rule and compliance with the RRP rule
32 is required for all contractors and landlords working in housing and
33 childcare facilities built before nineteen hundred seventy-eight.
34 However, the EPA's enforcement of this program, which includes over six
35 million homes in New York state, is minimal with only seven EPA enforce-
36 ment actions in New York in two thousand nineteen.
37 Multiple studies conducted prior to implementation of the RRP rule
38 present the harmful effects of lead dust produced from specifically
39 renovation, repair, and painting activities in homes with lead-based
40 paint. One study of children in New York in two thousand six-two thou-
41 sand seven found that fourteen percent of the children with extremely
42 high EBLLs (twenty micrograms per deciliter and above) were related to
43 renovation, repair and painting activities; all the homes linked to
44 RRP-related lead exposure were built before nineteen hundred seventy-
45 eight except one, and children with lower EBLLs (less than twenty micro-
46 grams per deciliter) were estimated to have been primarily exposed to
47 lead through RRP activities in nearly forty percent of cases. This indi-
48 cates that renovation, repair and painting activities are one of the
49 primary sources of lead exposure in young children. If these rates of
50 exposure from RRP are extrapolated to hold for the entire New York state
51 population of lead-exposed children, approximately nine thousand three
52 hundred twenty-seven children become subject to lead poisoning as a
53 result of renovation, repair, and painting activities each year. Of
54 those, two thousand four hundred eighteen children would experience
55 severely high EBLLs of twenty micrograms per deciliter or greater and
A. 434--A 3
1 above. The safe work practices in the RRP rule can also protect the
2 health of renovation workers.
3 The EPA regulations provide that states can obtain delegation from the
4 federal government to manage their own lead-safe renovation programs,
5 and at least fourteen states have done so and tailored their RRP
6 programs to meet the implementation and enforcement needs of their
7 state. With the oldest housing stock in the nation, New York has an
8 especially serious lead poisoning problem and urgently needs to seek
9 authorization for this program. Doing so will give state agencies the
10 authority to enforce existing regulations and the opportunity to
11 strengthen them in an appropriate manner.
12 § 927. Definitions. As used in this article, the following terms shall
13 have the following meanings:
14 1. "Lead-based paint" means paint or other similar surface coating
15 material containing 1.0 milligrams of lead per square centimeter or
16 greater, as determined by laboratory analysis of paint samples with all
17 layers of paint present, or by an x-ray fluorescence analyzer. If an
18 x-ray fluorescence analyzer is used, readings shall be corrected for
19 substrate bias when necessary as specified by the performance character-
20 istic sheets released by the United States environmental protection
21 agency and the United States department of housing and urban development
22 for the specific x-ray fluorescence analyzer used. X-ray fluorescence
23 readings shall be classified as positive, negative or inconclusive in
24 accordance with the most recent United States department of housing and
25 urban development guidelines for the evaluation and control of lead-
26 based paint hazards in housing and the performance characteristic sheets
27 released by the United States environmental protection agency and the
28 United States department of housing and urban development for the
29 specific x-ray fluorescence analyzer used. X-ray fluorescence readings
30 that fall within the inconclusive zone, as determined by the performance
31 characteristic sheets, shall be confirmed by laboratory analysis of
32 paint chips, results shall be reported in milligrams of lead per square
33 centimeter and the measure of such laboratory analysis shall be defini-
34 tive. If laboratory analysis is used to determine lead content, results
35 shall be reported in milligrams of lead per square centimeter. Where the
36 surface area of a paint chip sample cannot be accurately measured or if
37 an accurately measured paint chip sample cannot be removed, a laboratory
38 analysis may be reported in percent by weight. In such case, lead-based
39 paint shall mean any paint or other similar surface coating material
40 containing more than 0.009% of metallic lead, based on the non-volatile
41 content of the paint or other similar surface coating material. In the
42 event that the United States environmental protection agency or a
43 successor agency, or the United States department of housing and urban
44 development or a successor agency, or a department or agency of the
45 state of New York that has obtained applicable authorization pursuant to
46 40 CFR part 745 subpart Q or successor regulation, adopts more stringent
47 definitions of lead-based paint, such definitions shall apply for the
48 purposes of this article.
49 2. "Lead dust clearance" means mass-per-area concentrations of lead
50 less than five micrograms of lead per square foot on floors and less
51 than forty micrograms per square foot on interior window sills,
52 provided, however, that:
53 (a) The commissioner may by regulation set more stringent levels for
54 lead dust clearance in the event the commissioner determines such more
55 stringent levels are needed to identify potential lead hazards and
56 protect public health; and
A. 434--A 4
1 (b) The commissioner shall by regulation adopt such more stringent
2 levels for lead dust clearance as may be set by the United States envi-
3 ronmental protection agency or the United States department of housing
4 and urban development.
5 § 928. Residential property renovation. 1. The commissioner shall
6 adopt rules and/or regulations, sufficient to satisfy the requirements
7 of 40 C.F.R. 745.326 or its successor regulation, governing:
8 (a) pre-renovation education programs, procedures and requirements for
9 the distribution of lead hazard information to owners and occupants of
10 target housing and child-occupied facilities before renovations for
11 compensation; and
12 (b) renovation training, certification, accreditation, and work prac-
13 tice standards programs, including:
14 (i) procedures and requirements for the accreditation of renovation
15 and dust sampling technician training programs;
16 (ii) procedures and requirements for accredited initial and refresher
17 training for renovators and dust sampling technicians and on-the-job
18 training for other individuals who perform renovations;
19 (iii) procedures and requirements for the certification of individuals
20 and/or firms;
21 (iv) requirements that all renovations be conducted by appropriately
22 certified individuals and/or firms;
23 (v) work practice standards for the conduct of renovations; and
24 (vi) clear enforcement mechanisms and procedures for unannounced
25 compliance inspections of properties and for responding to complaints.
26 2. The regulations adopted under subdivision one of this section shall
27 include provisions:
28 (a) Requiring the use of lead dust clearance testing, rather than
29 cleaning verification, pursuant to 40 CFR 745.85(c) or successor regu-
30 lation, and requiring that the collection of dust clearance testing
31 samples be performed by an inspector, risk assessor, or dust sampling
32 technician independent of the owner or contractor and accredited pursu-
33 ant to (i) the United States environmental protection agency pursuant to
34 40 CFR 745.226 or 40 CFR 745.90(c) or successor regulation; or (ii)
35 certification by a state or tribal program authorized by the United
36 States environmental protection agency to certify individuals engaged in
37 lead-based paint activities pursuant to 40 CFR 745.325 or successor
38 regulation;
39 (b) Barring the disturbance or removal of lead-based paint or paint of
40 unknown content using any of the following methods:
41 (i) dry scraping or dry sanding, meaning the removal of paint or simi-
42 lar surface coating material by scraping or sanding without the use of
43 water misting to reduce dust levels or other similar methods to control
44 dust;
45 (ii) open flame burning or torching, or the use of heat guns operating
46 above eleven hundred degrees Fahrenheit, or charring paint;
47 (iii) machine sanding or grinding, or abrasive blasting or sandblast-
48 ing, without the use of local exhaust control employing a vacuum cleaner
49 device equipped with a high-efficiency particulate air filter capable of
50 filtering out monodispersed particles of 0.3 microns or greater in diam-
51 eter from a body of air at 99.97 percent efficiency or greater;
52 (iv) paint stripping in a poorly ventilated space using a volatile
53 stripper that is a hazardous substance in accordance with regulations of
54 the United States consumer product safety commission under 16 CFR
55 1500.3, and a hazardous chemical in accordance with the United States
56 occupational safety and health administration regulations under 29 CFR
A. 434--A 5
1 1910.1200 or 1926.59 or successor regulation, as applicable to the work,
2 methylene chloride and n-methyl-2-pyrrolidone (NMP), and such other
3 chemicals that the department may by rule or regulation determine to be
4 hazardous;
5 (d) Requiring the on-site presence of a person accredited pursuant to
6 subdivision one of this section at all times during residential property
7 renovation work;
8 (e) Applying such regulations to all demolition activities;
9 (f) Directing that municipalities and counties may, upon the approval
10 of the commissioner, assume enforcement in part or whole of such regu-
11 lations pertaining to residential property renovation;
12 (g) Requiring training programs authorized by the commissioner to
13 offer such trainings in a manner that is culturally competent including,
14 where needed, multiple languages, and accommodations for individuals
15 with low-literacy;
16 (h) Directing that pre-work or start-work notifications be filed with
17 such local agencies as the commissioner may designate;
18 (i) For posting notices in common areas of multi-family housing with a
19 designated phone number for contacting such local agencies as the
20 commissioner may designate for the enforcement of the regulations
21 pertaining to residential property renovation.
22 3. (a) The accreditation of individuals and/or firms pursuant to the
23 regulations adopted under subdivision one of this section shall extend
24 for a period of three years unless the commissioner has probable cause
25 to believe an individual or firm accredited under this section has
26 violated the terms of such accreditation or has engaged in illegal or
27 unethical conduct related to inspections required by this section, in
28 which case such accreditation to perform inspections shall be suspended
29 pending a hearing in accordance with the provisions of the state admin-
30 istrative procedure act. The commissioner shall establish by regulation
31 a schedule of fees for the accreditation and registration of such indi-
32 viduals and/or firms. Such fees shall be required to be paid at the time
33 of initial registration and at the time of subsequent renewal of regis-
34 tration, and shall be sufficient to cover all costs, including the costs
35 of state personnel, attributable to accreditation activities conducted
36 under this section.
37 (b) Fees collected pursuant to this subdivision shall be held in a
38 continuing, non-lapsing special fund to be used for accreditation
39 purposes under this section.
40 (c) Such fund established under paragraph (b) of this subdivision
41 shall be invested and reinvested and any investment earnings shall be
42 paid into the fund.
43 4. Any violation of the provisions of this section shall be punishable
44 as a misdemeanor, and a civil penalty of up to two thousand dollars for
45 the initial violation and up to four thousand dollars for a second or
46 subsequent violation.
47 § 2. Paragraphs h and i of subdivision 1 of section 381 of the execu-
48 tive law, as added by chapter 560 of the laws of 2010, are amended and a
49 new paragraph j is added to read as follows:
50 h. minimum basic training and in-service training requirements for
51 personnel charged with administration and enforcement of the state ener-
52 gy conservation construction code; [and]
53 i. standards and procedures for measuring the rate of compliance with
54 the state energy conservation construction code, and provisions requir-
55 ing that such rate of compliance be measured on an annual basis[.]; and
A. 434--A 6
1 j. procedures requiring the documentation of compliance with regu-
2 lations adopted pursuant to section nine hundred twenty-eight of the
3 labor law as a condition to issuance of a construction permit.
4 § 3. Paragraphs i and j of subdivision 1 of section 381 of the execu-
5 tive law, paragraph i as amended and paragraph j as added by section 3
6 of part T of chapter 57 of the laws of 2023, are amended and a new para-
7 graph k is added to read as follows:
8 i. standards and procedures for measuring the rate of compliance with
9 the state energy conservation construction code, and provisions requir-
10 ing that such rate of compliance be measured on an annual basis; [and]
11 j. procedures requiring the documentation of compliance with regu-
12 lations adopted pursuant to section thirteen hundred seventy-seven of
13 the public health law as a condition to issuance of a certificate of
14 occupancy or certificate of compliance following a periodic fire safety
15 and property maintenance inspection for multiple dwellings[.]; and
16 k. procedures requiring the documentation of compliance with regu-
17 lations adopted pursuant to section nine hundred twenty-eight of the
18 labor law as a condition to issuance of a construction permit.
19 § 4. This act shall take effect on the sixtieth day after it shall
20 have become a law; provided, however, that the amendments to section 381
21 of the executive law made by section 2 of this act shall expire and be
22 deemed repealed on the same date as section 3 of part T of chapter 57 of
23 the laws of 2023 takes effect; provided, further, that section three of
24 this act shall take effect on the same date and in the same manner as
25 section 3 of part T of chapter 57 of the laws of 2023 takes effect.
26 Effective immediately, the addition, amendment and/or repeal of any rule
27 or regulation necessary for the implementation of this act on its effec-
28 tive date are authorized to be made and completed on or before such
29 effective date.
