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Proposed Rules: Closed to Comments

Agency:
Comment By: 
Thursday, May 23, 2019
Proposed Rules Content: 
 
 

Statement of Basis and Purpose

  1. I.          The Dangers of Lead Exposure

Children exposed to any level of lead may face serious, irreversible harm that has consequences throughout their lifetimes. Children under the age of six are at greatest risk for exposure because they explore the world through hand-to-mouth activity and because their bodies are rapidly growing and can more readily absorb lead.  Elevated blood lead levels in children can result in behavioral changes, reduced educational attainment and hearing and speech delays. In 2012, the Centers for Disease Control and Prevention (CDC) explained that there is no safe blood lead level (BLL) for children, announced that 98.5% of children nationally had a BLL below five micrograms per deciliter (mcg/dL), and recommended public health action at this defined “reference level.”  In adults, lead exposure can increase risk of hypertension, peripheral neuropathy, renal dysfunction, and adverse reproductive outcomes. Pregnant women present a unique concern because lead exposure can affect the health of both the woman and the fetus. Since symptoms of elevated BLLs are often not immediately observable and many adverse health effects are irreversible, preventing exposure before it occurs and reducing future exposures are the only effective ways to protect children and adults from lead’s deleterious effects.

  1. II.          Lead in Paint

Lead in paint remains the most common source of lead exposure for New York City children.  As the older layers of lead-based paint from previous decades remain on interior surfaces, such layers peel, crack, chip, or flake. Very young children – especially those under the age of three – are most at risk as this peeling or chipped lead-based paint and dust easily end up on a crawling baby or toddler’s hands and toys and then into their digestive systems due to developmentally appropriate hand-to-mouth activity.  At critical stages of physical development, these very young children absorb lead at higher rates than older children and adults, putting them at the greatest risk of all when exposed to lead. 

New York City has long been at the vanguard of efforts nationally to reduce BLLs in children, beginning in 1960 when the Board of Health made New York City one of the first jurisdictions in the country to prohibit the use of lead paint in residential settings, 18 years before it was banned by the federal government. Because of strong laws, regulations, policies and procedures—including the requirements of the Health Code—New York City has seen close to a 90 percent decline since 2005 in the number of children under age six with a BLL at or above five mcg/dL.

The New York City Childhood Lead Poisoning Prevention Act (“Local Law 1”), enacted in 2004, required the Department to investigate the potential sources of lead in the home and elsewhere when it receives a report of children under 18 years old with a BLL level at or above 15 mcg/dL.[1]  Complementing Local Law 1, the Health Code currently defines “lead-based paint” as paint with a lead content of 1.0 milligrams per centimeter squared (mg/cm2).  It also requires that:

  • Health care providers and clinical laboratories notify the Department of BLL test results of 10 mcg/dL or greater within 24 hours (Health Code section 11.03) and all BLL test results within five business days (Health Code section 11.09);
  • DOHMH conduct investigations of children under 18 years old with BLLs at or above 15 mcg/dL to identify sources of lead and order abatement as needed (Health Code section 173.13(d)(2));
  • If lead-based paint hazards are identified based on a report of a child with a BLL of 15 mcg/dL, a Commissioner’s Order to correct the hazard be issued, requiring the owner to correct the violation within five days (Health Code section 173.13(d)(2)); and 
  • The maximum content of lead dust permitted for re-occupancy of a unit is 40 mcg/ft2 for floors, 250 mcg/ft2 for window sills, and 400 mcg/ft2 for window wells (Health Code section 173.14(e)(1)(I)(iv)).

            Based on changes in federal guidelines and evolving scientific evidence, the Department has been conducting investigations for children at BLLs lower than Health Code mandates, including at eight mcg/dL and above for children under 16 months old, and 10 mcg/dL and above for children under six years old. These environmental investigations include a comprehensive risk assessment and environmental sampling of the child’s residence and any supplemental addresses. The environmental sampling includes testing peeling paint and dust for lead content. The Department has been taking public health action for children with a BLL of five mcg/dL and above since 2009, by notifying parents and health care providers about the blood lead test results and providing recommendations for follow-up testing and interventions.  Beginning in 2018, the Department began conducting environmental investigations for all children under 18 years old with a BLL of five mcg/dL.

            In light of such changes in guidelines and scientific evidence, and to align with recent amendments to local law, the Department seeks to update relevant Health Code provisions related to childhood lead paint exposure interventions as described below.  Among the changes proposed is redefining “lead-based paint” from a lead concentration threshold of 1.0 mg/cm2 to 0.5 mg/cm2 and from paint with a metallic lead content of 0.5% or greater to 0.25% or greater once the New York City Department of Housing Preservation and Development (HPD) confirms via rulemaking that there is at least one Performance Characteristic Sheet (PCS) published by the United States Department of Housing and Urban Development or other sufficient written technical guidance approving a commercially available x-ray fluorescence (XRF) analyzer tested at the level of 0.5 mg/cm2.  In addition, since the Department’s review of XRF readings taken from residences of children with BLLs of eight mcg/dL and above show that paint with lead content below current Health Code levels presents a risk to children, the Department is proposing to immediately adopt this more protective standard and order abatement of non-intact paint where an XRF reading is 0.5 mg/cm2 and there is a child with under 18 years old with a BLL of five mcg/dL. In this manner, property owners are on clear notice that the Department will take enforcement action when needed if these lower lead levels in non-intact paint are present in the home of a child with a BLL of five mcg/dL or higher.

  1. III.          Consumer Products as a Source of Lead Exposures

While lead-based paint remains the primary source of lead exposure for New York City children, consumer products—such as certain supplements or remedies, cosmetics, religious powders, jewelry, and spices—are also often identified as potential lead sources associated with elevated BLLs. This poses a special challenge in New York City, where many residents come from a broad spectrum of ethnic, cultural, and religious backgrounds and use imported goods that may contain lead or other heavy metals at unsafe levels not permitted in goods produced in the United States.

To address this challenge, the Department has a comprehensive approach to identifying and reducing exposure to lead in consumer products that includes surveying stores to find potentially hazardous products, conducting enforcement actions to remove the products from sale and use, and providing risk communication and public education to prevent future use of the products. The Department has tested thousands of consumer products for lead and other heavy metals since 2011, of which hundreds of product samples have been found to contain elevated lead or other heavy metals. From September 2014 through 2018, the Department surveyed more than 700 New York City stores to determine the availability of hazardous consumer products and embargoed more than 19,000 hazardous consumer products. 

Multiple federal laws regulate non-paint sources of lead, including the Consumer Product Safety Act, the Federal Hazardous Substances Act, the Food, Drug and Cosmetic Act, and their attendant regulations, guidelines, and other publications.  These federal laws, regulations and guidelines provide baselines for permissible levels of lead in consumer products and other substances nationwide.  Combined, these laws and regulations provide a continuously evolving set of complex standards by which products and substances are regulated to protect the public health.  Some states and localities have taken steps to augment the federal standards.  In New York State, Education Law § 6818 bans the sale of cosmetics containing poisonous or deleterious substances. In New York City, Administrative Code § 17-189 prohibits the sale of lead-containing candy and litargirio.  California and Minnesota have made lead levels for adult jewelry closer to that required federally for children’s jewelry.[2] [3] Many states have also adopted the federal standards for lead content in children’s toys.

While the Health Code currently incorporates federal standards for lead content in consumer products, food, drugs, and cosmetics, these provisions can be confusing regarding specific items with dangerous levels of lead and regarding the Department’s enforcement authority.  The Department is therefore proposing to clarify specific products that are banned for sale, use, and transfer in the City due to their lead content.  The Department is also proposing to adopt specific Health Code authorization allowing it to seize, embargo, and/or condemn products and substances with dangerous levels of lead.  And finally, the Department is proposing to include a safe products awareness training program as a requirement for individuals and entities who offer for sale or otherwise distribute hazardous lead-containing products or materials; such a program will assist small businesses and others in identifying products they are not supposed to sell in the future and thereby expand the positive impact of Department enforcement action.

  1. IV.          Summary of Proposed Health Code Amendments

The Department is proposing the following amendments to the Health Code:

  1. Requiring all BLL test results of five mcg/dL or greater be reported to the Department within 24 hours and removing “lead poisoning” from the reportable condition of “poisoning by drugs or other toxic agents” (Section 11.03(a));
  2. Requiring that BLL test results below five mcg/dL are also reported to the Department (Section 11.09(a));
  3. Lowering  the BLLs of children under 18 years of age from 15 mcg/dL to five mcg/dL when the Department is required to issue abatement orders if a lead-based paint hazard is identified in a dwelling where children reside (Section 173.13(d)(2));
  4. Creating a trigger to redefine “lead-based paint” from a lead concentration threshold of 1.0 mg/cm2 to 0.5 mg/cm2 and from paint with a metallic lead content of 0.5% or greater to 0.25% or greater once the conditions of NYC Administrative Code Section 27-2056.2(7)(b) have been met to redefine the term citywide (Section 173.14(b));
  5. Defining “unsafe lead paint condition” to mean non-intact paint with a concentration of lead equal to or greater than 0.5 but not greater than 0.9 milligrams per square centimeter or with a metallic lead content of 0.25% or greater regardless of whether a PCS has been issued for an XRF at these levels (Section 173.14(b));
  6. Reducing the clearance level for dust wipes for floors and window wells and sills (Section 173.14(e)(1)(I)(iv));
  7. Clarifying that cosmetics containing lead that could cause harm to users is not permitted, and specifying that kohl, kajal, al-Kahal, surma, tiro, tozali, kwalli, and litargirio, among other substances, are banned from sale (Section 71.05(g)(1);
  8. Adding a new subsection to the definition of per se hazardous substances to specify the danger of lead exposure, and banning the sale of certain ceramic ware not suitable for use with foods and any jewelry that does not meet the federal standards for children’s jewelry (Section 173.01(i)(5));
  9. Requiring conspicuous warnings on ceramic ware not suitable for use with food (Section 173.05(e)); and
  10. Specifying that the sale, use, and transfer of hazardous or toxic substances or products is not permitted, that the Department has the power to seize, embargo, or condemn any such items, and that violators may be required to take a safe products awareness training program (Section 173.21).

                                                                                      Statutory Authority

These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter.  Section 558 empowers the Board to amend the Health Code and to include in the Health Code all matters to which the authority of the Department extends. Section 1043 grants the Department rulemaking authority. 




[1] NYC Administrative Code § 27-2056.14.

[2] California Health and Safety Code Article 10.1.1.

[3] 2018 Minnesota Statutes § 325E.389.

 
Subject: 

Proposed resolution to amend Article 11 (Reportable Diseases and Conditions), Article 71 (Food, Drugs and Cosmetics) and Article 173 (Hazardous Substances) of the New York City Health Code regarding lead in paint.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street 14th Floor, Room 14-43
Queens, NY 11101
Contact: 

Phone: (347) 396-6078/6116 or E-mail: resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf):