1
2
CITY COUNCIL
3
CITY OF NEW YORK
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-------------------------------x
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THE TRANSCRIPT OF THE MINUTES
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of the
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COMMITTEE ON HOUSING And
BUILDINGS
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9
10 November 17, 2003
Start: 12:10 p.m.
11 Recess: 3:55 p.m.
12 City Hall
Council Chambers
13 New York, New York
14
B E F O R E:
15
MADELINE PROVENZANO
16 Chairperson,
17
COUNCIL MEMBERS: Tony Avella
18 Gale Brewer
Lewis Fidler
19 Melinda Katz
Kendall Stewart
20 James Oddo
Christine Quinn
21 Bill Perkins
Domenic Recchia
22 Speaker Miller
23
24 LEGAL-EASE COURT REPORTING SERVICES, INC.
17 Battery Place
- Suite 1308
25 New
York, New York 10004
(800) 756-3410
2
1
2
A P P E A R A N C E S
3
Jerilyn Perine
4
Commissioner
NYC Department of Housing
Preservation
5
And Development
6
Harold Schultz
Special Counsel
7
NYC Department of Housing Preservation
And Development
8
Thomas R. Frieden, M.D., M.P.H.
9
Commissioner
Health and Mental Hygiene
10
Stan Michels
11
Preston Niblack
12
Deputy Director
Independent Budget Office
13
Molly Wasso Parker
14
Senior Director,
Analyst for Housing and Buildings
15
Independent Budget Office
16
Rachael Salibreze
Health Analyst
17
Independent Budget Office
18
Maya Bachinsky
19
Innocensia Alvarez
20
Edward Korman
Executive Vice President
21
The Small Property Owners of New York, Inc.
22
Michael D. Lappin
President
23 The Community
Preservation Corporation
24
Matthew Dean
Executive Director
25
Physicians for Social Responsibility/NYC
3
1
2 A P P E A R A N C E S
(CONTINUED)
3
Elaine Toribio
4
Policy Analyst
Citizens Housing and Planning
Council of New York
5
Frank Ricci
6
Director of Government Affairs
Rent Stabilization Association
7
Jordi Reyes-Montblanc
8
President and Chairman
Board of Directors of The HDFC
Council
9
Evangelista Romon
10
Washington Heights
Grandmother of poisoned child
11
Juan Idaquez
12
President
Asbestos Lead and Waste Laborers,
Local 78
13
Michael McGuire
14
Director of Governmental and Legislative Affairs
Mason Tenders' District Council
of
15
Greater New York and Long Island
16
David Lee McAllister, M.A.
Principal Lead- based Paint
Instructor
17
Active Training Associates
18
Stephanie Nolasco
Twelve year old
19
diagnosed with Lead Poisoning
20
TESTIMONY REQUESTED READ INTO RECORD
21
Michelle Alvarez
Attorney
22
Natural Resources Defense Council
23
24
25
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COMMITTEE ON HOUSING AND BUILDINGS
2 CHAIRPERSON PROVENZANO: Good morning.
3
Good afternoon, whatever it is. It's only ten
4
minutes, good afternoon.
5 My name is Madeline Provenzano and I
6
chair the Committee on Housing and Buildings.
7 Today we are conducting a hearing on
8
a revised version of proposed Intro. No. 101-A, in
9
relation to childhood lead poisoning prevention. I'd
10
like to thank those of you who are here for this
11
hearing, and for your continued interest in this
12
matter.
13 The Committee has conducted a
14
previous hearing on an earlier version of this bill.
15
That hearing was begun on June 23rd, recessed and
16
then continued on September 12th. It is important to
17
state that during the month of July the Court of
18
Appeals struck down Local Law 38 for the Year 1999,
19
thereby making it more urgent that this Council
20
craft appropriate legislation to address the issue
21
of lead-based paint and to prevent childhood lead
22
poisoning.
23 We are once again expecting a goodly
24
amount of potential witnesses and observers. So, I
25
would just like you to be mindful of any time
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constraints that I impose, and please be considerate
3
of your fellow colleagues and of one another.
4 In order to move things along
5
smoothly, I'm requesting that all witnesses be
6
concise and that your testimony focus on the bill or
7
any amendments to the bill only.
8 I also wish to reiterate that only
9
one spokesperson may testify from each group or
10
organization.
11 Again, I repeat that this could be a
12
very emotional hearing, but it will be conducted in
13
a dignified manner.
14 You may not agree with all of the
15
comments made, but please allow everyone to testify
16 without boos,
heckling, cheers or applause. That
17
will help move the hearing along for all of us, and
18
if you wish to testify, remember you must sign in
19
with the Sergeant-At-Arms.
20 I'd like to
introduce my colleagues
21
that are here. To my right we have Council Member
22
James Oddo, Council Member Recchia, Council Member
23
Bill Perkins.
24 To my left Council Member Tony
25
Avella, Councilwoman Christine Quinn, Councilwoman
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COMMITTEE ON HOUSING AND BUILDINGS
2
Melinda Katz, and our Speaker, Council Member
3
Gifford Miller. And I think the Speaker would like
4
to say a few words.
5 SPEAKER MILLER: Well, thank you,
6
Madam Chair. Thank you for chairing these hearings
7
and for your leadership in making sure that we
8
address this issue.
9 Secondly, I thank all of my
10
colleagues that are here, particularly the prime
11
sponsor of this legislation, Council Member Perkins
12
and the other sponsors of this legislation. I'm just
13
pleased to be here to say that this version of
14
101-A, which has been poured over exhaustively for
15
quite some time, is a version that I think is the
16
most -- has the potential to be, once it is enacted,
17
the most powerful legislation in the country to
18
protect children from lead poisoning. And that its
19
primary focus is appropriately on protecting
20
children, preventing lead poisoning in the first
21
place, and making sure that the incentives are such
22
that it never occurs, that we focus on the terrible
23
problem, which continues to affect thousands of
24
children in our City every year, and we believe that
25
this approach, and I believe, and the other sponsors
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COMMITTEE ON HOUSING AND BUILDINGS
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of this legislation I think believe that this
3
approach is the right approach.
4 It is also a reasonable approach,
5
which sets compliance in reasonable terms, and
6
reduces cost where appropriate in order to make sure
7
we're focusing the expenses and the resources of
8
this City on preventing lead poisoning in the first
9
place, and acting swiftly when it has occurred to
10
protect children. And we will, of course, welcome
11
the support of the Administration for this
12
legislation, so that we can make sure that it is not
13
only enacted, that it is implemented, and
14
implemented in a way that will reduce childhood lead
15
poisoning to a point at which no child ever has to
16
get poisoned again.
17 So, I am very pleased that this
18
legislation is getting this hearing today and I look
19
forward to working with all the other members of the
20
Council, with the members of the public, and with
21
the administration to enacting legislation that will
22 in the end be the
most effective piece of
23
legislation in the country to protect children from
24
the scourge of lead poisoning. And I thank everyone
25
for their leadership and bringing it to this point.
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COMMITTEE ON HOUSING AND BUILDINGS
2 CHAIRPERSON PROVENZANO: Thank you,
3
Mr. Speaker.
4 We'll now have a few comments from
5
the sponsor of the bill, Council Member Perkins.
6 COUNCIL MEMBER PERKINS: Thank you,
7
Councilwoman, and Chair of this Committee, for
8
allowing me a moment to say a few words and for
9
presiding over this very significant legislation,
10
which as you point out is very emotional and of
11
great concern to all New Yorkers.
12 Let me first start by thanking
13
sincerely the Speaker and the other 36 Council
14
members who support Intro. 101-A, the Childhood Lead
15
Paint Poisoning Prevention Act.
16 This bill is a state-of-the-art
17 measure that will put New York City at the head of
18
the nation for protecting children from lead paint
19
poisoning. It is comprehensive, cost effective, and
20
if enacted, will provide for the control of lead
21 dust. The primary
pathway to lead poisoning, as well
22
as lead paint.
23 It requires landlords to eliminate
24
leadpaint hazards, and the underlying conditions
25
that cause them. It defines leadpaint hazards as
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peeling lead paint, lead dust and certain surfaces
3
with lead paint, such as friction, impact and
4
chewable surfaces.
5 In addition, Intro. 101-A requires
6
landlords to affirmatively ascertain the presence of
7
children under age seven as in the current window
8
guard law. It mandates that HPD inspectors, when
9
making routine inspections, always inquire for the
10
presence of children and conduct line of sight
11
inspections for peeling lead paint. Intro. 101-A
12
also requires HPD operators when taking a phone
13
complaint to ask about children and peeling paint.
14 It adds protection from lead dust
15
hazards during repairs and renovations. It lowers
16
Health Department action levels to 15 ug/dl from the
17
current two tests within three months at 15 ug/dl or
18
one test at or above 20 ug/dl.
19 As we all know, Intro 101-A is
20 supported by countless
medical, environmental,
21
housing, labor and good government groups, as well
22
as religious leaders, the public advocate and the
23
City and State Comptrollers, as well as other City
24 and State elected
officials. At today's hearing I
25
hope we'll be able to add the Mayor to that list as
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COMMITTEE ON HOUSING AND BUILDINGS
2 well.
3 Thank you.
4 CHAIRPERSON PROVENZANO: Thank you.
5
We'll start with our Commissioners. We have Jerilyn
6
Perine, Commissioner of HPD, and we have Tom
7 Frieden,
Commissioner of Department of Health and
8
Mental Health, whichever one of you wants to start
9
first.
10 COMMISSIONER PERINE: I'll go first.
11 CHAIRPERSON PROVENZANO: Okay.
12 COMMISSIONER PERINE: Good morning,
13
Chairperson Provenzano and
Speaker Miller, and
14
members of the Housing and Buildings Committee. I'm
15
Jerilyn Perine --
16 CHAIRPERSON PROVENZANO: Commissioner,
17
can I interrupt a minute? Do you have written
18
testimony?
19 COMMISSIONER PERINE: I do.
20 CHAIRPERSON PROVENZANO: Okay, thank
21
you.
22 COMMISSIONER PERINE: Hot off the
23
presses, sorry.
24 I'm the Commissioner of the
25
Department of Housing Preservation and Development.
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COMMITTEE ON HOUSING AND BUILDINGS
2 We appreciate the opportunity to
3
testify today regarding the issue of lead poison
4 prevention and the
revised version of 101-A. As you
5
are aware, we testified on this issue on June 23rd,
6
2003. As we all know, since that time the Court of
7
Appeals has invalidated Local Law 38 on the basis
8
that the conditions of the State Environmental
9
Quality Review Act were not fully satisfied. Now
10
legislation is needed to replace Local Law 38.
11 The proposed bill is a big step
12 forward in the
direction of improving the lives of
13
children, and we believe with some technical and
14
procedural changes we have the opportunity to have a
15
better primary prevention program than we have had
16
to date. The proposed bill makes a firm commitment
17
to the use of trained workers to deal with lead
18
paint and lead hazards in New York City.
19 The use of qualified workers helps
20 ensure that work is done
properly and safely. All of
21
the work that HPD currently does in regard to lead
22
paint violation removal is done with EPA-trained
23
workers, so we have significant experience regarding
24
how to accomplish this type of work, and what
25
resources of time and staff are required to do it
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safely and properly.
3 The proposed bill requires that lead
4
dust clean-up and dust clearance tests are done
5
after any lead hazard remediation work.
6 Again, HPD's work meets this standard
7
now, and extending it to all work undertaken is
8
helpful to ensure that there is an independent check
9
on all lead hazard remediation work and that
10
clean-ups are done properly.
11 In addition, the proposed bill
12
provides that friction surfaces could now be a
13
stand-alone violation which will help to target
14
repairs where lead dust is most likely to be
15
generated. We also note that the definition of lead
16
paint has been changed to the nationally recognized
17
standard of one milligram per square centimeter.
18 This helps to ensure that the
19
violations written by HPD and the Department of
20
Health will be enforceable in court.
21 That being said, let me also say that
22
we are confident that the Council will take this
23
opportunity to address some technical and procedural
24
issues which will strengthen the proposed law's
25
effectiveness.
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2 Such changes will make sure that the
3
maximum resources go to correcting problems that
4
threaten the health of children.
5 When I last testified before the
6
Council on this issue, I provided a detailed
7
overview of concerns that we had regarding the
8
implementation of the proposed legislation, and I
9
will not repeat them all again here today.
10 We hope you will continue to consider
11
those concerns. Today I will briefly summarize some
12
of the key technical and procedural concerns we
13
would like you to consider, as you deliberate this
14
bill.
15 To protect children's health, it is
16
important to have quick and professional action by
17
owners of the City's housing stock, which may now
18
have lead paint violations. Owners are usually in
19
the best position to quickly address problems in the
20
building. The proposed bill, as you well know,
21
includes a more extensive scope of work that must be
22
completed, a higher standard of workers qualified to
23
do the work and more stringent dust testing
24
requirements. To ensure that this higher standard is
25
met and met properly, deadlines should be set that
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will ensure that there is sufficient time to
3
complete all of the tasks properly.
4 Deadlines that are too short will
5
reduce compliance by owners. Responsible owners will
6
struggle with time frames that are impossible to
7
meet, pushing them out of compliance and subject to
8
significant penalties that could threaten their
9
ability to keep their buildings in good repair.
10 Unscrupulous or unsophisticated
11
owners will ignore the work all together, relying
12
instead on the City to carry out the tasks they're
13
responsible for, or perhaps worse, seek shortcuts
14
which could in fact place children at greater risk
15
if work is undertaken improperly.
16 Realistic time periods will help to
17
ensure that quality work, undertaken by qualified
18
professionals, can take place. Here we can look to
19
our broader experience in housing, construction and
20
renovation as an example.
21 We know that renovation or new
22
construction typically requires between 18 to 24
23
months to complete, and we have a good idea of what
24
that costs. When we offer sites for such
25
construction competitively, we would not consider as
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competent a proposal which promised construction
3
completion in six months, at a cost far below the
4
costs that are commonly incurred.
5 Such a proposal would most assuredly
6
be relying on shoddy construction techniques, and
7
unqualified workers being paid far below the
8
accepted skilled wage rates. Indeed the entire basis
9
of wage rates in construction trades is based on the
10
premise that to ensure standards, qualified workers
11
should not have to compete unfairly with those
12
willing to undercut the market in order to meet the
13
expedient objectives of building poorer quality.
14 The work required under the proposed
15
bill can be viewed in the same light. Clearly, the
16
bill seeks to increase standards for both work and
17
the workers to carry it out. The time frames should
18
support that goal.
19 For example, the time period in which
20
to correct a lead hazard violation is reduced in the
21
proposed bill to one time frame of 14 days. The
22
maximum time period for a postponement is similarly
23 shortened from 45
days to 14 days, with the
24
possibility of one additional 14-day extension, but
25
only if the work had substantially already been
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completed.
3 Based on our experience of having
4
carried out over 9,000 lead violation repairs,
5
essentially following these higher standards, we
6
know that these time frames simply cannot be met.
7 In Boston, owners get 30 days just to
8
hire contractors, and another 60 days to do the
9
corrective work. In Baltimore owners have three, six
10
or even nine months more to bring buildings into
11
compliance, and in Chicago average compliance is
12
four months.
13 Moreover, our own experience shows
14
that smaller, less sophisticated owners need more
15
time. Under Local Law 38, during Fiscal Year 2003,
16
owners of buildings of ten units or less, needed
17
more time to correct lead violations than owners of
18 larger buildings,
which can often rely on
19
sophisticated property management companies.
20 Smaller owners were far more likely
21
to certify correction of violations later in the
22 36-day process allowed under Local Law 38 than were
23
the owners of larger buildings.
24 Our analysis shows that more than 40
25
percent of owners of these smaller buildings needed
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the extra time to complete their correction process,
3
compared to about 33 percent of owners overall.
4 And getting
work done requires the
5
cooperation of tenants. The more extensive the work
6
that is required, the more important tenant
7
cooperation is.
8 Tenants who are given little notice
9
to clear out of his or her bedroom or living room or
10
to make accommodation for their children in order to
11
make way for a work crew may well be uncooperative.
12
A reasonable time frame for correction will also
13
allow the work to be scheduled flexibly in order to
14
accommodate the tenants along other requirements.
15 Currently the proposed law will
16
ensure that all units will be made lead safe at
17
turnover when one household leaves before another
18
occupies the apartment. A provision we support.
19 Those apartments without turnover
20
between now and July 1st, 2007, will require
21
completion of a series of standard treatments in
22
child-occupied apartments by July 1, 2007. We
23
estimate that the universe of apartments with a
24
child under seven between now and July 1, 2007, is
25
approximately 350,000. With a low vacancy rate we
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can assume that most will remain occupied until that
3
date.
4 This raises the prospect that
5
significant numbers of families will find their
6
apartments the subject of very invasive work and may
7
find themselves dislocated. This provision can be
8
improved by extending the deadline and developing a
9
method that would allow the deadline to be applied
10
to those units most likely to contain lead
11
violations.
12 Moreover, the revised bill does not
13
provide for what happens when tenants do not provide
14
access to our inspectors or to work crews in a
15
timely manner.
16 Whether
it's the time period for
17
owners to comply for HPD to step in and do the work
18
that owners failed to do, or HPD's obligation to
19
inspect each unit after work is complete, shortened
20
and unrealistic time frames will not further the
21
goal of carrying our lead hazard reduction work out
22
safely and quickly.
23 In addition, it appears that the City
24
and owners will be made liable for failure to comply
25
with the time frames which were outside of their
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2
control. It's not clear that this would be
3
beneficial to the residents of the City in any
4
meaningful way.
5 I'm sure you will hear today from the
6
affordable housing industry, which has expressed
7
concerns regarding the potential impact of liability
8
risk in the City's housing markets, particularly in
9
our low-income communities.
10 In addition to ensuring that the work
11
is done properly, we are also seeking to ensure that
12
the City derives the maximum productivity out of the
13
code inspectors that are charged with the
14
enforcement of the housing maintenance code for more
15
than 1.6 million multiple dwelling units, as well as
16
for the enforcement of whatever lead paint law the
17
City has.
18 The more efficiently the inspection
19
force can be used, the more apartments would be kept
20
in good repair. With some minor technical changes,
21
the proposed bill can ensure that the productivity
22
of the City's code inspectors are not impeded and
23
their ability to enforce the Housing Maintenance
24
Code and the proposed law will be retained.
25 Let me give you a few examples of
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what I mean. I'm going to provide some level of
3
detail that I hope you will consider, since it
4
represents the work of actual City employees, should
5
this bill go into effect without any modification.
6 The revised version of 101-A still
7
requires that when a code inspector inspects a
8
pre-1960 dwelling unit where a child under seven
9
resides, he or she must record the existence of
10
intact paint surfaces.
11 In addition, the inspector must
12
record the existence or absence of an underlying
13
defect. Keeping in mind that the definition of such
14 defect includes a
condition that only has the
15
potential to cause paint to peel.
16 So, for instance, the inspector must
17
move all furniture and wallcoverings away from the
18
walls, and catalogue the condition of every wall and
19
surface in every room of every apartment that has a
20
child under seven that they walk into, whether or
21
not there is any peeling paint.
22 Inspectors
will be able to reach far
23
more apartments if they need only identify the areas
24
of peeling paint and friction surfaces. By focusing
25
our inspectors on peeling paint and friction
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2
surfaces, rather than surfaces without problems, we
3
can ensure that we're using our staff to actually
4
target the areas most likely to threaten the health
5
of children.
6 Please keep in mind that these
7
protocols must be followed whenever a child under
8
seven resides in an apartment and an inspector comes
9
for any reason. So an inspector responding to a lack
10
of water, for example, would write that violation,
11
and then if a child under seven resides in the
12
apartment, conduct a complete room-by-room
13
surface-by-surface inspection, moving furniture away
14
from walls and cataloguing the entire condition of
15
the apartment's wall surfaces. This will
16
significantly extend the time that an inspector
17
spends in an apartment on critical inspections and
18
shorten the number of inspections that they can get
19
to on their routes.
20 If potential lead violations are
21
found, the proposed bill adds the requirement that
22
the inspector use an XRF machine to test all peeling
23
paint during the same inspection.
24 Indeed, both these requirements seem
25
to exist, even if a complete inspection and XRF test
22
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2
were done in the very same apartment the prior week.
3 Clearly, redoing the same inspections over and over
4
prevents our inspectors from moving on to new
5
buildings and addressing new problems.
6 Now a reasonable person could ask,
7
well, the inspector is already there, why not just
8
test at the same time, and that's a fair question.
9
And here that argument is over method and not
10
intent.
11 We want to find peeling lead paint
12
quickly and efficiently. In this example, to
13
accomplish this all inspectors would have to have an
14
XRF machine with them at all times. But if every
15
inspector has an XRF machine, then every inspector,
16
even if they never use the machines, must pick it up
17
from the office each day and return it there each
18
night.
19 It is far more efficient to have a
20
specialized team return to the apartment as soon as
21
possible to conduct any needed XRF test.
22 We support the bill's provision that
23
requires code inspectors to EPA certified, but would
24
want XRF testing to be done by specialized teams.
25
This would ensure adequate testing is done where
23
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2
needed, without diminishing the productivity of the
3
code inspection staff.
4 The proposed bill requires that
5
common areas be XRF tested before the violation can
6
be written by the inspector. An inspector who would
7
have been responding to a tenant in a high-risk area
8
will instead be spending his day testing paint
9
surfaces in neighborhoods with low risk of lead
10
poisoning, and inspectors will have less time to
11
spend inside tenants' apartments where lead
12
poisoning is more likely to occur.
13 We also note that the targeted
14
inspection program set forth in section 2056.9 can
15 be made better. Under this
part of the bill, every
16
time a lead violation has been placed, HPD must
17
conduct an investigation of which units have
18
children under seven in the building, and must then
19 conduct inspections in such
units whether or not
20
they have peeling paint.
21 The magnitude of such inspections
22
will be substantial, and will overwhelm the
23
Department's capability to do other inspections.
24
While we have not had a long opportunity to review
25
and work with this section of the draft, we are sure
24
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2
that there are better ways to run a targeted
3
inspection program.
4 HPD already maintains the most
5
complete and easily accessible computerized code
6
enforcement record system. We make it easily
7
available on-line for all to see and use.
8 The revised version of 101-A also
9
proposes a requirement that HPD maintain both a
10
central register for all documents relating to lead
11
hazards, and an individual file for each dwelling
12
unit throughout the City where lead hazard work
13
occurs.
14 This expensive and time-consuming
15
endeavor is an additional cost that does nothing to
16
prevent lead poisoning. That money is better spent
17
in repairs and inspections.
18 These kind of provisions add unneeded
19
bureaucratic overhead to the objective of
20
remediating lead hazards.
21 Under the prior law, HPD estimates
22
that overhead per job carried out is approximately
23
$4,000 to $5,000 per job. Under the new version of
24
101-A, HPD estimates that overhead will
25
significantly increase to about $10,000 to $13,000
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2
per job. The revised bill also proposed to provide
3
J-51 tax abatement to owners who do lead hazard
4
remediation. Here we believe that tax incentives
5
should be given only for those who have done
6
permanent abatement, and only for those who did it
7
voluntarily, and not under the impetus of a
8
violation placed by HPD or the Department of Health.
9 The proposed bill includes changes
10
which are intended to not preclude lawsuits against
11
the City for failure to timely adopt implementing
12
rules.
13 Currently, it appears to go much
14 further than that,
and might be interpreted to allow
15
many other kinds of lawsuits against the City.
16 This language can be modified to
17
achieve the stated goal while protecting the City
18 against
unintended lawsuits.
19 Last but not least, this is a very
20
complex bill requiring the writing of complex rules.
21
The hiring and training of many workers, public
22
education of owners and the purchase of
23
sophisticated equipment. Programs at the federal
24
level that required far less stringent time frames
25
and scope of work took many years to implement. We
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2
believe that this bill will require a phase-in
3
process longer than the proposed 90 days in order to
4
be implemented responsibly.
5 New York City has had one of the most
6
aggressive programs of primary prevention in the
7
United States. New York City was among the first
8
cities in the US to ban lead paint in 1960. Our lead
9
hazard reduction law preceded the federal
10
government's Title X rules and we have spent more
11
money than any other municipality on direct work to
12
reduce lead hazards.
13 In
addition, as a result of an
14
extended and significant public investment, in the
15
renovation of the City's low-income housing stock,
16
today we have the lowest dilapidation rate since it
17
has measured by the US Census Bureau.
18 Once again, we look forward to slight
19
revisions to this new legislation that will create
20
even stronger safeguards for our City's children,
21 and ensure that
the City's housing stock remains in
22
good repair for generations, with some technical and
23
procedural changes, we believe that this bill can
24
reach this goal.
25 Thank you.
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2 CHAIRPERSON PROVENZANO: Thank you,
3
Commissioner.
4 We'll hear
from the Health
5
Commissioner and then we'll take questions.
6 COMMISSIONER FRIEDEN: Thank you. Good
7
morning. I'm Dr. Tom Frieden, Commissioner of Health
8
and Mental Hygiene, and I appreciate the opportunity
9
to speak with Council Committee on Housing and
10
Buildings and other members about lead poisoning in
11
New York City and Intro 101-A.
12 I appreciate and welcome the
13
Council's concern and commitment to ending childhood
14
lead poisoning.
15 Since Local Law 38 was ruled invalid
16
by the Courts, it is important that we have an
17 enforceable primary
prevention law. We're all here
18
today with the same goal, to ensure that a law is
19
passed in the near future, so we can continue and
20
strengthen our efforts to eliminate childhood lead
21
poisoning in New York City.
22 Lead poison is a serious problem in
23
New York City, throughout the United States,
24
especially the older communities of the northeast,
25
as well as in many developing countries.
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2 The emerging scientific consensus is
3
that no level of lead is safe, particularly for
4
children less than three years of age, although
5
there is still some uncertainty about this effect.
6 The prevention of lead poisoning in
7
our City's children is a top priority for the
8
Department of Health. For more than 40 years we've
9
been addressing the problem with childhood lead
10
poisoning and we've made significant progress.
11 Between 1995 and 2002 alone, there
12
was a 79 percent decline in elevated blood levels in
13
New York City children under six, with the falling
14
from more than 19,000 to just over 4,000. This
15
amounts to a 20 percent average annual reduction in
16
cases. Very few diseases have as rapid or sustained
17
a reduction.
18 The decline is primarily due to
19
regulations the prohibit the use of lead in
20
residential paint and gasoline, reduction of lead
21
paint hazards in homes, discontinued use of other
22
lead-containing projects and early identification
23
through screening.
24 In 1960,
New York City banned lead
25
paint in residential buildings 18 years before this
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2
was done nationally.
3 In 1982 the City developed a primary
4
prevention law. These laws have made a difference.
5
Our rates are far lower than rates of other cities,
6
even though 67 percent of our housing was built
7
before 1960.
8 In 2001, the percent of children with
9
elevated blood lead levels was five percent in
10
Chicago and Philadelphia, three percent in Boston
11
and 0.7 percent in New York City, using the census
12
population as a denominator.
13 Although we have higher rates of both
14
testing and reporting than most of these
15
jurisdictions, we had five or ten times fewer cases
16
of lead poisoning. We must continue to build on this
17
progress.
18 As the Department stated in its 2001
19
annual report, our goal is to eliminate lead
20 poisoning in New
York City. To continue our progress
21
we have to focus our efforts and reduce exposure to
22
multiple sources of lead of which lead paint is by
23
far the most important.
24 Although
we've come far in our
25
efforts to end lead poisoning, we have a long way to
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2
go.
3 The continuing rate of lead poisoning
4
in our City is unacceptable. In 2002 there were
5
still nearly 4,000 children less than age six with
6
elevated blood lead levels. To prevent future cases
7
we have to enhance our efforts by ensuring that
8
effective laws are in place, continuing to focus our
9
efforts on children, buildings and areas at highest
10
risk, improving compliance with these laws and
11
improving education to families, providers, owners,
12
maintenance and repair staff and others about lead
13
poisoning prevention.
14 Each year we receive more than
15 400,000 blood lead test results for New York City
16
children. We use these data to characterize problems
17
set goals, design solutions and evaluate our
18
efforts. It's important to understand the
19
characteristics of lead poisoned children in order
20
to target interventions. Young children, children
21
living in poorer neighborhoods, children of color,
22
are more likely to be lead poisoned.
23 It is to
these children that we need
24
to focus our resources.
25 Children between ages one and two
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2
years are at highest risk for lead poisoning because
3
of frequent hand-to-mouth activity. These youngest
4
children are also more susceptible to the harmful
5
effects of lead poisoning, due to their rapidly
6
developing nervous systems.
7 In 2002, 55 percent of lead poisoned
8
children in New York City were less than three years
9
of age, and an even greater proportion of the
10
negative health impact from lead poisoning will be
11
in this group.
12 Lead paint continues to be the
13
primary source of lead poisoning in New York City.
14 Lead poisoning is concentrated in
15
poor New York City neighborhoods with older housing.
16 In 2002, for children six months to
17
six years of age, with environmental intervention
18
blood lead levels, five of 42 neighborhoods
19
accounted for more than a third of the cases.
20 Immigrant status is also associated
21
with lead poisoning in New York City children,
22
particularly among children over three. The primary
23
countries of birth associated with elevated blood
24
lead levels were Haiti, Mexico, Pakistan, Dominican
25
Republic and Bangladesh. Lead hazards in these
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2
countries are ubiquitous. Sources include lead from
3
gasoline, battery repair, soldering, mining and
4
smelting, small manufacturing and paint, lead-glazed
5
pottery, traditional medicines, imported foods and
6
cosmetics. Exposure levels can be very high.
7 A significantly lower proportion of
8
immigrant children with blood lead levels receiving
9
environmental intervention have lead-based paint in
10
their homes that was peeling or deterioriated than
11
US born children.
12 This suggests that other sources may
13
be more common among immigrant children.
14 Today, because of reduction in
15
severity of lead poisoning has occurred, the vast
16
majority of lead-poisoned children have no symptoms.
17
Screening is therefore critical for early detection
18
and to prevent more serious lead poisoning.
19 Since 1993, New York State has
20
mandated blood lead testing of young children. By
21
New York State law, all children are to be tested at
22
ages one and two and between six months and six
23
years of age, the medical provider must assess risks
24
for lead poisoning every year and test those
25
children with high risks.
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2 Testing at age one is both most
3 important for early
identification of children with
4
elevated levels, and most consistent with national
5
recommendations.
6 In 2002 in New York City about 63
7
percent of one-year-olds were tested, 83 percent of
8
children were tested either at age one or age two.
9 The key indicator to track is the
10
proportion of kids who are tested in high-risk
11
communities, and the key intervention needed is
12
improved follow-up of those with high levels.
13 New York City has among the highest
14
testing rates in the country. More than 11 percent
15
of blood lead tests reported to CDC are from New
16
York City, while we represent less than three
17
percent of the US population.
18 The Department is committed to
19
further improving physician testing for lead
20
poisoning and uses multiple strategies to increase
21
testing rates, with the focus on communities most at
22
risk.
23 However, regulation and practice of
24
medicine is a state issue. As the draft statute
25
correctly notes, preventing lead poisoning, primary
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2
prevention is key. Preventing exposure to sources of
3
lead prevents lead poisoning, and the most important
4
strategies for prevention are, first, to reduce lead
5
paint hazards by safely repairing peeling or damaged
6
paint, as well as friction and impact surfaces,
7
identifying and mitigating non-paint lead sources,
8
and educating parents, physicians and those involved
9
in providing, maintaining and repairing housing
10
about prevention and exposure reduction.
11 The key to making primary prevention
12
work is getting landlords to understand and comply
13
with the law. This requires educating landlords,
14
superintendents, contractors, families, doctors and
15
CBOs. That requires targeted enforcement in
16
buildings and areas that are most likely to cause
17
exposure.
18 It also requires creative programs
19
that addressed lead hazards, including programs such
20
as grant and loan mechanisms similar to the
21
weatherization program to replace windows.
22 I cannot emphasize strongly enough
23
that the way to continue a rapid progress in
24
controlling lead poisoning is to focus our effort
25
and attention on communities, buildings and
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1
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2
populations at highest risk, only by doing this will
3
we continue our rapid progress.
4 Efforts that divert attention away
5
from these high-risk and high-need communities carry
6
this serious risk of slowing progress in the
7
communities where progress is most needed.
8 Turning to Intro. 101-A. We commend
9
your work to improve on previous New York City laws
10
addressing lead paint hazards. We are hoping, as is
11
the Council, that improvement to pass laws will
12
continue or even accelerate progress toward this
13
goal. Ending childhood lead poisoning is our goal,
14
as well.
15 Intro. 101-A has been improved in
16
many ways from its earlier version, and from Local
17
Law 38 and provides us with a sound basis for a new
18
law.
19 Many important elements of primary
20
prevention are incorporated into, or strengthened in
21
this version. Among these are the requirements that
22
landlords annually identify children living in
23
multiple dwellings before 1960 and inspect incorrect
24
peeling paint hazards in these apartments. Similarly
25
prohibiting dry scraping and sanding, which our
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2
analysis shows to be very important causes of lead
3
exposure, is an important step to continue the
4
prevention of lead poisoning.
5 We wholeheartedly support many of the
6
clear improvements in the previous laws that Intro
7
101-A incorporates. These include dust testing after
8
work is performed. Lead and dust is the strongest
9
predictor of a child's blood lead level, inclusion
10
of dust testing to determine if a dwelling unit has
11
been properly cleaned is essential and will result
12
in safer work practices, protecting workers,
13
families and children.
14 Safe work practices and training of
15
workers disturbing lead paint. The new version of
16
Intro 101-A requires that workers doing work after
17
an HPD violation are doing large scale work EPA
18
certified. It also requires smaller jobs use workers
19
who have received some training.
20 Both of these requirements increase
21
our assurance that lead hazards will be addressed
22
when work is performed.
23 The definition of lead paint. We
24
fully agree with the Council's definition of 1.0
25
mg/cm2 as the definition of lead paint. This is the
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2
level the federal government uses, and a level which
3 the standards for
machines are set.
4 Definition of lead hazards. We also
5
agree with the addition of conditions that cause
6
dust to the definition of lead hazards.
7 There are other aspects of 101-A
8
which we believe can be more effective in protecting
9
children with minor modifications. Some examples of
10
these include, first, the ages of children. I
11
understand the intuitive appeal of raising the age
12
at which the law applies from below six to below
13
seven. On the face of it, this change would seem to
14
protect more children, and further, I'm aware the
15
court mentioned this issue when it invalidated Local
16
Law 38. But how ever appealing this concept is, it
17
is wrong. A look at lead-poisoned children in New
18
York City explains why.
19 The vast majority of children with
20
lead poisoning are below the age of six, and older
21
children with elevated lead levels are much less
22
likely to have been exposed in their own homes. Even
23
among children three to five years of age, the
24
proportion who have peeling or deteriorated lead
25
paint in their homes is lower than among the
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2
youngest children.
3 While it would first appear that
4
increasing the age from six to seven could be more
5
protective of children, in fact, what it would do
6 would be to divert attention,
focus and resources
7
away from the children who need it most to children
8
who are at much lower risk from lead poisoning.
9 Young children are more likely to
10
crawl on the floor, have more hand-to-mouth
11
activity, are more susceptible to neurological
12
damage from lead, are more likely to have lead
13
hazards in their home, and are more likely to
14
benefit from environmental and other intervention.
15 Increasing the age from six to seven
16
increases the population to be covered by 15
17
percent, but in doing so, in effect, it takes 15
18
percent of all of the effort, energy, resources and
19
attention away from the children who need it most.
20 Increasing the age from six to seven
21
would inadvertently reduce the effectiveness of all
22
of our lead poisoning prevention efforts by 15
23
percent.
24 In this area, as in so much of public
25
health, prioritization is absolutely essential. This
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2
is why CDC, Center for Disease Control and
3
Prevention recommendations and New York State laws
4
focus on children under six years of age. New York
5
City Housing laws should do the same.
6 Second, proactive enforcement:
7
Enforcement is key to ensuring that any law is
8
effective, and Intro 101-A has provided for the
9
proactive enforcement that's necessary.
10 The proactive enforcement must be
11
driven by the best available data, and these data
12
can change from year-to-year. Hence, the means and
13
definition of this law could benefit from some
14
modification.
15 Tax abatements that have been
16
mentioned, it's an excellent suggestion, should only
17
be provided for permanent abatement and only for
18
those who do it voluntarily.
19 Timeframes: We agree with the need to
20
make timeframes consistent. Timeframes under 38 were
21
confusing. But the timeframes currently proposed are
22
simply not adequate for a landlord to identify and
23
secure a contractor, have the work completed safely
24
and ensure that dust testing is completed and
25
analyzed by a laboratory.
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2 Not providing for adequate time
3
places the burden to perform remediation and
4 provides no
incentive for landlords to take
5
responsibility for their property.
6 Confidentiality of data is another
7
significant concern. The current draft requires that
8
HPD examine Health Department records. Our records
9
are confidential, and they must stay that way.
10
Similarly, making HPD records, including all
11
inspection reports on an apartment-by-apartment
12
basis open to the public could invade a tenant's
13
personal privacy and does not seem to have a
14
corresponding benefit.
15 The next area has to do with the
16
promulgation of rules. HPD is most familiar with
17
their own policies and procedures. They should
18
promulgate their own rules. We could revise, review
19
or even approve these, but we should not be
20
promulgating rules that mandate prophesies and
21
procedures for HPD.
22 There are also areas in the draft
23
where DOH is expected to promulgate rules but the
24
bill is much too specific with regard to the content
25
of these rules.
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2 The advantage of rule-making is
3
flexibility to improve processes and procedures in
4
light of new data or knowledge and to use expertise
5
of operating agencies. To most
effectively protect
6
children now and in the future, rule making must
7
have latitude.
8 Common
areas: As a result of decades
9
of use in paint and gasoline, lead is unfortunately
10
widespread in our environment.
11 Again, key to success is focus. Young
12
children get most exposure in their homes. We do not
13
know whether lead in common areas adds a significant
14
contributor to lead poisoning. We do know that the
15
current draft enforcement requirements would divert
16 attention and resources away from children's homes
17
where we know that the risks are occurring.
18 Common areas can be addressed when
19
indicated. Peeling paint in common areas is a
20
violation of the Housing Code.
21 There are unnecessary administrative
22
requirements in the draft, including the filing of
23
all positive dust tests with the Department. These
24
would not have clear benefits, but would have
25
significant costs. We should be using our resources
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2
to protect children, not to increase bureaucracy.
3 The most important element is
4
apartments pass dust clearance testing and that
5
tenants not be exposed until such clearance is
6
assured.
7 Another similar example is filing of
8
all work 100 square feet or greater with the
9
Department of Health. This requirement would create
10
a large burden without clear benefits. It would be
11 very costly.
12 This clause alone, would, we
13
estimate, cost us more than $9 million in the next
14
year and more than 7 million in every subsequent
15
year, with no discernible benefit to children.
16 There is another area which appears
17
in the current draft to require the department to
18
clean dust where lead hazards, the source of lead
19
hazards haven't been determined. It should be
20
modified to make it clearer and more effective. It
21
should be limited to lead poisoned children,
22
furthermore, landlords, and not the Health
23
Department, should be responsible for removing lead
24
contaminated dust, if this exists in the home of a
25
lead poisoned child.
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2
Screening case rate
targets. This is
3
a complicated area. We recommend that screening and
4
case targets not be specified in the law, but if
5
they are to be included they need to be realistic.
6 Screening targets need
to focus on one- and
7
two-year-olds, particularly in high-risk areas. Case
8
targets need to take into account that non-paint
9
sources also exist, and that an increasing portion
10 of our cases will
consist of foreign-borne children,
11
many of whom will have been exposed abroad.
12 Recording of inspection of all
13
surfaces has been mentioned by Commissioner Perine.
14 This would be very
time consuming, would
15
dramatically reduce productivity and doesn't seem to
16
serve any purpose.
17 We rely on these inspectors for
18
proactive inspections. Diverting them from their
19
work would unintentionally reduce our effectiveness
20
in preventing lead poisoning.
21 There is also a requirement to
22
inspect when a pregnant woman with an elevated
23
level. In fact, pregnant women are mostly exposed
24
through the ingestion of non-food items for an
25
elevated pre-existing blood lead level. They're
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2
rarely exposed through ingestion of lead dust caused
3
by lead-based paint, and requiring inspections in
4
these situations would divert attention from those
5
who need resources the most.
6 There are, finally, aspects of 101-A
7
which should be carefully reviewed and could, we
8
think, be better targeted. I will mention two.
9
I'm sure we all
agree expenditures
10
should be targeted to preventing lead poisoning as
11
effectively as possible.
12 First is turnover requirements. Intro
13
101-A recognizes that turnover of apartments provide
14
the good opportunity for landlords to correct
15
hazards. Work can be done more safely, more
16
effectively and with less disruption if it is done
17
at turnover.
18 But we
need to be careful that
19
requirements for turnover are focused on where
20
there's a need and a way that will be most
21
effective.
22 Furthermore, the details of the
23
requirement at turnover should be carefully
24
reviewed.
25 The Department's -- the draft's
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2
statute requirement to abate all windows and doors
3
and surfaces with peeling paint in apartments
4
housing young children throughout New York City by
5
2007 is unnecessary in that it doesn't distinguish
6
between dwellings and conditions that are likely to
7
cause hazards, and those where hazards are unlikely.
8 Unnecessary abatement can expose
9
children to hazards where none previously existed
10
and can inadvertently do more harm than good.
11 There are also possible unintended
12
consequences of Intro. 101-A. I'm neither a housing
13
expert nor a legal expert, but in closing I would
14
like to briefly mention from the standpoint of the
15
Health Department possible implications of these
16
potential unintended consequences.
17 In the case of housing unintended
18
consequences potentially include decreased
19
availability of apartments for children with
20
families.
21 We are all too familiar with negative
22
health consequences of homelessness and unstable
23
housing. These include higher rates of tuberculosis,
24
drug use, alcoholism, AIDS, poor educational
25
performance and more. Homeless children are less
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2
healthy. Neighborhoods with more abandoned property
3
are less healthy. These factors and their impact on
4
health would certainly need to be considered if the
5
turnover and Citywide abatement clauses are not
6
carefully targeted.
7 In the case of legal issues it is
8
possible that an unintended consequence of this
9
legislation, there could be a large increase in
10
taxpayer costs, as a result of the impossibility of
11
compliance with proposed timeframes or of landlord
12
irresponsibility.
13 As
Health Commissioner, I hope that
14
costs resulting from this bill will go toward
15
preventing lead poisoning.
16 Again, thank you for the opportunity
17
to address you today. I look forward to working with
18
the Council to continue our progress toward the
19
elimination of childhood lead poisoning, and we're
20
happy to answer your questions.
21 CHAIRPERSON PROVENZANO: Thank you,
22
Commissioner.
23 We've also been joined by Council
24
Member Lou Fidler, and Council Member Martinez.
25 The Speaker has a question.
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2 SPEAKER MILLER: Thanks, Madam Chair.
3 I just wanted to ask Commissioner
4
Perine about the XRF. With regard to the XRF
5
detection, can you just explain to us a little bit
6
more what the concern is with regarding to the
7
dropping off of these items and how it would be more
8
efficient to have people go and visit the same place
9
twice in order to accomplish a test that I guess at
10
least theoretically could be accomplished in the
11
first instance.
12 COMMISSIONER PERINE: Yes. And, again,
13
I think -- go ahead.
14 CHAIRPERSON PROVENZANO: So, the size
15
of the machine?
16 COMMISSIONER PERINE: Yes. There's two
17
different sort of issues raised in your question,
18
Speaker Miller.
19 In terms of why it would be better to
20
bring back a second team, any time we can conserve
21
the housing inspector's time and keep them to their
22
route, you know, they start out the day knowing that
23
they've got to visit these ten or 12 places.
24 SPEAKER MILLER: And do they check in
25
anywhere?
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2 COMMISSIONER PERINE: Yes, they do.
3 SPEAKER MILLER: They do check in.
4 COMMISSIONER PERINE: On the radio.
5 SPEAKER MILLER: On the radio.
6 COMMISSIONER PERINE: Exactly.
7 SPEAKER MILLER: So they never got to
8
a spot and say I'm starting today?
9 COMMISSIONER PERINE: They start in
10
the morning, and they're dispatched and they have to
11
finish up the day. But where they start and where
12
they end can vary. And, so, you know, some
13
inspectors, depending on their route and depending
14
on where they live, may actually either start or end
15
their day directly from home and not come back to
16
the office necessarily twice in one day.
17 SPEAKER MILLER: And how often does
18
that happen?
19 COMMISSIONER PERINE: I think that
20
happens pretty frequently. We actually attempt to do
21 that whenever we can,
because, again, it's cutting
22
down on time. We don't need to make -- I mean, just
23
to make an extreme example, we don't have to make a
24
code inspector who lives out in Queens and has a
25
route that day to inspect things in Queens come all
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2
the way downtown at the beginning of the day and the
3
end of the day both times.
4 SPEAKER MILLER: So they come in one
5
time.
6 COMMISSIONER PERINE: They would come
7
in one time normally. And of course there are
8
exceptions when inspectors would come both at the
9
beginning and the end of the day. I don't want to
10
make it seem like that never happens, it does
11
happen, but we like to maintain the flexibility to
12
be able to cut off one of those trips whenever we
13
can, essentially in order to squeeze in more of
14
their time being spent doing inspections rather than
15
traveling to and from their respective offices.
16 So, that's one of the issues, so
17
that's, with an XRF machine, because of the nature
18
of the machine, it can't be taken home with an
19
inspector. So, unlike, you know, their radios and
20
their forms --
21 SPEAKER MILLER: Why is that?
22 COMMISSIONER PERINE: The machines