2 CITY COUNCIL

CITY OF NEW YORK

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THE TRANSCRIPT OF THE MINUTES

of the

COMMITTEE ON HOUSING And BUILDINGS

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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

B E F O R E:

MADELINE PROVENZANO

16 Chairperson,

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

24 LEGAL-EASE COURT REPORTING SERVICES, INC.

17 Battery Place - Suite 1308

25 New York, New York 10004

(800) 756-3410

2 A P P E A R A N C E S

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

Thomas R. Frieden, M.D., M.P.H.

9 Commissioner

Health and Mental Hygiene

Stan Michels

Preston Niblack

12 Deputy Director

Independent Budget Office

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

2 A P P E A R A N C E S (CONTINUED)

Elaine Toribio

4 Policy Analyst

Citizens Housing and Planning Council of New York

Frank Ricci

6 Director of Government Affairs

Rent Stabilization Association

Jordi Reyes-Montblanc

8 President and Chairman

Board of Directors of The HDFC Council

Evangelista Romon

10 Washington Heights

Grandmother of poisoned child

Juan Idaquez

12 President

Asbestos Lead and Waste Laborers, Local 78

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

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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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2 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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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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2 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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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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2 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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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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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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2 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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2 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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2 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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2 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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2 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

1 COMMITTEE ON HOUSING AND BUILDINGS

2 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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2 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

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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

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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

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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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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