Amd S1-0101, En Con L; add Art 49-C SS996 - 996-c, Exec L
Enacts the "New York state public health protection act"; establishes a precautionary policy for the state; establishes criteria to guide implementation of the precautionary policy; creates a precautionary policy planning council.
STATE OF NEW YORK
2013-2014 Regular Sessions
January 9, 2013
Introduced by M. of A. SWEENEY, JAFFEE, COLTON -- Multi-Sponsored by --
M. of A. GLICK, PEOPLES-STOKES, PERRY, WEISENBERG -- read once and
referred to the Committee on Ways and Means
AN ACT to amend the environmental conservation law and the executive
law, in relation to establishing the New York state public health
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "New York
2 state public health protection act".
3 § 2. Legislative findings and declaration. The legislature hereby
4 finds and declares that:
5 (a) Every New Yorker has an equal right to a healthy and safe environ-
6 ment. This requires that our air, water, earth, and food be of a suffi-
7 ciently high quality that individuals and communities can live healthy,
8 fulfilling, and dignified lives. The duty to enhance, protect and
9 preserve New York's environment and the health of its citizens rests on
10 the shoulders of government, residents, citizen groups and businesses
12 (b) As New York moves into the twenty-first century, the state should
13 be a leader in the development of policies that will create and maintain
14 a healthy environment and vibrant economy. Heeding early warnings of
15 harm, putting safety and prevention first, encouraging innovation, and
16 creating and choosing the safest, most sustainable technologies,
17 products and practices will help to ensure a higher quality of life for
18 present and future generations. It will also put New York in an econom-
19 ically advantageous position to compete in an increasingly global
21 (c) New York looks forward to the time when the state's power is
22 generated from renewable and clean sources; when our homes, schools,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
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1 businesses and government facilities are energy efficient and
2 constructed, refurbished and maintained with safe and sustainable tech-
3 nologies and products; when pollution prevention is embraced by govern-
4 ment and businesses as a way to save money and protect public health and
5 the environment; when government and citizens use energy efficient and
6 clean vehicles; when pests are controlled with nontoxic or least toxic
7 alternatives; when our production of waste is significantly reduced and
8 the rest is recycled; and when our homes, schools, workplaces, food, air
9 and water are free from toxic contaminants. Adopting a precautionary
10 approach to decision-making will help New York attain these goals as
11 laws and policies are evaluated in areas such as energy, construction,
12 education, new technologies, economic development, small business
13 assistance, transportation, land use, planning, recreation, purchasing,
14 contracting, public investment, health care, and the environment.
15 (d) Transforming our society to realize these goals will take a behav-
16 ioral as well as technological revolution, which is already underway.
17 Adopting a precautionary approach to decision-making will help New York
18 speed this process of change by moving beyond finding cures for costly
19 environmental ills to preventing those ills before they can do harm.
20 (e) The central tenet of a precautionary approach to decision-making
21 is that government, businesses and society as a whole have a duty to
22 prevent harm to public health or the environment where credible evidence
23 exists that harm is occurring or is likely to occur, even when the exact
24 nature and full magnitude of harm is not yet proven. Precautionary deci-
25 sion-making places the highest priority on protecting public health and
26 the environment. It involves the careful assessment of a broad range of
27 options using the best available science and selecting the safest and
28 most sustainable feasible solution.
29 (f) Precautionary decision-making also involves active public partic-
30 ipation because, locally or internationally, the public bears the health
31 and ecological consequences of technological and environmental deci-
32 sions. Early, meaningful and effective public participation enriches
33 government decision-making by allowing a diversity of interests and
34 perspectives to be heard and considered. Citizens are equal partners in
35 making the decisions that will affect their health and environment.
36 (g) Historically, environmentally harmful activities have only been
37 stopped after they have manifested extreme environmental degradation or
38 exposed people to harm. In the case of DDT, lead, and asbestos, for
39 instance, regulatory action took place only after disaster and disease
40 had struck. The delay between first knowledge of harm and appropriate
41 action to deal with it can be measured in a lower quality of life,
42 numerous injuries and disabilities, tremendous costs for health care and
43 remediation, and the loss of many human lives. Some of the diseases and
44 negative health effects linked to environmental pollution include
45 cancer, asthma, reproductive disorders, birth defects, developmental
46 disorders, neurological disorders, autoimmune diseases, hormone
47 disruption, DNA damage and genetic mutations, and cellular malfunction.
48 (h) Science and technology are creating new solutions to prevent or
49 mitigate environmental problems. However, science is also creating new
50 compounds and chemicals that are finding their way into our bodies and
51 causing negative impacts on our health and environment. Taking a precau-
52 tionary approach will help to promote environmentally healthy solutions
53 while weeding out the negative and often unintended consequences of new
54 technologies. Government and businesses have a responsibility to study
55 the potential for harm from a new technology, practice, product or chem-
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1 ical before it is used, rather than assume it is harmless until proven
3 § 3. Section 1-0101 of the environmental conservation law is amended
4 by adding a new subdivision 4 to read as follows:
5 4. It shall further be the policy of the state that where threats of
6 harm to human health or the environment exist, lack of full scientific
7 certainty about cause and effect shall not be viewed as sufficient
8 reason for state or local government to postpone precautionary measures
9 to protect public health or the environment.
10 § 4. The executive law is amended by adding a new article 49-C to read
11 as follows:
12 ARTICLE 49-C
13 NEW YORK STATE PRECAUTIONARY POLICY
14 Section 996. Precautionary policy.
15 996-a. Definitions.
16 996-b. Precautionary criteria.
17 996-c. Precautionary policy planning council.
18 § 996. Precautionary policy. It is hereby declared to be the policy of
19 the state of New York that where threats of harm to human health or the
20 environment exist, lack of full scientific certainty about cause and
21 effect shall not be viewed as sufficient reason for state or local
22 government to postpone precautionary measures to protect public health
23 or the environment.
24 § 996-a. Definitions. When used in this article, the following words
25 and terms shall have the meanings ascribed to them in this section:
26 1. "State agency" means any state department, agency, board, public
27 benefit corporation, public authority or commission.
28 2. "Local agency" means any local agency, board, district, commission
29 or governing body, including any city, county, and other political
30 subdivision of the state.
31 3. "Agency" means any state or local agency.
32 4. (a) "Actions" shall mean (i) projects or activities directly under-
33 taken by an agency; or projects or activities supported in whole or part
34 through contracts, grants, subsidies, loans, or other forms of funding
35 assistance from one or more agencies; or projects or activities involv-
36 ing the issuance to a person of a lease, permit, license, certificate or
37 other entitlement for use or permission to act by one or more agencies;
38 and (ii) policy, regulations, and procedure-making.
39 (b) The term "actions" shall not include (i) enforcement proceedings
40 or the exercise of prosecutorial discretion in determining whether or
41 not to institute such proceedings; and (ii) official acts of a minister-
42 ial nature, involving no exercise of discretion.
43 5. "Harm" shall include, but not be limited to, damage to individual
44 humans or other organisms or communities or populations of such individ-
45 uals that may be manifest as acute toxicity; cancer; asthma; birth
46 defects; failure to reproduce normally; developmental abnormalities;
47 autoimmune disease, neurological disorders, or immune and nervous system
48 alterations; behavioral changes; DNA damage or genetic mutations;
49 disruption of biological signaling systems, including hormone
50 disruption; or other manifestations of damage to biological systems,
51 including cellular malfunction, that result in disease or suboptimal
52 functioning. Harm to human health or the environment shall include, but
53 not be limited to, harm to children, workers, sensitive populations,
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1 future generations, ecological systems, fish, wildlife, and endangered
3 6. "Credible evidence of a threat of harm to human health or the envi-
4 ronment" shall include, but not be limited to: well-established inde-
5 pendent scientific evidence of harm; emerging scientific evidence of
6 harm; verifiable evidence of altered functioning of exposed organisms,
7 including damage to DNA and biological systems and cellular malfunction;
8 results of comprehensive or partial testing and controlled observations,
9 including animal studies; observations from formal monitoring; epidemio-
10 logical evidence; health surveys or verifiable observations by workers,
11 community residents, exposed populations, and medical personnel; verifi-
12 able evidence of persistence or bioaccumulation in humans or the envi-
13 ronment; extrapolation from existing, well-established scientific
14 evidence on existing substances to new substances with similar struc-
15 tures and physico-chemical properties; and predictive models based on
16 empirical data.
17 § 996-b. Precautionary criteria. 1. The following criteria shall guide
18 implementation of the precautionary policy established in section nine
19 hundred ninety-six of this article:
20 (a) Anticipatory action. There is a duty to take anticipatory action
21 to prevent harm where credible evidence of a threat of harm to human
22 health or the environment exists, even when the exact nature and full
23 magnitude of harm is not yet proven. Any gaps in scientific data uncov-
24 ered by the examination of current or proposed technologies, products,
25 practices, or chemicals and their alternatives shall provide a guidepost
26 for future research, but shall not prevent protective action from being
27 taken by state and/or local government. As new scientific data become
28 available, state and local government shall review decisions and make
29 adjustments when warranted.
30 (b) Right to know. People have a right to know complete and accurate
31 information on the potential human health and environmental impacts
32 associated with any operation or plan before it is implemented, or the
33 selection and/or use of any technology, product, practice or chemical
34 before it is introduced into the public domain. The burden to supply
35 this information lies with the proponent or manufacturer, not with the
36 general public.
37 (c) Alternatives assessment. An obligation exists to thoroughly exam-
38 ine a full range of alternatives and select the safest and most sustain-
39 able feasible solution. Alternatives assessment shall involve the care-
40 ful analysis of a broad range of options using the best available
41 science, including the alternative of doing nothing. Such assessment
42 shall include, but not be limited to, the evaluation of short-term and
43 long-term effects and costs; the comparison of adverse or potentially
44 adverse effects; and estimation of the degree of uncertainty associated
45 with such effects and costs.
46 (d) Full-cost accounting. When evaluating current or proposed oper-
47 ations, plans, technologies, products, practices, or chemicals and their
48 alternatives, a duty exists to consider all the costs, including raw
49 materials, production, manufacturing, transportation, distribution, use,
50 operation, maintenance, disposal, cleanup and health and environmental
51 costs, including the cost of impairing children's health, even if such
52 costs are not reflected in the initial price. Short- and long-term time
53 thresholds shall be considered when making decisions.
54 (e) Participatory decision process. Public participation and an open
55 and transparent decision-making process are critical to finding, evalu-
56 ating and selecting alternatives. Decisions applying a precautionary
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1 approach shall be transparent, participatory, and informed by the best
2 available information. Precautionary decisions shall place the highest
3 priority on protecting public health and the environment, with the high-
4 est regard for those whose health may be affected.
5 2. All agencies shall use all practicable means to implement the
6 precautionary policy and shall adopt an approach to decision-making
7 consistent with the criteria specified in subdivision one of this
8 section to the maximum extent practicable. No agency shall propose,
9 perform or approve an action unless, to the maximum extent practicable,
10 it is consistent with the criteria specified in subdivision one of this
12 3. Before proposing, performing or approving an action that may have a
13 significant effect on public health or the environment, an agency shall
14 issue a written finding that the action is, to the maximum extent prac-
15 ticable, consistent with the criteria in subdivision one of this
16 section. If in any respect such action does not meet all the criteria
17 because consistency is considered to be impracticable, such finding
18 shall include a statement of justification.
19 § 996-c. Precautionary policy planning council. 1. A precautionary
20 policy planning council, hereafter referred to as the council, is hereby
21 created. Such council shall consist of seventeen members, seven of whom
22 shall be appointed by the governor and of such seven shall include the
23 commissioner of environmental conservation, the commissioner of health
24 and the commissioner of economic development; five of whom shall be
25 appointed by the temporary president of the senate; and five of whom
26 shall be appointed by the speaker of the assembly.
27 2. The fourteen at-large members of the council shall include two
28 representatives of local government; two representatives of organiza-
29 tions whose prime function is the safety and enhancement of public
30 health; two representatives of organizations whose prime function is the
31 preservation and enhancement of the environment; two representatives
32 from the manufacturing sector; two representatives from commercial busi-
33 nesses; two representatives with expertise in the area of environmental
34 health or alternative technology from academic institutions; and two
35 representatives who are cancer survivors or survivors of other diseases
36 thought to be related to environmental exposures and who are represen-
37 tatives of community-based organizations whose prime function is the
38 representation of such survivors and which have a proven track record of
39 working cooperatively with other organizations that represent such
41 3. Each member of the council shall serve for a term of four years or
42 until his or her successor is appointed. A member appointed to fill a
43 vacancy shall serve the remainder of the term of the member he or she is
44 appointed to succeed. Each member shall be entitled to designate in
45 writing a representative to attend meetings in his or her place and to
46 vote or otherwise act on his or her behalf in his or her absence. The
47 members of the council shall receive no compensation for their services,
48 but shall be reimbursed for their expenses actually and necessarily
49 incurred in the performance of their duties hereunder. Any member of the
50 council with a financial or any other conflict of interest related to a
51 matter being addressed by the council shall disclose such conflict and
52 recuse himself or herself prior to any discussion of or decision regard-
53 ing such matter.
54 4. The council shall select a chair from among its members. The coun-
55 cil shall meet as frequently as necessary, but not less than five times
56 per year. Such meetings shall be held at such locations as the council
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1 may determine. All such meetings shall be subject to the open meetings
3 5. The council shall, at a minimum:
4 (a) Provide guidance to state and local government on the implementa-
5 tion of the precautionary policy and criteria.
6 (b) Monitor state and local government actions to implement the
7 precautionary policy and criteria.
8 (c) Make recommendations to the governor, legislature and state and
9 local government regarding measures to improve implementation of the
10 precautionary policy and criteria by state and local government, includ-
11 ing actions needed to realize the full potential of such policy and
12 criteria and best protect public health and the environment.
13 (d) Report to the governor and legislature no less than every two
14 years on the extent to which state and local government agencies are in
15 compliance with the requirements of this article and on the effective-
16 ness of state and local government efforts to implement the precaution-
17 ary policy and criteria, including the adequacy of funding available and
18 difficulties encountered.
19 (e) Develop guidelines for the performance of precautionary alterna-
20 tives assessment. Such guidelines shall include criteria for further
21 defining "credible evidence of a threat of harm to human health or the
22 environment," including how to assess evidence of the presence of harm-
23 ful chemicals or synthetic chemicals that have not yet undergone safety
24 assessment in the bodies of humans or other organisms.
25 6. In carrying out its duties under this section, the council shall
26 follow an open and transparent decision-making process and provide
27 opportunities for public comment during its meetings and on any draft
28 guidelines and/or reports.
29 7. The department of health and the department of environmental
30 conservation shall provide the council with such facilities, assistance,
31 and data as will enable the council to carry out its powers and duties.
32 Additionally, all other agencies of the state or subdivisions thereof
33 shall, at the request of the chair, provide the task force with such
34 facilities, assistance and data as will enable the council to carry out
35 its powers and duties.
36 8. The council may consult with any person, organization, educational
37 institution, or governmental entity including, but not limited to, the
38 United States Environmental Protection Agency, the Centers for Disease
39 Control, the National Institutes of Health, and the National Institute
40 of Environmental Health Sciences, as well as the European Union and the
41 Canadian Health Department.
42 § 5. This act shall take effect on the one hundred twentieth day after
43 it shall have become a law; provided, however, that effective immediate-
44 ly, the addition, amendment and/or repeal of any rule or regulation
45 necessary for the implementation of this act on its effective date are
46 authorized and directed to be made and completed on or before such
47 effective date.