A00281 Summary:

SAME ASNo same as
COSPNSRJaffee, Colton, Rosenthal
MLTSPNSRGlick, Peoples-Stokes, Perry, Weisenberg
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.
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A00281 Actions:

01/09/2013referred to ways and means
01/08/2014referred to ways and means
06/17/2014held for consideration in ways and means
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A00281 Text:

                STATE OF NEW YORK
                               2013-2014 Regular Sessions
                   IN ASSEMBLY
                                     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
          protection act
          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
    11  alike.

    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
    20  marketplace.
    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-

        A. 281                              3
     1  ical before it is used, rather than assume it is harmless  until  proven
     2  otherwise.

     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
     2  species.
     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

        A. 281                              5

     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
    11  section.

    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
    40  survivors.
    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

        A. 281                              6
     1  may  determine.  All such meetings shall be subject to the open meetings
     2  law.
     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.
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