2011 Environmental Health Legislative Update
NCSL Staff Contacts
The 2011 legislative cycle was even more challenging than in previous years. Beginning in January 2012, 38 states and Puerto Rico have reported a combined $91 billion shortfall. This on top of shortfalls for the past several years means even less money for programs.
Since the great recession began, state legislatures have cut $510 billion from their budgets. Adding the $91 billion in additional necessary cuts brings the total to $600 billion since FY 2008, or half of the $1.2 trillion that the Congressional Supercommittee is seeking to cut from the federal budget.
But unlike the federal government, the states do not have to pay for social security or defense. Instead they have the big ticket items of education (both higher education and K – 12), corrections, transportation and Medicaid reimbursement. These programs take the largest share of the pie and are most likely to see the largest cuts. Environmental health, because of the fees most of its programs generate, is seen as an ‘enterprise operation.’ Since environmental health receive less general funds appropriations, it is less likely to suffer from general fund cuts.
On the other hand, environmental programs often are seen as an anathema to most Republicans, who now control the legislatures in 26 states and the legislature and governors’ offices in 21. Democrats control the legislature in 15 states, with the control being split in the remaining 8 (Nebraska has a non-partisan legislature). After the November 2011elections (where Mississippi, New Jersey and Virginia elected legislators, along with a handful of special elections), Republicans have an 3973 to 3324 legislative seat advantage over Democrats. The 2012 legislative sessions will see the most Republicans ever, with more state governments being controlled by Republicans than ever before.
In these tough times we are seeing state environmental health programs being dismantled. But not by legislative fiat. Rather, legislatures are cutting budgets where they can and streamlining policy if possible. State legislatures are not eliminating environmental health protection. They are simply forcing the state to do more with less, a mantra that many state agencies pass onto their local environmental health departments.
Environmental Health Legislation
As with the 2009 and 2010 legislative sessions, having a less robust economy or more conservative elected officials does not translate into less legislation. During the 2011 legislative sessions, 1,096 bills on environmental health were introduced in 48 states, Puerto Rico and Washington, DC. New York and New Jersey proposed the greatest number of laws, with New York proposing 226 bills and New Jersey proposing 130. Only Idaho and Wisconsin did not introduce any environmental health-related legislation.
By December, 131 laws had been enacted in 40 states. And in half the states, bills introduced in 2011 can carry-over into the 2012 sessions.
Indoor Air Quality
Sixteen laws were passed in Arkansas, California, Illinois, Kentucky, Maine, Maryland, Michigan, New Hampshire, Oregon, and Virginia. Of those laws, six are devoted to radon issues, two are related to mold, and three are related to smoking.
IL H 141 amends the Illinois Radon Awareness Act to require landlords to inform tenants and potential tenants of the presence of a radon hazard, if one is discovered after a radon test is conducted. The amendment applies only to “units located below the third story above ground level.” Maine passed three laws regarding radon. Notably, ME H 783 requires landlords to have rental buildings tested for radon prior to March 1, 2014, and afterward once every 10 years.
VA H 1768 holds tenants responsible for continuing to make rental payments in units where the landlord has deemed it necessary to temporarily relocate the tenant to perform mold mitigation activities. The temporary removal of the tenant from the rental property does not give the tenant the right to end the lease.
CA S 332, titled Rental Dwellings: Smoking, allows landlords to forbid tenants from smoking inside or outside of a rental unit, or anywhere on the rental property. Similarly, ME H 802 requires landlords to inform tenants of areas of a rental property where smoking is forbidden, which may include inside of a rental unit or any other areas on the rental property.
Outdoor Air Quality
New York and Tennessee both passed laws related to the relationship between smoking and outdoor air quality. NY A 5516 bans smoking in outdoor areas of Metropolitan Transportation Authority rail stations. TN S 1936 allows local governments to ban smoking on the campuses of hospitals or public outdoor areas near a hospital.
Six laws in Alabama, Connecticut, Georgia, New Jersey, Utah, and Wyoming were passed to address issues related to asbestos. Of those six, three of the laws passed related to liability issues.
Of note, NJ SJR 24 identifies September 26 as Mesothelioma Awareness Day.
The renewed presence of bedbugs has become increasingly worrisome to states and the public.
Arizona enacted AZ S 1306, which requires landlords to supply informational materials regarding bed bugs to tenants, and forbids landlords from leasing properties infested with bed bugs. Tenants may not bring items into a leased property that have been infested and must inform their landlord if they find an infestation in their home. The requirements of the statute do not apply to leases of single-family homes.
Ohio has found that bedbugs represent a growing threat to the state. In response, Ohio has enacted OH HR 31, which asks the EPA to grant an emergency exemption for the use of propoxur, an insecticide, in Ohio.
Biomonitoring and Health Tracking Systems
Nebraska and Oregon each passed one law related to biomonitoring and health tracking systems. Nebraska passed NE L 591, which compels the Department of Health and Human Services with the creation of a syndromic surveillance system. The law creates a means to track and report a variety of public health information.
OR S 107 permits the Health Authority to release information from the immunization registry and tracking and recall system for purposes of public health assessment and evaluation, including lead screenings.
Bisphenal A (BPA)
Five laws in Connecticut, Delaware, Maine, and Maryland, were passed to address the use of BPA in certain products. Connecticut forbids the chemical’s use in thermal receipt paper and cash register receipt paper via CT S 210. The law becomes effective October 1, 2013. Delaware bans the chemical from use in food and beverage containers for children via DE S 70. Maryland passed MD H 4 and MD S 151 to prevent the use of BPA in concentrations exceeding 0.5 ppb in containers for infant formula. The laws also prevent the state from buying infant formula containers that contain concentrations of BPA greater than 0.5 ppb.
Utah passed UT HJR 24 to conduct a number of studies, including a study of whether the state should ban BPA.
AR H 1385 created Act 146, which requires that homes built after January 1, 2012 in Arkansas be equipped with a low-voltage carbon monoxide detector on each floor.
CT H 5326 enacted Public Act 11-248, which requires that all public and private school buildings be equipped with carbon monoxide detectors.
Children’s Environmental Health
Eleven laws were passed in nine states to address environmental health issues pertaining to children.
Although several states attempted to pass restrictions on smoking motor vehicles while children are passengers, only Arkansas was able to do so successfully. AR S 1004 passed as Act 811, which forbids smoking in a motor vehicle when a child under 14 years of age is present. The previous version of the law forbade smoking in a motor vehicle with a child under six years of age.
CO S 12 allows students to carry certain medications while in a public school, so long as the student has a treatment plan for a valid health condition or the school board has otherwise created a policy to allow students to carry medications. Similarly, Texas passed TX S 27 that mandates school districts and open-enrollment charter schools to create plans for the treatment of students who are susceptible to anaphylaxis.
Florida, Georgia, and Illinois passed laws to restrict smoking within the context of public schools. FL S 1430 allows school districts to limit smoking “on school district property.” Likewise, GA HR 497 encourages “local school systems and schools” to forbid smoking on school campuses and to educate students about the harmful effects of smoking. IL S 1669 limits the circumstances under which a person may be permitted to drive a school bus, and, among other requirements, forbids smoking in vehicles.
Maryland, Maine, and Illinois have also passed laws to protect children from heavy metals. MD H 145 bans the manufacture or sale of children’s jewelry that contains cadmium in concentrations greater than “0.0075% by weight. The law comes into effect on July 1, 2012. IL S 1943 amends the Lead Poisoning Prevention Act to create new standards for warning labels regarding lead-containing items. ME S 89 widens the availability of lead testing for children.
New Jersey and Washington each enacted one law related to the use of phosphorus-containing fertilizers. NJ A 2290 creates limits and guidelines for “the application, sale, and use” of fertilizers containing nitrogen and phosphorus. The law also creates a certification program for professionals who apply fertilizer. WA H 1489 limits the sale and use of fertilizers containing phosphorus.
Forty-one states proposed 169 laws designed to address food safety issues. Ultimately, 30 laws were passed in 22 states, far more laws than were passed in any other issue area, indicating a heightened interest in addressing food safety standards.
Illinois passed a major food safety bill in the form of IL S 1852, which amends the Food Handling Regulation Enforcement Act. In recognition of the increasing economic importance of farmers’ markets within the state, the law creates a Farmers’ Market Task Force. The Task Force assists the Department of Public Health in creating standards for food products sold at farmers’ markets.
Cottage and home-based food production is an area of increasing legislative interest. Fifteen laws were proposed which related to the cottage food industry and foods produced in home-based facilities. Of the laws passed, seven were enacted in Arizona, Arkansas, Hawaii, Tennessee, Virginia, Washington and Wyoming.
Some states chose to exempt home-based kitchens and cottage foods from inspection, so long as certain conditions are met. For example, AZ H 2103 exempts non-potentially hazardous foods made in a home kitchen from inspection by the Department of Health Services, as long as the foods to be sold are properly labeled. AR H 1323 exempts home-based food operations from permitting requirements, so long as the foods sold are not potentially hazardous.
Other states prefer to retain the ability to inspect cottage food producers. TN S 1850 amends § 53-8-117 of the Tennessee Code, which allows for the production and sale of non-potentially hazardous foods prepared in home-based kitchens. Food preparers are required to “have adequate knowledge of safe food handling practices.” If the commissioner becomes aware that foods produced in a home kitchen have been contaminated and pose a threat to public health, the commissioner has the authority to forbid their sale until the kitchen undergoes an inspection.
WA S 5748 requires that cottage food operations undergo an annual inspection and hold a permit which must be renewed annually. Foods produced in a home kitchen must be non-potentially hazardous and sales may not exceed a predetermined yearly limit.
In the same vein, several states have passed laws exempting certain entities from meeting the requirements typically associated with establishments that serve or sell food to consumers. Laws in Virginia and California are key examples.
Virginia enacted two laws, VA S 117 and VA H 495, that exempt church kitchens and certain other groups and establishments from the regulations governing restaurants. California passed a similar law with CA A 1014. In addition to exempting churches, certain “care facilities,” private residences, and certain other establishments are exempt from retail food facility regulations. Beer and wine tasting facilities where no potentially hazardous beverages and no food aside from crackers or pretzels are offered, are exempt.
Maine sought to strengthen its chemical safety law by amending the priority chemicals program. ME H 841 prohibits the state Department of Environmental Protection from initiating rulemaking unless the chemical at issue has been included in a regulatory agenda, creates a new list of chemicals of high concern, and specifies appropriate de minimis levels for each chemical of high concern. The law also limits the definitions of children's product and consumer product, encourages for safer alternatives and provides exemptions from disclosing information for priority chemicals and sales prohibitions.
Georgia H 40 requires manufacturers of engine coolant or antifreeze containing more than 10 percent ethylene glycol to include a bittering agent, to make it unpleasant to people and animals.
Lead hazard control was an important topic, as was the regulation of mercury.
Eight laws were passed that directly addressed lead as it relates to environmental health. Georgia and Utah adopted language to require renovators and contractors be trained on lead hazards. Rhode Island passed RI S 652 and RI H 5945, which allow for the creation of a lead court to conduct proceedings related to the Lead Poisoning Prevention Act and/or Lead Hazard Mitigation in Providence, as well as other lead-related actions.
Several states have passed laws to prevent lead poisoning. For example, MD H 1033: Lead Risk Reduction Standard, requires renters to ensure the safety of properties previously “affected” by lead-based paint.
Arkansas, on the other hand, has repealed the Lead-based Paint Hazard Act of 1997 through the passage of AR S 833, which also creates the Lead-based Paint Hazard Act of 2011. The Act moves the lead program to the Department of Health and updates licensing and training requirements for activities involving lead.
Six laws in five states have been passed to address mercury issues. IL S 1213 outlaws the sale of mercury switches within the state. Similarly, NY A 668 forbids the sale of mercury thermostats and other consumer devices with the exception of devices for the “visually impaired.” In such a circumstance, plans for the proper disposal of the mercury-containing devices must be in place.
Maine, Virginia and Vermont have implemented laws to encourage the recycling or proper disposal of mercury-containing lamps and thermostats. ME S 145 allows recycling facilities that accept mercury containing lamps to use crushing devices if certain requirements are met. VT S 34 requires manufacturers of mercury containing lamps to collect and dispose of said lamps. Manufacturers must also prove that no other viable alternative to the use of mercury containing lamps exists, among other requirements. VA H 326 allows local governments to forbid the disposal of mercury-containing devices in private landfills if a program is in place to allow for proper recycling.
Thirteen laws were enacted in 12 states regarding pesticides.
California and New Hampshire have each passed laws related to mosquito control. CA SCR 10 identified April 12 through 30, 2011, to be West Nile Virus and Mosquito and Vector Control Awareness Week in an effort to raise public awareness of mosquito control issues. New Hampshire passed NH H 483 to allow local governments to control mosquito populations through the use of biological agents. The agents may be applied to wetlands and other “water bodies” in areas “where a public health threat is declared, or has been declared within the last three years.”
Toxics and Chemicals
Eight states passed 11 laws substantially related to toxics and chemicals. The laws address a variety of issues. This article focuses on those laws which address uranium, Chinese drywall, and brominated flame retardants.
AZ SCM 1003 was enacted to support veterans who have been exposed to depleted uranium, which has been linked to serious health concerns by the World Health Organization. The law asks the Departments of Veterans Affairs and Defense to assist any veteran who has been exposed to depleted uranium, as well as their dependents, in receiving testing for uranium exposure.
Virginia has successfully passed two laws to mitigate harms associated with the use of Chinese drywall. VA H 46 establishes the Virginia Defective Drywall Correction and Restoration Assistance Fund. The Fund will be used to make loans to homeowners and other entities for restoration or mitigation costs associated with defective drywall. VA S 942 requires sellers or renters of property to disclose the presence of defective drywall to buyers or tenants. A tenant who discovers the presence of defective drywall may end the lease within 60 days of the discovery of the defective materials.
Brominated Flame Retardants
Maryland has forbidden the use of decabrominated diphenyl ether (DecaBDE) on mattresses, furniture intended “for residential use,” and electronic equipment in concentrations exceeding “one tenth of 1%” of the total mass of the object in question. On December 31, 2012, the restriction will be extended to all products except military and transportation equipment. Beginning December 31, 2013, the restriction will also apply to transportation and military equipment and their components. However, MD S 221 and MD H 54 have allowed an exception for the use of DecaBDE in “certain aircraft.”
Mississippi, Nebraska, South Dakota, and Tennessee each passed laws related to water quality.
Interestingly, Nebraska and Tennessee both passed laws regarding fluoridation of municipal water supplies. NE L 36 requires cities and towns with populations greater than 1,000 people to fluoridate their water supplies. Municipalities with populations of more than 1,000 may pass local ordinances to ban the fluoridation of water. TN S 1055 requires public water systems that choose to discontinue fluoridating their water to inform the Departments of Environment and Conservation and Health.
MS H 105 allows the use of on-site wastewater disposal systems for individual homeowners and establishes guidelines for their installation. The law also allows for the certification of disposal system maintenance personnel.
IL S 2106 requires manufacturers of certain electronic devices, such as computers and televisions, to, “recycle or reuse at least 40% of the total weight,” of the devices produced. This standard will be in place through 2012, and will increase to 50% for 2013.
TX S 710 requires sellers of residential property to disclose the presence of a single, blockable main drain in pools or hot tubs/spas, if present. The stated reason for the disclosure is the potential hazard presented by the drain to trap a person via suction.
2011 EH Legislative Summary:
1096 bills proposed in 48 States and Washington, DC: Alabama (5), Alaska (5), Arizona (10), Arkansas (11), California (36), Colorado (3), Connecticut (32), Delaware (2), Florida (27), Georgia (11), Hawaii (48), Illinois (52), Indiana (9), Iowa (32), Kansas (5), Kentucky (9), Louisiana (4), Maine (25), Maryland (31), Massachusetts (44), Michigan (8), Minnesota (16), Mississippi (20), Missouri (10), Montana (9), Nebraska (7), Nevada (2), New Hampshire (12), New Jersey (130), New Mexico (3), New York (226), North Carolina (6), North Dakota (6), Ohio (6), Oklahoma (16), Oregon (29), Pennsylvania (11), Rhode Island (15), South Carolina (14), South Dakota (7), Tennessee (25), Texas (21), Utah (6), Vermont (13), Virginia (36), Washington (19), West Virginia (14), Wyoming (6), and Washington, DC (2).
131 laws enacted in 40 states: Alabama (1), Arizona (4), Arkansas (6), California (4), Colorado (1), Connecticut (3), Delaware (2), Florida (1), Georgia (4), Hawaii (2), Illinois (8), Indiana (3), Kansas (2), Kentucky (1), Louisiana (2), Maine (12), Maryland (9), Michigan (1), Minnesota (1), Mississippi (3), Montana (4), Nebraska (2), New Hampshire (3), New Jersey (2), New Mexico (1), New York (3), North Carolina (2), North Dakota (3), Ohio (1), Oregon, (7), Rhode Island (2), South Dakota (2), Tennessee (5), Texas (2), Utah (2), Vermont (2), Virginia (13), Washington (2), West Virginia (1), and Wyoming (2).