Environmental Health in the 2009 State Legislative Sessions

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By Doug Farquhar, J.D. and Scott Hendrick, J.D.

The 2009 State Legislative Sessions were dominated by diminishing revenues and budget cuts. Unlike recessions in the past, no state was immune from this downturn. State legislatures had to grapple with a $142 billion shortfall, which is anticipated to worsen in 2010.

Regardless of the budget, environmental health continued to garner attention, with 41 states enacting 158 bills. In every state, some bill related to environmental health was introduced, totalling 1,333 bills in the 50 states (the District of Columbia and the territories were not included in this research). No single issue dominated the environmental health agenda in 2009, but some states were more active than others. New York saw 251 bills introduced, but as of August, none had passed. Indiana introduced 24 bills related to environmental health, and passed seven of them. Montana introduced 17 bills, enacting six of them.

Following is a review of several key laws related to environmental health. As of August, only nine legislatures remain in regular session; a majority have adjourned for the year. Several states allow bills introduced in one session to carryover to the next, but that does not mean the bill will move any further during the 2010 session than it did in the 2009 session.

Indoor Air Quality

Continuing with the trend set during the 2008 legislative session, several states sought to prohibit tobacco smoking in public places. Thirty states introduced legislation banning smoking in public areas. However, as of August 2009, only Maine, North Carolina, South Dakota, Vermont and Virginia have enacted smoking bans during the 2009 legislative session. Maine forbids smoking in certain areas of state parks and historic sites (2009 Me. Laws, Chap. 65). In South Dakota, smoking is prohibited in public places and places of employment (2009 S.D. Sess. Laws, Chap. 171). Smoking is also banned in Vermont's places of employment (2009 Vt. Acts, Act 32). North Carolina prohibits smoking in state government buildings and vehicles (2009 N.C. Sess. Laws, Chap. 2009-27). Virginia bans smoking in restaurants, unless the building is constructed so smoking areas are structurally separated from nonsmoking areas and have separate ventilation systems.

Connecticut, Indiana, Louisiana, Michigan, Missouri and Mississippi unsuccessfully attempted to enact legislation banning smoking in public areas such as restaurants, bars, casinos, government buildings, schools and places of employment.

Nebraska, however, enacted legislation that exempts cigar bars from the state’s Clean Indoor Air Act. Similarly, Illinois is looking at legislation exempting smoking from the Smoke Free Illinois Act that is conducted for scientific research or is associated with an American Indian religious ceremony or ritual (IL S 215; IL S 1685). Hawaii enacted an exception to its Smoke-Free Law that permits smoking by employees or volunteers of correctional facilities (2009 Hawaii Act 99).

Seven states enacted legislation concerning installation of smoke and/or carbon monoxide detectors. Colorado requires any newly constructed or existing single or multi-family dwelling offered for sale, which contains a fuel-burning heater or appliance, a fireplace, or an attached garage, to have a carbon monoxide alarm installed within a specified distance of each room used for sleeping (2009 Colo. Sess. Laws, Chap. 51). Maine requires that all single-family dwellings and multi-apartment buildings, newly constructed single-family dwellings and rental units must have smoke and carbon monoxide detectors in close proximity to a bedroom (2009 Me. Laws, Chap. 162). New Hampshire also mandates installation of carbon monoxide detectors in single and multi-family dwellings constructed or substantially rehabilitated after a certain date (2009 NH Laws, Chap. 46). In Montana, sellers of residential property must provide notice regarding the presence of a carbon monoxide detector. Montana also requires that landlords have carbon monoxide detectors installed in rental dwellings (2009 Mont. Laws, Chap. 43). Washington now requires the seller of a single-family residence to equip the dwelling with carbon monoxide alarms before the buyer may legally occupy the residence (2009 Wash. Laws, Chap. 313). Utah prohibits counties, municipalities and local health departments from enforcing regulations requiring the installation or maintenance of carbon monoxide detectors against anyone other than the occupant of a residential dwelling.

Lead Hazards

A recently promulgated federal rule requires contractors who perform renovations, repair work or painting in housing built before 1978 be trained and certified in lead-safe work practices. States can seek authorization to administer and enforce the provisions of this rule. Mississippi amended its law to conform with these federal requirements, as did Iowa, North Carolina, Oregon and Virginia.

A major area of new legislation concerns the disposal of electronic products such as televisions and computer monitors in landfills, which often contain lead and other toxic substances. Although seven states introduced legislation in 2009 to establish programs for the recycling of discarded electronic devices, only Indiana and Utah enacted bills addressing this issue. Under Indiana’s law, television and computer monitor manufacturers must recycle 60 percent of the total weight of these video devices sold to households during the preceding year (2009 Ind. Acts, P.L. 178). Utah’s law encourages state residents to reduce electronic waste and reuse or recycle electronic items. The law also urges the Utah Department of Environmental Quality to continue working with the Recycling Coalition of Utah’s Electronic Scrap Steering Committee and other interested stakeholders to assess electronic waste issues in the state.

Another area of concern for states involves the use of lead wheel weights in motor vehicles. Six states sought to prohibit or restrict the sale and use of lead wheel weights. However, Washington and Maine are the only states that enacted legislation in 2009 to protect the public from hazards associated with using lead wheel weights. The Washington law stipulates that lead wheel weights must be replaced with environmentally preferred weights during replacement or balancing (2009 Wash. Laws, Chap. 243). Maine now prohibits the sale of wheel weights containing lead (2009 Me. Laws, Chap. 125).

Minnesota and New Jersey introduced legislation to address the lead exposure dangers of synthetic turf. Minnesota’s bill limits use of synthetic turf on certain athletic fields and permits schools to use health and safety revenue to study the public health impacts of using synthetic turf. New Jersey introduced similar legislation, which establishes a moratorium on the installation of synthetic turf pending a comprehensive public health study.

Mercury

The majority of mercury legislation introduced during the 2008-2009 legislative sessions focused on mercury exposure from vaccinations/immunizations and fluorescent lights. In eight states, legislatures sought to establish procedures governing the sale, use and recycling of lighting containing mercury. The same number of bills was introduced to regulate vaccinations and immunizations.

States also introduced legislation aimed at preventing mercury exposure from thermometers, thermostats and dental fillings. Montana established the Mercury-added Thermostat Collection Act, which prohibits the sale and installation of mercury thermostats and requires manufacturers to collect and recycle such thermostats (2009 Mont. Laws, Chap. 296).

Pesticides

States introduced legislation restricting pesticide use around schools and day care facilities. Connecticut enacted legislation allowing only certified pesticide operators to apply pesticides within a day care center (2009 Conn. Acts, P.A. 56). New Jersey and New York have bills pending that would prohibit use of certain pesticides at schools and day care centers.

Nevada enacted legislation that authorizes a district health officer to order a property owner to abate or exterminate mosquitoes or other pests infesting the owner’s property (2009 Nev. Stats., Chap. 334). Massachusetts has five bills pending relating to mosquito control. In particular, Massachusetts House Bill 704 mandates that the state’s Mosquito Borne Disease Control Board regulate management activities of disease vector mosquitos and related nuisance organisms. The commonwealth also has pending legislation that would require the Department of Public Health, in coordination with the Executive Office of Environmental Affairs and the State Reclamation and Mosquito Control Board, to meet with environmental organizations to discuss mosquito control, management of mosquito-borne diseases, and aerial spraying.

Biomonitoring, Environmental Justice, Health Impact Assessments

New York introduced the largest number of bills on biomonitoring (measuring chemicals in people) during the 2008-2009 legislative sessions. The majority of New York’s 12 pending bills concern the tracking of certain cancers such as bladder, breast and lung. In addition, New York is seeking to develop an environmental health system to track and evaluate chronic diseases, including cancer, in relation to environmental exposure. New York’s remaining bills seek to develop policies and procedures for tracking pesticide poisonings, toxic chemicals and environmental justice issues.

Along with New York, four additional states introduced legislation to monitor environmental justice concerns. Massachusetts has legislation pending that would establish an index to track environmental health issues among various communities and require certain projects to complete a health impact assessment to protect community residents. Legislators in Minnesota sought to establish the Environmental Justice Act, which would have created a task force to identify and make recommendations to state agency heads regarding actions to address environmental justice issues. Maryland failed to enact legislation designed to develop criteria and maps that identify environmentally stressed communities. Likewise, New Mexico was unable to pass a bill that would direct the state Department of Health to compile data and develop regional health profiles for specific vulnerable geographic regions of the state.

Another area of importance for state legislatures relates to exposure to depleted uranium. Hawaii, Missouri and Oregon introduced legislation to address the health effects of depleted uranium exposure on military veterans. These bills would have provided assistance to help military veterans obtain screening tests and treatment services. Additionally, Hawaii and Oregon sought to establish a task force to study the health implications of depleted uranium exposure.

Maryland and Minnesota enacted legislation relating to environmental health monitoring and testing. Minnesota’s bill requires the establishment of a network of water monitoring sites in public waters adjacent to wastewater treatment facilities to assess levels of endocrine disrupting compounds, antibiotic compounds, and pharmaceuticals. Maryland allows a county or the Department of the Environment to recover the costs incurred in conducting environmental health monitoring or testing to assess the public health and environmental effects resulting from the  release of a hazardous substance or pollutant in state waters from those responsible for the contamination.

Asbestos

Several states considered legislation concerning asbestos and silica liability claims. However, of the 15 states that introduced legislation, only Indiana, North Dakota and Oklahoma passed bills imposing limitations on claims for damages from exposure to asbestos or silica. The three states now limit liability arising from asbestos or silica-related claims for innocent successor corporations (2009 Ind. Acts, P.L. 134; 2009 N.D. Sess. Laws, Chap. 32; 2009 Okla. Sess. Laws, Chap. 228). Similar legislation is pending in Michigan, New York and Washington to limit a successor corporation's liability for asbestos or silica exposure claims.

Radon Exposure

States addressing radon sought to establish inspection and detection procedures and minimize radon exposure in public buildings and residential dwellings. Connecticut developed procedures for evaluating radon in indoor air and reducing elevated radon gas levels when detected in public schools (2009 Conn. Acts, P.A. 220). Maine requires a landlord of a residential building to periodically test for radon and notify the residents if an unhealthy level of radon is detected. Moreover, the landlord must mitigate the radon gas until it is reduced to a level not hazardous to human health (2009 Me. Laws, 278). Iowa HB 684 directs the Iowa Propane Education and Research Council to spend a certain percentage of its assessment on radon inspection and detection systems installation.

States also introduced legislation concerning the licensing and certification of radon inspectors. In Utah, radon mitigation system installation on a building project with a value of less than $3,000 must be done by a licensed electrical or plumbing contractor. Similar legislation was introduced by Illinois which prohibits an individual from selling a radon detection device without prior approval from the Illinois Emergency Management Agency. Virginia passed legislation establishing the state Department of Health as the state radiation control agency and requiring the state to maintain a list of individuals licensed or registered to conduct screening, testing or mitigation for radon (2009 Va. Acts, Chap. 466).

Illinois, Iowa and New York introduced bills requiring notification of the presence or dangers of radon gas during transfers of real estate. In Iowa, legislators introduced legislation requiring sellers of single-family or two-family dwellings to provide information to buyers describing and explaining the dangers of radon and the benefits of testing for it. Illinois has a bill pending before the governor to require sellers of residential property to disclose that they have no knowledge of elevated radon concentrations or that prior elevated radon concentrations have been mitigated or remediated. A similar bill is pending in New York requiring residential home sellers to disclose the results of radon tests conducted within six months for all houses offered for sale, exchange or lease.

Children’s Environmental Health

During the 2009 legislative sessions, states considered bills to protect children from exposure to pesticides and other toxic substances. Lawmakers also introduced legislation prohibiting the manufacturing of children’s products containing bisphenol-A. Bills were introduced to improve indoor air quality inside schools and day care facilities. Legislators also debated legislation addressing asthma in children.

Eighteen states introduced legislation concerning the manufacturing of products containing bisphenol-A, with Connecticut adopting HB 6572 (2009 Conn. Acts, P.A. 9-103) and Minnesota adopting SB 247 (2009 Minn. Laws, Chap. 40), both banning bisphenol-A in children’s products. Pennsylvania adopted HR 94 urging Congress and the Food and Drug Administration to encourage industry to reduce the use of bisphenol-A in the manufacture of plastic food containers and bottles. In California, legislators are seeking to enact the Toxin Free Infants and Toddlers Act, which would prohibit the manufacture or sale of any food or beverage container that contains bisphenol-A. Hawaii, Massachusetts, New York and Rhode Island have similar bills pending to protect children from bisphenol-A.

Indiana and North Carolina passed legislation to ensure safe air quality within schools. Indiana HB 1097 mandates that the State Board of Education adopt standards concerning indoor air quality for construction, alteration and repair of school buildings (2009 Ind. Acts, P.L. 168). North Carolina allows public schools seeking voluntary child care facility licensure to use an existing or newly constructed classroom, provided it has floors, walls and ceilings that are free of mold and mildew (2009 N.C. Sess. Laws, Chap. 123). Indiana also enacted legislation that requires the State Department of Health to adopt rules regarding indoor air quality in schools and state agencies. Under the legislation, the Indiana Department of Health must report on conditions that are or could contribute to poor air quality such as carbon dioxide, humidity, mold or excess dust (2009 Ind. Acts, P.L. 132).

Eleven states introduced bills providing for the use of environmentally preferable cleaning and maintenance products inside schools, with Connecticut (2009 Conn. Acts, P.A. 81), Hawaii (2009 Hawaii Sess. Laws, Act 13), Maryland (2009 Md. Laws, Chap. 454) and Nevada (2009 Nev. Stats., Chap. 244) enacting legislation requiring schools to use these products. California has legislation pending to establish the Clean and Healthy Schools Act, which requires specified schools to purchase and use exclusively environmentally preferable cleaning and maintenance products.

States also introduced legislation requiring testing or prohibiting the sale of children's products or food items containing lead, mercury or cadmium. Maryland’s bill clarifies which manufacturers and importers of children’s products are required to perform lead testing. The bill also clarifies the type of children’s products requiring testing (2009 Md. Laws, Chap. 129).