News from the NYS Assembly Committee on

Sheldon Silver, Speaker · Thomas P. DiNapoli, Chair · December 2004

Message from the Chair

This year marks my third legislative session as Chair of the Assembly Standing Committee on Environmental Conservation. This session I have been successful in enacting new laws to deal with mercury labeling and disposal and banning toxic flame retardants.

However, with toxics, as with other environmental issues, there is still much more work to be done. Our water, air, land, and climate remain at risk. The Assembly has taken action on a number of bills to safeguard our vital natural resources, including bills to protect wetlands, to reduce the sulfur content of diesel fuel and home heating oil, to ensure that smart growth principles are implemented by state agencies and to slow global warming by reducing carbon emissions from power plants. These measures are all awaiting action in the Senate.

In addition, I have convened hearings this year on a variety of important issues including Long Island's water resources, the open burning of garbage, the health and environmental safety of our schools, vaporization of contamination into indoor air, and expansion of natural gas and oil development.

Finally, there are a number of crucial environmental issues that I continue to work on including the implementation of the new Brownfields Cleanup Program, the passage of the expanded Bottle Bill and full-funding for the Environmental Protection Fund.

This newsletter provides an update on many of these issues and new initiatives that are in development. Thank you for your interest and support for a cleaner and healthier New York. For further information on these issues, please call my office at (518) 455-5192.

Thomas P. DiNapoli, Chairman
NYS Assembly Environmental
Conservation Committee

Mercury Labeling and Disposal Bill Signed Into Law

photo Assemblyman DiNapoli and his nephew, Nicholas, examine the "Spidey-2" watch, which Kellogg agreed to discontinue after DiNapoli's mercury labeling and disposal legislation was signed into law.

Following the Governor's signing of Assemblyman Tom DiNapoli's Mercury Labeling and Disposal Bill (A.10051-B) on July 12, Kellogg announced plans to discontinue the use in its cereal products of promotional toys identified as a possible environmental risk.

Kellogg, the world's leading cereal manufacturer, included a "Spidey-2 Signal" toy in boxes of Kellogg's Frosted Flakes. The toy, which attaches to a child's wrist, shines a beam with a pattern to look like a spider web. The battery contains mercury, which, when released into the environment through improper disposal or breakage can contaminate the air or groundwater.

Pursuant to an agreement with New York Attorney General Eliot Spitzer, Kellogg has agreed to phase out the distribution of all promotional products containing mercury. Approximately 17 million toys are involved in the promotion. Consumers
photo Assemblyman DiNapoli and Attorney General Eliot Spitzer have worked on many environmental and regional issues together. This year Spitzer and DiNapoli teamed up to address the mercury disposal issue.
will be provided with a prepaid package to return promotional toys containing mercury to Kellogg, which has agreed to properly recycle them.

Assemblyman DiNapoli, Chair of the Assembly Environmental Conservation Committee and the legislation's sponsor, said, "Mercury from our waste streams poses a toxic threat. This law is an important step in reducing that threat by limiting its sale and use and ensuring proper disposal."

The law bans novelty products containing mercury in New York State and requires products containing mercury to carry a warning that mercury is present and that the product has to be disposed of properly through an authorized hazardous waste facility.

Other provisions of the law call for the banning of mercury in classrooms and the creation of an Advisory Committee on Mercury Pollution. The Committee will report on the extent and health effects of mercury contamination, methods and costs associated with reducing risks from mercury contamination and other related topics.

The ban on the use of mercury in schools took effect at the start of the 2004-2005 school year. The other provisions of the law take effect on January 1, 2005.

Congressman Steve Israel and
Assemblyman Tom DiNapoli
Hold Joint Federal-State Hearing on
Environmental Health

Assemblyman DiNapoli and Congressman Israel listening to testimony at the Environmental Hearing.

Held on October 21, 2004 at the Cold Spring Harbor Laboratory's Human Genome Center, the hearing focused on the correlation between environmental pollution and chronic diseases such as cancer, Parkinson's, diabetes, asthma, and birth defects. It included testimony from leading environmental health scientists and advocates, and was attended by over 100 people.

Numerous speakers, including Congressman Steve Israel, emphasized the need for significantly greater funding for environmental health research. Many stressed the importance of translating what scientists know into information the public and policy makers can use to take action. Assemblyman DiNapoli praised the National Institutes of Environmental Health Sciences (NIEHS) for adopting a model of scientific research that includes the active involvement of advocates and community members. Dr. Philip Landrigan, from the Center for Children's Health and Environment at Mt. Sinai Hospital, and Dr. Frederica Perrara, from the Columbia University School of Public Health, called for adequate federal and state investment in studies that track the impact of exposures over time - including the National Children's Study (a comprehensive effort to track the affects of environmental exposure from before birth to age 21). Dr. Landrigan also called for the creation of a system of Centers of Excellence in Environmental Pediatrics across New York State that would work to diagnose, address and prevent environmental disease in children. Karen Miller, of Prevention is the Cure, emphasized the importance of taking precautionary action to prevent disease by reducing toxins in our environment.

Assemblyman DiNapoli plans to follow up on the hearing with efforts to support environmental health research at both the state and federal level, and with initiatives to reduce toxic chemical use in New York State.

Precautionary Principle

Should we have to prove beyond a reasonable doubt that a product or new chemical is dangerous before we stop using it? Should we have to prove definitively that pesticides or other chemicals cause cancer before we try to restrict their use? Or, should we be taking a precautionary approach?

The 1998 Wingspread Statement on the Precautionary Principle summarizes the principle as follows: "When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically."

The greatest weakness in most existing conservation and toxic policies is that they are based on the expectation that science can and must provide definitive proof of harm before protective action is taken. The Precautionary Principle can help us make wiser decisions in the face of uncertainty.

Working with Long Island's breast cancer activists, environmentalists and public health experts, the committee is developing a legislative package to encourage the implementation of the Precautionary Principle in various aspects of New York State policy. Bills being drafted include measures that would:

  • Establish the Precautionary Principle as a guiding principle for all New York State agencies, particularly the Department of Health and the Department of Environmental Conservation.

  • Create a Precautionary Principle Board that would guide and review agency actions to implement the Precautionary Principle.

  • Require state agencies to give preference to green products, green services, green projects and green companies in their procurement and contracting policies.

Other proposals under consideration include bills to provide for biomonitoring, educate citizens, require hazard or green labeling, and establish an environmental leadership program that would reward "green" companies and other pollution prevention measures.

Precaution does not work if it is used only as a last resort or results in only bans or moratoriums for proven dangers. It is in the interest of all New Yorkers that the State move toward a proactive precautionary approach that fosters technological innovation and helps build a sustainable economy that is protective of public health and the environment. The Committee continues to explore legislative initiatives to promote the implementation of the Precautionary Principle in New York State.

Global Warming Threatens New York

With concern about global warming increasing, Chairman DiNapoli has introduced legislation (A.10049) to address this issue by requiring New York's major electric generating facilities to cap carbon dioxide emissions.

The impact of global warming on the public health, environment and economy of New York is a matter of growing distress. Global warming threatens New York's environment and economic security through projected changes in temperature, precipitation and sea level. These changes harm natural ecosystems and threaten industries such as agriculture, forestry, fishing and tourism. Furthermore, the health of New Yorkers is threatened by global warming and scientists have concluded that reducing greenhouse gas emissions will decrease air pollutants that are known to cut lives short and trigger respiratory ailments such as asthma.

A significant cause of global warming is the emission of air pollutants known as greenhouse gases, including carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. Among the greenhouse gases, carbon dioxide is emitted in the greatest amount and is of primary concern. New York State, as a world economic power in its own right, is a major contributor of world greenhouse gas emissions.

Control and reduction of emissions of greenhouse gases are critical in order to slow and reduce the effects of global warming. Fossil-fuel burning electric generating units are the largest individual sources of carbon dioxide. Control of emissions from electric generating units is necessary for New York to reduce the threat posed by global warming, and Assemblyman DiNapoli's bill will accomplish that by capping major electric generating facilities' carbon dioxide emissions at 25% less than the total 1990 level by January 1, 2008. The bill was approved by the Assembly and awaits action by the Senate.

Flame Retardant Ban Bill Passes

Assemblyman DiNapoli's bill (A. 10051-B) to restrict the use of flame retardants and create a State task force on flame retardant safety has passed both houses of the Legislature and was signed by the Governor in August of this year. The bill would prohibit the manufacture, processing, or distribution of certain brominated flame retardants.

A task force will study the risks associated with decabrominated diphenyl ether (BPDE) and the availability, safety, and effectiveness of flame retardant alternatives.

Manufacturers of consumer products commonly add flame-retardant chemicals to plastics and other flammable materials, such as polyurethane foam and commercial textiles, to reduce the risk of fire. Brominated flame retardants escape into the environment during manufacture, use, and disposal of products containing this flame retardant. Studies suggest that the flame retardant additives widely used in upholstered products persist in the environment and are passed on to babies in the womb and may cause damage to the nervous system during development and disrupt thyroid endocrine balance. Researchers believe that they may impair intelligence and motor skills in children.

Assembly Hearings Focus on Great Lakes Basin

photo Looking over the map of the Great Lakes Basin at the Buffalo hearing are (from L to R): Assemblyman Koon, Assemblyman Smith, Assemblyman DiNapoli and Majority Leader Tokasz.
The Great Lakes Basin was the focus of two hearings held this year by the Assembly Committee on Environmental Conservation. The first hearing, held in Rochester with the Legislative Commission on Toxic Substances and Hazardous Wastes, focused on water quality and water management. The second hearing in Buffalo was co-sponsored by the Assembly Majority Leader, Paul A. Tokasz, and focused on the proposed agreements to manage new water withdrawals and diversions in the Great Lakes Basin.

The Great Lakes are one of New York's most important natural resources. Approximately 80 percent of New York's fresh surface water, over 700 miles of shoreline, 48 percent of New York's land, and 21 percent of the population of the State are contained within the Great Lakes Basin. In New York State, the Great Lakes Basin includes the drainage basins of Lake Ontario, Lake Erie, the St. Lawrence River, the Finger Lakes, and the Lake Champlain River Basin. Furthermore, the Great Lakes hold approximately 95 percent of the fresh water in the United States and 20 percent of the world's fresh surface water supply.

To manage the waters of the Great Lakes effectively, the eight Great Lakes States and the Provinces of Ontario and Quebec adopted the Great Lakes Charter in 1985. On June 18, 2001, the Great Lakes Governors and Premiers of Ontario and Quebec signed the Great Lakes Charter Annex 2001, an amendment to the 1985 Charter, in which the Governors of the eight Great Lakes States, and the Premiers of Quebec and Ontario agreed to develop measures to protect, conserve, restore, and improve the Great Lakes Basin for future generations. These agreements were developed, in part, as a response to growing demand for water both in and outside the basin, including expected pressure to divert water from the Lakes in the coming decade. This was highlighted in the spring of 1998 when the Province of Ontario approved a permit (which was later rescinded) that would have allowed the removal of 60 million gallons of water per year from Lake Superior to be sold in Asia.

In addition to concerns about retaining adequate water quality to ensure the integrity of the Great Lakes ecosystem, there are numerous environmental quality issues that need to be addressed in the Great Lakes Basin. The aquatic systems of the Great Lakes Basin continue to show the effects of decades of toxic pollution. Persistent pollutants such as polychlorinated byphenyls (PCBs) and mercury, which have accumulated for decades in the basin have worked their way up the food chain and now pose a significant threat to people who eat contaminated fish and wildlife. New York is home to six of the 42 Areas of Concern identified by the U.S. - Canada Great Lakes Water Quality Agreement. The contamination in these areas of concern continue to pose an unacceptable risk to public health and environmental quality in the Great Lakes Basin. The aquatic systems of the basin are also under assault from the spread of invasive species, including zebra mussels, one of the basin's most notorious invasive species.

The two Assembly hearings examined all of these water quality and water management issues, and the information gathered is integral to the Assembly's on-going work to protect the Great Lakes.

Protecting Our Fresh Water Wetlands

Wetlands provide a crucial element in our ecosystem. They improve drinking water quality by providing a buffer zone to intercept polluted runoff before it contaminates our lakes, rivers and coastal waters. Wetlands also act as natural water filters, absorbing pollutants, pesticides, nitrogen, phosphorus and other contaminants before they infiltrate our drinking water. Additionally, wetlands absorb flood waters and serve as buffers during storms - saving millions of dollars in property damage annually.

New York State currently regulates fresh water wetlands that are 12.4 acres or greater in size and that are shown on wetlands maps issued by the NYS Department of Environmental Conservation (DEC). The Army Corps of Engineers had previously regulated isolated wetlands in New York State. However, a recent U.S. Supreme Court Decision concluded that the federal government did not have the authority to regulate "isolated" wetlands, thus leaving a gaping hole in New York's oversight of freshwater wetlands smaller than 12.4 acres. Simply put, isolated wetlands (those areas that are not navigable waters or adjacent to navigable waters) are currently not being regulated in New York State.

That is why Assemblyman DiNapoli introduced legislation (A.7905A) to address this problem. This wetlands protection bill would reduce the size threshold for wetland regulations from 12.4 acres to 1 acre, (or smaller, if adjacent to a water body or of special significance). This measure would also remove the mapping requirement as a prerequisite for wetland regulation.

We need to protect our state's precious wetland resources because they are essential to safeguarding our drinking water, alleviating flooding conditions, providing recreational opportunities, maintaining fish and wildlife habitat and promoting a healthy economy. The DiNapoli wetland legislation will close a loophole and strengthen New York State's commitment to safeguarding our environment.

New Brownfield Law Moves Forward

The comprehensive legislation that established New York's new Brownfield Cleanup Program and refinanced its Superfund Program was signed into law on October 8, 2003.

The legislation has revitalized efforts to clean up and reuse contaminated sites across New York State. Prior to the adoption of the new statute, the State's Superfund Program, which is used to address the most contaminated sites, had run out of funding, and unlike other states, New York did not have a Brownfields program authorized by law. Just nine months since the adoption of this new law,129 brownfield sites have entered the new program and cleanup efforts are once again underway at Superfund sites across the state.

The Department of Environmental Conservation (DEC) and the Department of Health (DOH) have responded to hundreds of requests for applications and the agencies are moving forward with all aspects of the program. Important steps by DEC and DOH have included hiring additional staff, issuing a proposed method for developing soil cleanup standards, circulating program guides and soliciting applications for Brownfield Opportunity Area (BOA) grants. The agencies are working toward the issuance of draft regulations, and as with each step in this process, the Assembly will continue to exercise oversight to ensure that the program is being implemented properly.

Communities across New York State are challenged by sites that are contaminated with hazardous substances. On Long Island, for example, we have sites that have contamination resulting from a wide array of industrial and commercial activities. The new statute provides a framework and important incentives that will speed the remediation and reuse of those sites. Long Island and all of New York State will benefit from the redevelopment, revitalization and cleaner environment that will be the result of the new Brownfields Law and the refinanced Superfund program.

In August, the Assembly and Senate passed a package of technical amendments to this statute to further ensure a successful implementation of the law. This bill was signed into law in October 2004.

Task Force Tackles Invasive Species

Invasive plant and animal species pose an unacceptable risk to New York's environment and economy and this risk is increasing as more invasive species become established. Invasive species are having a detrimental effect upon the state's fresh and tidal wetlands, water bodies and waterways, forests, meadows and grasslands, and other natural communities and systems. These invasive species damage the environment by out-competing native species, diminishing biological diversity, altering community structure and, in some cases, changing ecosystem processes. The economic impact of invasive species is also alarming with an estimated cost to the national economy of as much as $137 billion dollars annually.

In response, a new law, authored by Assemblyman DiNapoli, established the New York State Invasive Species Task Force. With the inaugural meeting on April 23, 2004, the Task Force moved into high gear, identifying specific ecological, social, agricultural, economic and recreational impacts of invasive species.

The new Task Force members have unanimously agreed that education, prevention, early detection, and rapid response are keys to success. Also recognized as critical components of invasive species planning are coordination, control and management; restoration; international cooperation; research; information management, risk assessment, prioritization, database compatibility, integrated pest management practices, and of course, funding.

The final work product from the New York State Invasive Species Task Force will be a report delivered by November 30, 2005 to the Legislature and Governor with specific recommendations for tackling the invasive species threat.

photo Assemblyman Tom DiNapoli met with members of Environmental Advocates to discuss their legislative agenda and the Assembly's environmental priorities. (Back row from L to R) Helen Chapman, J. Henry Neale, Jr., Blaikie Worth, Assemblyman DiNapoli, Steve Allinger and Christine Vanderlan. (Front row from L to R) Jay Halfon, Lisa Strinkler, Anne Reynolds and Julie Robbins.

Low-sulfur Fuels for
a Healthier New York

The high sulfur content of diesel fuel and home heating oil poses a health threat to New Yorkers. The emissions from engines and furnaces burning these fuels contribute to poor air quality and have been linked to numerous health impacts, ranging from premature death to the aggravation of asthma and allergy symptoms.

The exhaust particles from diesel-powered engines have also been listed as a possible human carcinogen by the United States Environmental Protection Agency. Further, the association representing the state air pollution regulators (STAPPA) has found that diesel exhaust particles were the likely cause of some 25,000-lung cancer cases during a 70-year time frame. Diesel exhaust particles now appear to be a more potent carcinogen than second-hand smoke - which kills more than 3,000 New Yorkers each year.

In recognition of these health concerns, the federal government has taken steps to reduce the sulfur content of on-road (cars and trucks) and off-road (construction equipment and tractors) diesel fuel. Assemblyman DiNapoli's legislation (A.3923-A), which has passed the Assembly, would speed up the timetable for reducing the sulfur content of on-road and off-road diesel fuel, and would also require low-sulfur home heating oil in New York State. Similar legislation, sponsored by Senator LaValle, is pending in the Senate.

Environmental Conservation

During the 2004 Legislative Session, the Assembly Environmental Conservation Committee moved a number of bills out of Committee. For a bill to become law, it must pass both the Assembly and Senate and be approved by the Governor. Here are some measures acted upon:

Prohibiting the Possession of Wild Animals as Pets: Prohibits the possession of wild and exotic animals as pets in order to help protect the health and safety of New York residents. (Chapter 692)

Shellfish Aquaculture in Peconic and Gardiner's Bays: Clarifies Suffolk County's ability to lease certain underwater lands for shellfish cultivation in Gardiner's and Peconic Bays and establishes a statutory framework for such leasing. (Chapter 425)

Lobster Management: Deals with the continuing decline in Long Island's lobster population, by providing the Department of Environmental Conservation (DEC) with the authority to adopt regulations to implement conservation measures that affect landings of lobsters in specified management areas. (Chapter 388)

Promoting Venison Donation: Provides for a voluntary one dollar contribution to support venison donation programs for the poor on all hunting and fishing license applications administered by the Department of Environmental Conservation. (Chapter 254)

Prohibiting the Open Burning of Solid Waste: Bans the open, outdoor incineration of most household wastes in so-called "burn barrels". (A.5884; Passed Assembly)

Healthy, Safe and Energy Efficient Outdoor Lighting Act: Sets energy-efficient outdoor lighting standards to minimize light pollution, protect privacy and conserve energy. (A.6950-D; Passed Assembly)

Promoting "Smart Growth": Requires state spending on new roadways, utilities and other infrastructure to be consistent with smart growth principles. (A.8651-A; Passed Assembly)

Electronic Waste Management and Recycling: Establishes an electronic equipment recycling program within the Department of Environmental Conservation to provide for the proper collection, storage, transportation, processing and recycling of electronic equipment which contains hazardous materials; provides assistance for development of electronic equipment recycling programs. (A.3633-A; Passed Assembly)

Source Separation and Recycling: Provides for source separation and disposal of recyclable materials and specifies which materials, at a minimum, must be included in local recycling laws. (A.8462; Passed Assembly)

Reducing Unnecessary Pesticide Use by the State: Phases out the State use of pesticides in favor of predominantly non-chemical pest control systems. (A.5969-A; Passed Assembly)

Assemblyman Thomas P. DiNapoli
Chairman, Assembly Committee on
Environmental Conservation
Room 625 LOB · Albany, NY 12248 · 518.455.5192

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