By Bennett Liebman
Government Lawyer in Residence
Albany Law School
We have witnessed for many months extraordinary media attention paid to the lead contamination problems in Flint, Michigan. In New York State, we have seen water safety issues raised in the village of Hoosick Falls in Washington County and nearby Petersburgh in Rensselaer County.
The dangers of lead exposure are well established. “Tiny doses of lead cause subtle damage to the developing brains of children that can trigger learning disabilities and violent behavior later in life.” “High lead levels can lead to various cognitive problems, including developmental and behavior issues, such as ADHD, learning disabilities, lower IQ and the possibility of permanent brain damage.” The Centers for Disease Control (CDC) state, “Lead poisoning can cause learning disabilities, behavioral problems, and, at very high levels, seizures, coma, and even death.” The decline in lead exposure since the 1970’s has given rise to “markedly higher IQs, increased economic potential, and, quite likely, considerably lower rates of crime and teenage pregnancy. (Lead poisoning reduces impulse control as well as cognitive functioning.) It feels callous to reduce the protection of young brains to an economic calculation, but the economic benefits have surely been staggering: By one careful estimate, they add up to $260 billion per year.”
Yet, many other areas of upstate New York have lead contamination issues that seem to be far more serious than the problems revealed in Flint. While these New York State problems may be due to apathy and neglect, rather than to specific governmental actions, the data seem to indicate a major need for government actions in certain areas of upstate New York to reduce lead hazards.
What are the exact parameters of the lead exposure for children in New York State? The main source of this data derives from the CDC. The CDC believes that “no safe blood lead level in children has been identified,” but it specifically views lead blood levels above five micrograms per deciliter (µg/dL) as the reference level at which “health actions be initiated.” Until 2012, the 10 µg/dL level was the stated level of concern for lead levels. In 2012, the CDC changed the standard to move to a lower 5 µg/dL level. The CDC no longer utilizes the “level of concern” language but believes that the 5 µg/dL level is the appropriate “reference value to identify children who have been exposed to lead and who require case management.” This finding was based on a number of scientific studies showing that lead blood levels below 10 µg/dL can cause lifelong health effects.” The CDC believes that 97.5% of children from ages 1-5 have blood levels below 5 µg/dL.
In order to achieve the goal of reducing lead poisoning and prevention of lead exposure, the CDC works with most ‒ but not all ‒ states and the District of Columbia to test for lead exposure in children under age six. New York is one of those states that conducts lead testing.
In New York State, the statistics on lead blood levels are divided and separated between New York City and the remainder of the state. New York City would seem to represent a major triumph of public health policy. In 1997, 3.3% of children had lead blood levels above 10 μg/dL. By 2014, that number had been reduced to .29%, well below the national average. In 2014, in New York City, only 2.2% of children had lead blood levels above 5 μg/dL, again a number well below the national average. New York City’s children have a lead exposure level that is 37% below the national average, despite the fact that New York City has some of the oldest housing stock in the nation, especially in boroughs such as Manhattan and Brooklyn.
The picture is not as pretty in areas of New York State excluding New York City (NYS*). The 2014 levels of children with lead blood levels in excess of 10 µg/dL levels was 1.46%, nearly 2.75 times the national level. No state has a higher percentage of children with lead blood levels over 10 µg/dL than NYS*. The percentage of children with lead blood levels of 5µg/dL in NYS* was 6.67%, again a number that is 90% higher than the national average.
To put these statistics into context, in Flint, Michigan, the percentage of children with lead blood levels in excess of 5 µg/dL went from 3.1% in 2013 to 3.9% in 2014, and was at 3.3% in 2015. In the six-month period between October 1, 2014 and April 1, 2015, the percentage of children in Flint with lead blood levels in excess of 5µg/dL was 1.9%. Again, the NYS* numbers are far higher than any of the numbers coming out of Flint.
When you break out the NYS* blood level numbers by county, it also becomes apparent that the suburbs near New York City – which are wealthier and have a statistically smaller percentage of housing built before 1950 ‒ have fewer problems with lead levels. Thus, the lead blood levels in counties such as Nassau, Suffolk, Westchester, Rockland, and Putnam are not anywhere near the average levels of upstate New York.
On the other hand, in upstate New York, most every county has a higher rate of lead blood levels in children than Flint had at its worst times. Only the counties of Dutchess and Hamilton had levels below that of Flint in 2014. There are 16 counties (out of a total of 57 in NYS*) where more than 10% of the children tested had lead blood levels in excess of 5 µg/dL. There are eight counties in NYS* where more than 12% of the children had lead blood levels in excess of 5 µg/dL.
A number of the counties in upstate New York where more than 12% of children had lead blood levels in excess of 5 µg/dL lie along the New York State Thruway corridor. Many of these counties in this traditional rust belt area have an aging housing stock, but their housing stock is generally not as old as the housing stock in Manhattan or Brooklyn in New York City. Brooklyn, with 58.5% of its housing stock constructed before 1950 and with the second highest level of poverty for children under age six in the state, had 2.8% of its children with lead blood levels over 5µg/dL. That is compared to the average lead blood level in NYS* of 6.6%.
These Thruway counties moving from the east towards the west – where more than 12% of the tested children had blood lead in excess of 5µ/dL ‒ include Montgomery (the city of Amsterdam), Fulton (the cities of Gloversville and Johnstown), Oneida (the city of Utica), Cayuga (the city of Auburn), Orleans County (the city of Albion), Erie County (the city of Buffalo) and Chautauqua County (the cities of Dunkirk and Fredonia).
These counties along the Thruway with the highest percentage of tested children with lead blood levels in excess of 5µg/dL were, in order: Fulton (24.7%), Oneida (21.7%) Montgomery (19%), Orleans (17%), Cayuga (15.8%), Erie (13.9%) and Chautauqua (12.3%).
Among the non-Thruway area counties, Washington County – the home of Hoosick Falls ‒ and Yates County in central New York also were counties where more than 12% of the tested children had blood lead in excess of 5µ/dL levels. The percentage of tested children with lead blood levels in excess of 5µ/dL was 15.1% in Washington County. In Yates County, the percentage was 14.7%.
What do these counties with elevated lead levels seem to have in common? Almost all eight counties have a high percentage of housing constructed before 1950. Montgomery County even has a higher percentage of pre-1950 housing units than Brooklyn with 61.7% compared to Brooklyn’s 58.5%.
They also are generally poorer counties. Of New York State’s 62 counties, none of the eight counties mentioned above were in the top third of New York’s wealthiest counties. Except for Erie County, which ranked 21st of 62 counties in per capita income, all the other counties mentioned were in the bottom half of per capita income in New York State.
Finally, while there have been allegations about racial issues involved with lead exposure levels in Flint, that would not appear to be the case in NYS*. Based on the census data, the affected counties are overwhelmingly white.
The percentage of whites in these counties include Yates (97.2%), Washington (94.6%), Fulton (93.8%) Cayuga (91.3%), Chautauqua (89.3%), Orleans (87.8%), Montgomery (85%), Oneida (84.8%) and Erie (80.3%). The overall percentage of the white population of New York State was 70.4%. There might be a racial aspect to lead exposure in Erie County, where most of the tested children apparently resided in the city of Buffalo, but other than in Buffalo, this issue in upstate New York can hardly be regarded as racially based.
There has been some recognition of this upstate lead crisis by public officials, at least in Erie County. In February of 2016, Attorney General Eric Schneiderman “announced that he is investing an additional $346,825 in the Buffalo Green and Healthy Homes Initiative (GHHI Buffalo) to significantly increase the initiative’s home lead hazard intervention and remediation efforts.” New York State Senator Charles Schumer proposed “a new $3,000 homeowner tax credit for any property owner who abates the lead paint problem in a property he or she owns. The tax credit would be available to homeowners earning $110,000 a year or less.” Schumer pointed out that lead exposure for children five and younger was 4% in Flint but 14% in Erie County. The Buffalo News has recognized that young children in Western New York suffer a higher rate of lead poisoning than those in Flint, Michigan, where state officials decided to save a little money by using river water as the city’s water supply.”
Yet, while there has been evidence of some activity in Erie County, there appears to be limited interest in reducing lead exposure in the rest of upstate New York. This is a critical health crisis. It is far worse than Flint. It is also a problem that government can actually solve. Government has greatly reduced lead exposure in the past, and the New York City experience has shown that government can nearly eliminate lead exposure even in poverty-stricken areas with an aging – if not ancient ‒ housing stock. This should not be brain surgery. Political will and a financial commitment can and should eliminate this major New York State health problem.
 Jesse McKinley, “Water in Upstate Village Cleared of Pollutant, Cuomo Says in Visit,” New York Times, March 14, 2016; Jesse McKinley, “Link to Teflon Tainted Water, A Village Fears,” New York Times, February 29, 2016 (dealing with chemical known as PFOA).
 Mary Esh, “Chemical in Water Drawing Fire,” Baltimore Sun, March 18, 2016; Vivian Yee, “Tainted-Water Worries Spread to Vermont Village,” New York Times, March 15, 2016 (also PFOA).
 Michael Hawthorne, “Lead Still Stalks City’s Kids,” Chicago Tribune, May 3, 2015.The blogger Kevin Drum has been most vocal about the linkage between lead exposure and crime. See Kevin Drum, “Lead and Crime: Some New Evidence from a Century Ago,” Mother Jones, January 4, 2015. http://www.motherjones.com/kevin-drum/2015/01/lead-and-crime-some-new-evidence-century-ago, Kevin Drum, “Lead and Crime: It’s a Brain Thing,” Mother Jones, February 3, 2014. http://www.motherjones.com/kevin-drum/2014/02/lead-and-crime-its-brain-thing [last viewed April 11, 2016].
 Michael D. Terranova, County Legislators Must Help Prevent Lead Poisoning,” Buffalo News, April 3, 2016.
 “Childhood Lead Poisoning,” http://www.cdc.gov/nceh/lead/factsheets/Lead_fact_sheet.pdf [last viewed April 10, 2016].
 Jacob S. Hacker and Paul Pierson, “The Real Cause of the Flint Crisis,” Atlantic Online, March 7, 2016 [last viewed April 11, 2016].
 http://www.cdc.gov/nceh/lead/acclpp/blood_lead_levels.htm [last viewed April 10, 2016].
 “Blood Lead Levels in Children,” http://www.cdc.gov/nceh/lead/acclpp/lead_levels_in_children_fact_sheet.pdf [last viewed April 10, 2016].
 See Sarah Frostenson, “America Does a Terrible Job Tracking How Many Kids Have Lead Poisoning,” Vox, February 5, 2016. “Twenty-one states do not regularly submit data to the CDC on lead surveillance programs in their states. Eleven of those 21 states do not submit any kind of lead surveillance data to the CDC — no state-level or county-level data.” [last viewed April 11, 2016].
 For purposes of this paper, the term “children” will refer to all individuals under age six.
 “Number of Children Tested and Confirmed BLL’s ≥10 µg/dL by State, Year, and BLL Group, Children < 72 Months Old, http://www.cdc.gov/nceh/lead/data/Website_StateConfirmed ByYear_1997_2014_01112016.htm [last viewed April 10, 2016]. This is the source utilized for all statewide and national data.
 In general, on this topic see Hacker and Pierson, supra at note 6.
 The closest state to NYS* is Pennsylvania with 1.28% of children with lead blood levels in excess of 10 µg/dL. The percentage of children with blood levels in excess of 10 µg/dL is 14% higher in NYS* than in Pennsylvania.
 “Number of Children Tested,” supra at note 15. It should be noted that the percentage of children’s lead blood levels in NYS* above 10 µg/dL was 6.31% in 1997 and has been reduced considerably over the past two decades. Pennsylvania’s percentage of children with lead blood levels in excess of 5µg/dL is even higher than that of NYS*, reaching 8.5%.
 Michigan Department of Health and Human Services (MDHHS) “Blood Lead Level Test Results for Selected Flint Zip Codes, Genesee County, and the State of Michigan Summary as of April 1, 2016,” http://www.michigan.gov/documents/flintwater/Flint_Blood_Testing_Report_01Apr2016_520549_7.pdf [last viewed April 10, 2016].
 Id. “Of children younger than 6 years old tested between 10/1/2015 and 4/1/2016, 1.9% from Flint zip codes 48501-48507 and 0.3% from an Additional Impacted Location had blood lead levels greater than or equal to 5 mcg/mL.”
 It needs to be noted that there is no indication in the county New York State numbers on how officials determined the sampling size and what areas and/or children inside the specific counties were targeted for testing. All the county data is from “CBLS County-level Summary Data for NY, 2014,” which can be accessed through http://www.cdc.gov/nceh/lead/data/state/nydata.htm [last viewed April 11, 2016].
 3.13%. Again, this data is from “CBLS County-level Summary Data for NY, 2014,” supra at note 22.
 Hamilton, which is New York’s smallest county, had no cases where a child lead blood level exceeded 5 µg/dL. Only 11 children were tested in Hamilton County in 2014.
 These counties are Chautauqua, Erie, Fulton, Montgomery, Oneida, Orleans, Yates and Washington.
 The statistics show that in Manhattan 54.4% of the housing stock and in Brooklyn 58.5% of the housing stock was built before 1950. This data is from the 2000 United States census. “CBLS County-level Summary Data for NY, 2014,” accessed through http://www.cdc.gov/nceh/lead/data/state/nydata.htm.
 The State Thruway does not run through Fulton and Orleans County, but is runs extremely close to these counties.
 For the age of housing as a risk factor, see, Sarah Frostenson and Sarah Kliff,“The Risk of Lead Poisoning Isn’t Just In Flint,” Vox, April 6, 2016, http://www.vox.com/a/lead-exposure-risk-map [last viewed April 11, 2016].
 See generally New York locations by per capita income, https://en.wikipedia.org/wiki/New_York_locations_by_per_capita_income using information from Census data.
 All the data on race in New York is derived from Census Bureau, QuickFacts, New York http://www.census.gov/quickfacts/table/PST045215/36,36029,36115 [last viewed April 11, 2016].
 T.J. Pignataro, Susan Schulman and Sandra Tan, “Legislature Must Still Approve Paying for Lead–Poisoning Initiative,” Buffalo News, March 9, 2016.
 By contrast, see Nicholas Kristof, “When Whites Just Don’t Get It, Revisited,” New York Times, April 3, 2016.
 http://www.ag.ny.gov/press-release/ag-schneiderman-announces-funding-fight-childhood-lead-poisoning-buffalo-0 [last viewed April 8, 2016].
 Jerry Zremski, “Schumer Proposing Tax Credit, Buffalo News, February 25, 2016. https://www.schumer.senate.gov/newsroom/press-releases/schumer-announces-new-legislation-to-combat-major-lead-crisis-plaguing-upstate-ny-senator-says-congress-must-vote-on-bill-to-help-homeowners-in-upstate-ny-remove-hazardous-lead-from-their-homes [last viewed April 8, 2016].
 “WNY’s Catastrophe; High Rate of Lead Poisoning in Children Cries Out for a Many-Sided Plan of Action,” Buffalo News, March 6, 2016.