PEE £^ 3:3 16 : 06 FROM BARF NEER IMG

. I angary 18.1991

N<>vcmlx:r29, IWO

MEMORANDUM. Uits<;d upon suspected drug activity, on June 30, 1989 a searchwarrant *-a$ obtained and executed at the address of 353 81siAvenue Northeast, Spring Lake Park, Minnesota. Officers from theHenrcpin County Sheriff's Department, the Fedeeal Bureau ofInvestigation. Spring Lake Park Police Department and BlainePolice Department participated,

The residence was owned by Residing atthe residence was . (he appellant, and appellant's threeyoung children. The officers proceeded to the rear door Of (heresid>:nce. knocked on the door, and the appellant answered. Theofficers identified themselves and indicated that they had a searchwarriint. Appellant allegedly refused entry umil officers threatened10 break down the door. She then admitted the officers. At the timeof ih< search, the house was occupied by the appellant, Mr. ,and t w three small children.

At the beginning of the search the officers found plastic baggiescontaining approximately one ounce of methampheuminc in thekhch-sn cupboard next to the children's cups. The appellant, whenquestioned, indicated she had forgotten about that but that there wereno otter drugs in the house. A subsequent search of (he bedroomdisclosed a paper sack with $8,800 in cash under the waterbed, andSi, 150 in cash ontop of the dresser. Also found wts a black pursebelonging to the appellant, containing, in addition to the personaleffects of the appellant, a baby sock with eight smalt baggiescontaining methamphetamine, a plastic syringe bag with ten baggiescontaining methamphetamine, $276 cash, a spoon with traces ofwhite powder, 20 syringes, and a bottle of cotton. In the bedroomclose a nyicn tote bag contained six plastic bags, several of whichcontained methamphetamine of approximately more than onepound.

After the officers found the drugs in the bedroom, the appellantallegedly advised the officers that the drugs belonged to Mr. and there were no other drugs in the house since he kept themone place. A further search of the house revealed the following: acardtoard box in ihe fromroom closet containing three scanners;two !rnall address books in the kitchen; a brown bag containingsyringes, spoons and plastic bags in the garage; a book containingchemical formulas in the basement TV room; a significant numberof cameras in the bedroom closet; an Ohaus scale in the basementoffice; a Dazey sealer, 100 plastic bags, and One bag containingmeth amphetamine in the basement office; and a bag efface masks,ihree phones, and one electric "Meiller" scale in (he basementoffice.

Both appellant and were arrested. wasInter charged with felony possession of narcotics. No testimony wasintroduced wiih respect to criminal charges, if any, filed against theappellant for controlled substance possession. Further investigationresumed in a felony charge against the appellant for welfare fraud(ihefi by swindle), since it was subsequently determined that theappellant failed to inform officials that was ihe father.of her children.

The appellant at the time of her arrest admitted she WAS a narcoticsuser, injecting them through the use of syringes. At trial appellantdenied any knowledge of the narcotics except for those containedin hei purse. She asserted that with young children present she wouldnot permit significant quantities of narcotics in the house. She didadmit that she knew that Mr. was dealing in controlledsubstances.

One of the important Clements in determining whether appellantlud possession of the drugs was whether she knew of their existence.&i$e J upon the tcsnmony and the conversation with the officers atthe ti TIC of her arrest, we find it inconceivable that she did not knowof tlv:ir existence. Sonw of ihe controlled substances were in (hekitchsn cupboard, which she initially indicated to the officers thatshe ' had forgotten about." At the time of th« search she indicated:o the officers that the drugs would likely all be found in onelocation. Obviously she knew that there were drugs in the resS*ic -n;iv not hitvc known from time to nmc where Mr.

1

Finance and Commerce Supreme Court liditStashed the (Iruys or how m i M i i WL,« , : here . I: :s civ.':1 ;.':,i AVIC. B.IMwas dealing in drugs. However. )om; POSM.-SM.MI rp.jp. c *..',; whtdrugs are legated *n an ;tre;i shared by two persons or'iri .1 contrruarea if it apaears (hat both panics knew or Simula h;c.c >,nownihe existence of the drugs ,

Minn.Stat. 297D.12, Milxl . 3. st;i:c* as follows:Subd, 3. Standard of rmx*f . The utx ;ind penal MCSassesred by the commissioner :irc presumed to be- v;ihdand correctly determined and assessed. The hyrdcn isupon the taxpayer to show ihcir incorrectness or rn-validity, , . .

We find from a review of the evidence. piir t ici ' l i>rlyiht;<ii i*iemenof the appellant during execution of irtc search warrant. ;ogcth-with the location of the drugs, that inc appellant has failed to pro*.that she did not have joint possession of the drugs alone wi th Jot-

. The Order of the Commissioner is therefore affirmed.A.CR.

S T A T E OF MI N N E S O T AOf MCI. 01 ADMINISTRATIVE HEARINGS

RELEASED JANUARY 8, 19913-2200-5005-!

.^TEOTMWNESOtA* ADMINISTRATIVE HEARINGS

In the Matte: of ProposedPermanent Rules REPORT OF THF-Governing Standards and ADMINISTRATIVEAbatement Methods for Lead LAW JUDGEin Bare Soil on Playgrounds andResidential Property, Minn. Rules,Pts. 4750.001010 4750.0050.

The above-entitled matter came on tor hearing before Admimsir:tive Law Judge Alien E. Giles on November 5. 1990. at 9:30 a.rrin the Boarc Room, Lower Level. 520 Lafayette Road North. 5Paul, Minnesota and on November ?,.'l990,' at 10:05 a.m. in :!•Conference Room of ihe Pollution Control Agency. 1450 EnerjPark Drive, St. Paul, Minnesota,

This Report is pan of a rxilemalcing proceeding held pursuant tMinn. Stat. 14.131 to 14.20, to hear public comment, to dcum:.-:whether ihe Minnesota Pollution Control Agency (MPCA) hafulfilled all relevant suhsunnvc and procedurafrequircmcnisoflav-applicable to the adoption of ihe rules, whether (he proposed ruleare needed and reasonable and whether or not modifications to thruk-s proposed by ihe MPCA alter i n i t i a l publication are impcrm^sii'U'. substantial changes.

Alan R. Mitchell, Special Assi.iun! Attorney General, Suite 20C520 Lafayette Road, Si, Paul. Miniu^-i 55155. appeared on behalof the MPCAai both hearings. The MPCA's hciiring panel consistc.of Placida Venegas, Cindy Perusse, itr.d Sharon Meyer.

Twenty persons attended the f i r s t hearing. Thirteen personsigned the hearing register. As a resuii of the public interest and thneed for every interested person to he allowed ihe opportunity t<commeni, ihe Administrative U>w JvOge reccsscO the hearing at thend of ihe day and continued ihe m;»icr un t i l November 7, 199CThe hearing wax reconvened ai ihe MPCA office- in Energy P^kSt. Paul, On November 7. (W). Sine*: the origin*! hc»r ingr<KirnwaAOI available. MPCA si;tt'f c^niucted hy wlcpht-ne alt ihose personwho signed he hearing rc^isicr ^nd .eft a nonce M the first hcann;locationof where the wconv«ncJ rwan ngwi mid lake-iploce, The sta;of the heating was detoyed ..pproxim;it«l> tww-hall hour to perm;any persons going to ifw firs t uxrumw u» find the new loctnorEleven persons mientWO the reconverted hearing. Two peru»n

F R O M EHPP 640

and Commerce S^uprcin^Court Edition Jiinu.m IS. 19'JIi; regi.sicr. Ooih hearings amnmwd -jnii l ;i|[ i n t e r -

persons, groups or awociairoasliaJ anopponytiiiy to be ho;irJconcerning the idoption of these ruies.

A lotal of £i exhibits were were received as documentar)evidence during, the hearings. The MPCA submitted Exhibits 1-52and 61. Interested party Mr. Patrick L. Reagan. Minnesota UadCoalition, subrnticd Exhibits 53 and 55-57. Interested Party Ms.Judy Adams, Uiad Free Kids, Inc., submitted Exhibits 58-60. TheMinnesota Department of Health submitted Exhibit 54.

The record remained open for the submission of written com-ments for twenty calendar days following the date of the secondhearing, to November 27,1990. Pursuant to Minn. Slat. 14.15, subd.1 (1988), three business days were allowed for the filing of respon-sive comments, ^t the close of business on November 30,1990, (herulemaJeing record closed for all purposes. The Administrative LawJudge received 8 written.comments from interested persons duringthe comment nsriod. The MPCA submitted written commentsresponding to matters discussed at the hearings and making changesin the proposed rules.

This Repon must be available for review 10 all affected in-dividuals upon request for at least five working days before (heagency takes any further action on the rule(s). The agency may thenadopt a final rut: or modify or withdraw its proposed rule. If theBoard makes changes in the rule other than those recommended inthis report, it mu:;t submit the rule with the complete hearing recordto the Chief Administrative Law Judge for a review of the changesprior to final adoption. Upon adoption of a final rule, the agencymust submit it to the Revisor of Statutes for a review of the form ofthe rule. The ajency must also give notice to all persons whorequested to be informed when the rule is adopted and filed with (heSecretary of Star.;.

Based upon all the testimony,exhibits, and written comments, theAdministrative Law Judge makes the following:

FINDINGS OF FACTProcedural Requ rcments

1. On September 24, 1990, the MPCA filed the followingdocuments with the Chief Administrative Law Judge:

(a) A copy of the proposed rules certified by theRevisor of Statutes;(b) An I:sue Statement requesting an AuthorizingResolution;(c) The Notice of Hearing proposed to be issued; and,(d) The Statement of Need and Reasonableness(SONAR).

2. On Septemb:r 27, 1990, the MPCA transmitted a facsimile ofthe Order for Hearing to (he Office of Administrative Hearings(OAH).

3. On September 28, 1990, the MPCA mailed the Notice ofHearing to all persons and associations who had registered (heirnames with the BMrd for the purpose of receiving such notice.

4. On October 1, 1990, the MPCA filed its Notice of Intent toAdopt Rules with OAH.

5. On October 1, 1990, a Notice of Hearing and a copy of theproposed rules wore published at 15 State Register 82S.

6. On October ?', 1990, the MPCA filed the following documentswith the Administrative Law Judge:

(a) The Notice of (tearing as mailed;(b) A photocopy of the pages of (he State Registercontaining the Notice of Hearing and the proposedrules.(c) a cof-y of the Notice of Solicitation of OutsideOpinion together with all materials received inresponse to that notice.(d) The Agency's certification (hat its mailing listwas accurats and complete;(c) The Affidavit of Mailing the Notice to all personson the MPCA's mailing list;(f) The Agency personnel who would represent it aithe hearing; and,(g) A statement by MPCA's counsel that the rules

My public txwicx 11) CXCCSx <>l $KKJ,0(X; per iL-.ir ovciihe ncxi iwo-ywr peritxl.

1. TheMPCA was icquired (o change ihy locution of tin;hearing, held On November 7. 1990, through circumsumces outsidethe control of the Agency. The room named in ihe Notice of Hearingas the location of the public hearing was unavailable for the tearingon November 7, 1990. The locaiion of the hearing WM moved 10 theMPCA's Energy Park office, Notices were posted at the originallocation informing interested persons of the change, MPCA staffcontacted all (hose persons who signed the tearing register hytelephone and advised them of the change. Under these circumstan-ces, the change of locaiion for the second hearing from thai statedin the Notice of Hearing does not constitute a defect.Naiure of (he Proposed Rules and Statutory Authority..

8. The Minnesota Legislature, pursuant to Minn. Stat. 144.878(1990), has directed the MPCA and ihe Minnesota Department ofHealth (MDOH) to promulgate rules that seek to acheive ;i safeenvironment for vulnerable populations (primarily children) andreduce the blood lead level of persons adversely affected by existingenvironmental lead connminalion. These proposed rules establisha standard for lead found in the soil of residential property andplaygrounds and specif) methods of abatement of soil in violationof the standard. A rulemaking proceeding has been initiated by theMinnesota Department of Health that will set standards for leadpaint, lead in drinking water, and lead coniarmnauon of dust. Therules from the MPCA and the MDOH are intended to operate mtandem to alleviate the harmful effects of lead in persons' bloodstreams. Reference will be made 10 the MDOH proceeding whereappropriate.

Minn, Stat. 116.53, subd. 1 and 144.878 (1990) require theCommissioner of the MPCA to adopt standards for lead m bare soilon playgrounds and residential properly by January 3!. [991. TheAdministrative Law Judge concludes (hat the MPCA has suuuioryauthority to adopt these rules,Small Business Considerations in Rulemaking.

9. Minn. Swt. 14.1)3, subd. 2, provides thai state agenciesproposing rules affecting small businesses must consider methodsfor reducingadverse imp-ict on those businesses, The proposed rulesset a standard of general application. The .scope of thai standard islimited to residential property or playgrounds. The only area inwhich small businesses m»y be affected by these rules is in iheregulation of abatement methods, .since small businesses may beabatement contractors.. The MPCA suggested thai the varianceprocedure for abatement methods would be adequate 10 relieve anyundue hardships on small businesses. See SONAR, IK 27. TheMPCA asserted that any other changes to favor smalt businesseswould defeat the agency's statutory mandate. Id. No small busi-nesses claimed an adverse impact would result from the operationof these rules. The MPCA has rrwi the requirements of Minn. Suit.14.115, subd. 2 to consider methods of reducing the impact of rhcrules on small businesses.Fiscal Notice.

10. Minn. Stat. 14.11, subd 1. requires the preparation of a fiscalnotice when the adopt ion Qf. a rule will result in the expenditure ofpublic funds in excess-of $100,000per year by local public bodies.The notice must include an estimate of the total crwt to local publicbodies fora two-year period. MPCA, through its counsel, has siatcdthat it does not expect the proposed rules to require the expenditureof that amount in either of the (wo yean following the adoption ofthe rules. The only manner in which the rule could require anyexpenditure of public funds ii by requiring abatement of soil inpublic parks which exceed (he soil lead siandurd. Evidencepresented at the hearings suggests that the current lend levels in suchparks are well below (he standards suggcsied by any of the commen-tators Or the MPCA. See Exhibit S3 (Laid Coalition Exhibi t 2, at 3ind 16); see alto Exhibit 13. The extremely law soil lead levels ofthe parks compels the conclusion th;it any ahmemeni costs imposedby the rule will be minimal. The proposed rules w i l l not requireexpenditures by local governmental unii* or school dis t r ic ts inexcessOfSlOO.OOOineithsrofthetwovcars immediately

E H ^ P iEEPlNi.5

January 18, 1991

;<oopt on, <md thus no noiicc is needed.!mp:K i on Agricultural Land.

11. MI an. Stat. 14.11, subd. 2(1988), imposes additionalsiiiiuiory requirements when rules are proposed that have a "directand substantial advene impact on agricultural land in this state."The statutory requirements referred to are found in Minn. Stat. I7.$Qto P.84. The evidence presented ai the hearing clearly indicatedthai the problem of soil lead contamination is almoct exclusivelyconfined to urban areas. The proposed rules will have no substantialadverse impact on agricultural land within the meaning of Minn.Stai. 14.11, subd. 2(1988).Economic Impact of (he Proposed Rules.

* 12. Minn. Stat. 116.07 subd. 6 (1988) require* the MPCA. in aruSemaking context, to consider the impact which economic factorsrruy nave on the feasibility and practicability of the proposed rules.In its SONAR, the MPCA has undertaken • comprehensive analysisof eccnomic factors related to the implementation of the proposedruies. In the analysis the MPCA has considered anticipated costsand benefits of the proposed rules. Based on this analysis the MPCAhas determined that the proposed rules will provide substantialpublic benefits while having only a negligible economic impact onthe affected sectors- The MPCA has adequately considered theeconomic feasibility and practicability of implementation of theproposed rules as required by Minn. Sut. 116.07, tubd. 6.Proposed Rule 4750.0010 • Applicability.

13 Thi* proposed rule pan sets forth the scope cf the soil ruleswith -egard to sites and persons. Originally, the proposed ruleapplied to "a property owner who is performing or has been orderedto perform abatement of lead In bare soil on residential property."In res])on$e to comments by Mr. Patrick L. Reapn of the MinnesotaLoad 'Coalition (MIC), the MPCA altered the rale pan to read "anyperson who is performing abatement of lead in bare sol) on residen-tial property and playgrounds." The addition of playgrounds isneeded and reasonable to conform to the requirement* of Minn- Stat.144.878. subd. 2(b), which specifically requires that the rules in-cl ude playgrounds. The MPCA asserted thai, since a property ownerwould not always be (he individual performing abatement, expand-ing the applicability of the rules to anyone performing abatementwas needed and reasonable. The change to "any person" is neededand reasonable,

MPCA also altered proposed rule 4750.0010 by deleting thephras-s' 'or has been ordered to perform" from the persons to whomthis rule applies. The effect of this change, if the rule part is to beread literally, is to limit the applicability of the proposed rules tothose persons who are, in fact, abating the lead problem present ontheir 'xoperty. The MPCA interprets "performing abatement" tomean any person whose property violates the soil lead standard. Thisinterpretation is reasonable given the absence of any specificstatutory enforcement mechanism. The changes made to theproposed rule were discussed at the hearing on this matter and do

* not constitute a substantial change.Proposed Rule 4750.0015 - Definitions.

14. Proposed rule 4730.0015, as amended, is composed of tensubpirts. (he first limiting the scope of the definitions to theproposed rules and the remaining nine defining a term used in thepropcsed rules. One of those nine subparts (defining "person") iscompDscd of entirely new material added to the rule in response tocomments. The definition of "person" merely incorporates thestatutory definition of that term. The only adverse commentsreceived concerning this rule part objected to two definitions, "baresoil" and "playground." The definitions which were not objected10 an: needed and reasonable. The addition of a definition of

x "person" does not constitute a substantial change.Suhpan 4. Bare Soil.15. Minn. Star. 144.878, subd. 2(b) requires the MPCA to set

soil I sad standards for bare soil on playgrounds and residentialproperty. To aid in the understanding and enforcement of a bare soilstandard the MPCA defined "bare soil" The original definitionset a standard of fifty percent ground cover. This definition wasaltertd to art "ouidoor area of one foot or more where soil isvjsib e " Several commentators objected to the proposed definition

_ ______Finance and Commerce Suprcjiic Court Edit jo,

On thtf basis mat SOll lx.'H1tJ "visible" OOUlO iCilO IO iirt>:;r;iry cnl^rcement where vegetation was sparse but present. In addition, t t ioscommentators suggested lhai one square foot was not a rcason;i&tmeasure of area to determine whether ihe bare soil standard ts moat a particular location. The MPCA responded 10 these commentby altering (he definition to delete the visibility standard and alte(he area standard to a continuous area of a square foot or more. Thichange does :x>t resolve the question of whether sparse vegetauowill satisfy the coverage requirement. The MPCA suggested at tfihearing and i.i us final comments thai bare soil in one square inc.increments would fail under the definition of bare soil if enough othem are consecutive. Although this definition appears undulcumbersome, it is needed and reasonable to set a floor under whic:abatement would not be required as being de minimis, further, ih<definition is needed and reasonable to constitute an agency determi nation (hat access to soil is not significant in areas of such limitosize.

Since the purpose behind the proposed rules is to eliminate th-problems caused by contaminated soi I, the MPCA could define bar<soil in terms of the harm to be averted. Using a functional definitio:was proposed by Judy Adams of Lead Free Kids. Inc. (LFK). Shsuggested altering the definition of "bare soil" to take into accourthe root causes of lead toxicity problems, particularly in children(Adams final comments, November 29, 1990). The evidencpresented at the hearing supports the conclusion thai soi I lead enterthe blood stream through a practice called pica (consumption cnonfood itemi such as leaded paint chips and soil) and ingested dus-This suggests that intervention should occur to prevent physiceaccess to soil (thus preventing pica) and to eliminate the paten ti afor spreading lead through dust. under such an approach " bare soi I'could be defined as:

Any outdoor area where: 1) soil is accessible inchildren;2) soil is capable of becoming dust by natural forces.

The suggested definition eliminates the potential for soil lead iviolation of the adopted standard being a contributing factor to leapoisoning, but not failing within the scope of the abatement processThe critical aspects of the analysis are not visibility and size, buaccess to the affected populations. Under this suggested definitiorthe percentage of ground cover is not a factor. Rather, the potentiafor ingestion (cither as soi! or dust) is the determining factor. Thiapproach is elso needed and reasonable in light of the legislativeintent behind requiring these rules and should provide the fl«xtbtlit;needed 10 atote contaminated soil and thereby reduce blood teatlevels in vulnerable populations. Neither the language proposed b;ihe MPCA nor the language suggested in this paragraph constitutea substantial change.

Subpan9. Playground.16. The only comments made regarding proposed subpari '

objected to excluding public parks and public playgrounds from th<definition. Tie MPCA had originatiy proposed excluding ilus.facilities from the definition of playgrounds since no soil !"<problem exiS'S there. The evidence in (he hearing records bears outhis opinion. A study of soil lead in paries throughout Minneapoliand St. Paul indicates that the lead content falls well below the so,lead levels proposed by the MPCA and appears to comply with menrestrictive standards proposed by some commentator):. See Exhibi53 <MLC Exhibit 2, at 3.16 and 17); see also Exhibit 13. Ncvertheless, to exclLde locations that are known to be areas where vutnerable populations congregate and interact is inconsistent with th*express statuary authority granted to rhe MPCA. The deletion othe public p*rk and public playground exemption is needed amreasonable. The change was discussed at the hearing and does noconstitute a sjbstantial change. Th* potential fiscal impact on locapublic bodies is discusses at Finding 10. above, and the procedureeffect created by that impact does not constitute a defect in th.proposed rules.Proposed Ru>e 4750.0020 - Bare Soil Standard.

17. The cornerstone of the proposed rule is the selection ofstandard determining what level of lead in soil is unacceptableProposed ruls 4750.0020 MI truw standard at 3/100 of one percen

3 1 13 S 6 4 0 " 1 - C.1 J

Finance and Commerce Supreme Court Edition ____

Oy wcigfii, Tl-c description of this standard used in the hearing was300 parts per million (ppm). Lead Industries Association, Inc. andMr. James W. Sorbcl, Director of Government Relations for (heMinnesota Mulii Housing Association, objected to the 300 ppmiian<Jard as being too restrictive. The commenwors cited the levelsjlready in pUcc through the interim standard in Minnesota (500ppm) and a Federal Environmental Protection Agency (EP A) direc-tive (500 ppm in soil) as evidence (hat the 300 ppm standard is, infact, too low. Mr. Sorbel proposed that the interim standard of 500ppm should be: retained. The Lead Industries Association suggested<l>a(, due to the varied circumstances of lead contamination, the onlyreasonable approach is to proceed on a casc-by-case basis and setno general standard as an upper limit of lead concentrations.

Other commentators strongly urged that the standard proposed bythe MPCA is 'OO high to provide protection for vulnerable popula-tions. Mr. Patrick L. Reagan, a consultant appearing on behalf ofthe MLC, proposed a 100 ppm standard. MLC maintains that thisstandard is adequate to protect even the most vulnerable membersof the affect eel population. In addition, MLC urged deletion of thelanguage which restricted the application of the proposed rule tothose properties for which a board of health assessment is required.The MPCA agreed with the suggested deletion and made thatchange in the proposed rule. The MPCA did not agree with the 100ppm standard proposed by MIX. Ms. Adams thought that the 300ppm standard #as suitable as a general abatement standard, but thata 100 ppm standard should be imposed on residences where leadpoisoning occITS. (Adams November 27,1990, comments at 2 and5). Both the issues of a lead standard and what enforcement shouldbe required will be discussed in detail in (he following Findings.

Deletion of Board of Health Assessment Requirement.18. As or.ginally proposed, the soil lead standard would only

apply to those properties for which the board of health wss requiredto perform an assessment under Minn. St»t. 144.874, subd. 1, Ineffect, only when a child or pregnant woman shows an elevttedblood lead (BFb) level would assessment be required. For children.elevated BPb s defined as 25 micrograms of lead per deciliter ofwhole blood (Kreinafter styled as 25 ug/dl). Minn. Slat. 144.871,subd. 6, Assessment is required if the BPb of a pregnant womenexceeds 10 ug/dl. Minn. Slat. 144.874, subd. 1(2). The Commis-sioner of the MDQH is authorized to determine if a lower BPb isnecessary to protect public health. Minn. Stat. 144.871, subd. 6. TheMPCA is not given authority to determine what is an elevated BPb.

L£K and MIX objected to the limitation of applying the standardto only those properties for which board of health involvement isrequired. They proposed instead that the standard be promulgatedas an upper lirrit for all residential properties, regardless of whetherelevated BPb is found in any of the residents (here. There areexcellent reasons for promulgating the standard set by theseproposed rules as a general standard independent of BPb. With thepotential for contamination by dust arising from soil, the universalreduction of lead in soil would result in a lowering of the baselinelead ingested through eating contaminated food, breathing con-taminated air, or breathing in contaminated dust. MLC and LFKadvocate a regional approach 10 the problem of lead contaminationwhich would, j n effect, reduce the soil lead concentration throughout residential areas of Minneapolis and St. Paul to within theadopted lead standard, regardless of whether any BPb problem isidentified. Completely divorcing the standard from persons Iden-tified with high BPb is a necessary first step in thai process.

There are also excellent reasons for limiting the application of thesoil lead stancard to identified BPb problems. Ernest Swenson,Executive Director ot People of Phillips (a Minneapolis neighbor*hood group), ijpposed the adoption of soil lead standards. Thisopposition comes despite representing an area among the highest insoil lead concentrations in Minnesota, a population suffering froma very high infant mortality rate, and a large number of persons withelevated BPb. The basis for People of Phillips' opposition is that nopresent program exists to assist homeowners, property owners, orinterested groups in paying for the costs of abatement. People ofPhillips is concerned that the portion of dwellings which are rentalproperties (85%) will not be abated, but abandoned by their owners.

January

I The remaining l5% of dwellings ((hose ih.ii ;narc o^ned by persons who lack the disposable incomo 10 pav forabatement. To require these persons to abate (he soil lead on Wirproperty will impose hardships on ihese persons without rhe ex is t -ence of an identified elevated SPb. The impact of such a r«gulaior>course could devastate an already troubled neighborhood throughabandonment of buildings, a loss of property tax base, and themigration of concerned citizens to Other neighborhoods. Thesesentiments were also expressed by the Minnesota Association ofRealtors through Ms. Jill Stmmon, its Director of GovernmentalAffairs,

The MPCA presently has no pians to enforce a universal siandarafor soil lead in the absence of elevated BPb detected by local boardsof health. The MPCA has no funds available to mspect. issuecitations. Of enforce its proposed lead standard. The Commissionerof MPCA is required to adopt "standards and abatement proce-dures," bui not enforcement methods. Minn. Stat. 144.873,

The overall statutory approach to lead toxicity is clearly tied to asystem focusing on blood testsof vulnerable populations and requir-ing abatement of individual locations rather than entire neighbor-hoods. However, the statutory scheme for reducing environmentallead does not author ze local boards of health to issue abatementorders for violations of the soil lead standard. Minn. Stat. 144.874,subd. 3. While many have assumed that enforcement of the soi I leadstandard by local boards of health is implied by the statute, ihtexpress language of the statute belies that assumption. The originalwording of the proposed rules suggested that local boards of healthwould be issuing abatement orders for lead in soil. Retaining thailanguage could create a defect in the proposed rules, since th« resultmay be a subdelegation of authority in contravemionof the statutorysystem. Deleting the connection between the soil lead standard andcitations issued by local boards of health is needed and reasonableto avoid this potential problem. The change does not affect theultimate standard adopted and therefore does not constitute a suh-stantial change.

Soil Lead Standard,19. The MPCA standard for prohibited amounts of lead in bare

soil is proposed at 300 ppm or more. Whenever a health basedstandard is imposed through rulemaking, the agency mustdemonstrate a "reasoned determination" supporting the standardchosen for the rule. Manufactured Housing Association v. Petterscn.347 N.W.2d 238, 246 (Minn. 1984)(emphasis in original). TheMPCA's stated basis for the standard is two-fold. First, the MPCAhas made a determination as to what adverse health effects occur aivarying levels of BPb. Second, the MPCA applied a biokineticanalysis to determine what level of soil lead would provide anappropriate degree of protection for the public health. SONAR, at16. The biokinetic analysis was prepared by (he Society for Environ-ment. Geology, and Health (SECH). An algebraic representation otthe analysis appears as follows:

f/T/flfii - R]S» d .1000

The variables used in the formula are: S (soil lead standard); T(targeiblood lead level); O (standard deviation); n (number correspondingto the percentage of the population to be protected); B (the back-ground lead level in biood); and d (the rate at which lead is metabo-lized, assuming a consumption of soil contaminated to a level of1000 ppm).

The variables adopted by MPCA are as follows:

S- 2 .1000Carry ing out the calculation, S (the soil lead standard) would be 290ppm. The founding of that number to 300 ppm is not statistical;;.significant. By MPCA estimate, exposure to 300 ppm soil wouldonlv raise 8Pb by 0.6 ug/dl. SONAR, at 15.

To arrive at this standard, the MPCA made some assumptions (asdid SEGH) about the laiure of the soil lead problem. The first, andperhaps most critical assumption is that soil lead is absorbed in thebloodstream it a raiecf 2 ug/dl for every 1000 ppm of lead ingestedThat figure is used in the SEGH study and is supported by a stud>

FEB 12. BHPP E N G I N E E R I N G

January 18, 19«Jt Finance and Commerce. Sentjued Modelling the Blood L«*d - Soil U;id Relationship, (Mar-cus and Cohen). Exhibit 8. That study examined many other re-searchers analyses and concluded "[t jhe blood lead slope estimateinmost s.udies is about 2 ug/dL per 1.000 u&/g soil lead, but maybe as large as 7 ug/dL per 1,000 uft/g." Id. at 172.

The difficulty in determining a "safe" level of soil lead is thatnol only :h* concentration of lead in soil, but the amount of lead-contaminated soil consumed conlributes to the BPb of vulnerablepopulations. This interrelation of factors is shown by a model onpage 12C of Exhibit 3 That exhibit, a scientific paper by RufusChancy, Howard Mielke, and Susan Sterretudid not adopt a specificrate of metabotization, but approached the BPb problem from a"worst-case, most vulnerable population" standpoint and advo-cated a soil lead standard of 150 ppm.

The MPCA did. not take a most vulnerable population approach.The value chosen for the percentage of population protected is thenumber which corresponds to 99% of the affected population. MLCadvocated that the MPCA is required by Minn. Stat. 144.878, subd.2(b) to piotcct the most vulnerable populations through the soil leadstandard The choice of how much of the affected population to.protect v/ill always be an issue where there is no consensus on a"safe" level of contamination. The level selected by the MPCAprotects all but 1% of the persons affected by elevated BPb. Themethods of ingest ion and the degree of control available to isolatethe additional sources of lead (such as paint chips and lead indrinking water) suggest that the level selected will retult in anadequate, degree of protection for the entire community. As men-tioned atove, the MPCA calculates that ingest ion of the "average''amount of soil, with contamination not exceeding 300 ppm, resultsin an increaseof 0.6 ug/dl. Combining that amount with (he averagebackgroi,ind BPb of 4.0 ug/dl leaves the tout level well below thetarget (or threshold BPb) of 10 ug/dl. The MPCA also examined theeffect of soil lead if the 7 ug/dl factor is used and concluded that theproposed standard would adequately protect vulnerable persons.SONAF^ at 15.

Anothier factor needed to calculate the soil lead standard is thetarget B?b. This level is the point under which one is seeking to holdthe majority of blood lead levels. For the proposed standard, theMPCA elected 10 ug/dl. This level was criticised by the MLC asnot taking into account the advene health effect <a reduction inheanngythat occurs wjth.as little as 6 ug/dl. Rather,,tbe MPCA basedits choice of a target level on the inhibition of amino acid develop-ment nocessary for the natural synthesis of heme (an importantcomponent in the bloodstream). This damage occurs at 10 ug/dl ofBPb. E>hibit 55 (MLC Exhibit 10, at 457); see also Exhibit 60. Thefederal Environmental Protection Agency has determined intel-ligencequotient deficits occur at that level. Exhibit 53 (MLC Exhibit1, at II- 7). At 10 ug/dl of BPb, local boards of health must conductresidence assessments of pregnant women. Minn. Stat. 144.874,subd. \. Local boards of health must provide a residential leadassessment guide (to be prepared by MDOH) to parents if any oftheir children are identified as having BPb of 10 ug/dl or more,Minn, Stat. 144.874, subd 2. Abatement on lead sources must beorderec when a pregnant woman hat a BPb of 10 ug/dl or higher.Mtnn. Stat. 144.874, subd. 3. The Legislature has selected 10 ug/dlas the lowest level requiring some sort of intervention. That level isreferred to as the concensus figure for risk to children. Exhibit S3(MLC Exhibit 1, at 11-23); see also Exhibit 57, at 137. The recorddemoattrates that BPb has a clear and adverse health effect at 10ug/dl. "flie MPCA's adoption of that level In setting a threshold forprotecting 99% of the population is both needed and reasonable.

MLC: objected to the use of 4.0 ug/dl as the numerical equivalentof the !«ckground lead level in blood. At the second hearing. Mr.Reagan proposed that 4.5 ug/dl be used as the background BPb. Heasserted that the 4.5 ug/dl figure U a more accurate description oflocal BPb than the 4.0 ug/dl figure used by SEGH (and adopted bythe MPCA). Mr. Reagan based his assertion on the SEGH figure(4.0 uj/dl) being a national average which does not take into accountspecific factors. The most prominent factor being exponire to theurban environment. Calculating the soil lead standard from theSEGH formula and only altering the background BPb to 4.5 results

in ;ri« following calculation:

S* 2 . 10(W)Based on the, altered background level, S would equal 40 ppm ••.:lead in soil.' At that soil lead level, the increase of BPb from m<' ' average" consumption of contaminated soil would be 0.08 up/0!Adding that figure to the background level would not result m u^-appreciable increase of BPb. The calculation of ihc standard winchwould result from increasing the background lead variable is in-cluded in this Report to show that altering that variable HUN ,<dramatic impact on the standard. MLC has not introduced any d.iuito demonstrate tnat the background lead level of 4.5 ug/dl is mon-valid than the SEGH figure of 4.0 ug/dl which has been adopted SKihe MPCA. The use of 4.0 ug/dl to arrive at the soil lead standard i>needed and reasonable.

The last variable in the SEOH figure is the denominator reflectingthe rate at which soil lead consumed is absorbed into thebloodstream. The MPCA selected a rate of 2 ug/di for ev«ry gwinof soil containing 1000 ppm of lead. MLC advocated usinga 7 ug/dlfigure as the more accurate rate of absorption. Based on a study ofBPb absorption, both rates are valid for the purposes of statisticalmodelling. See Exhibits, at 172. The actual rateof absorption vark-xby the age of ttu person; the existing contents of the stomach; tliecalcium, iron, and phosphorus levels of the person consuming melead; and the size of the lead panicles consumed. Exhibit 11. at 2-3.Exhibit 5, and Exhibit 3. The MPCA has chosen the lowest absorp-uon rate in setting the soil lead standard. The soil lead standardselected, however, will not significantly raise BPb concentrationsif the 7 ug/dl rate is used. See SONAR, at 15. Selecting (he I owes;level of absorption provides a baseline figure and is the result ut .<reasoned determination.

The absorption debate is indicative of the fundamental problemfacing these rules, Lead contamination does not arise from onesource, nor does it create a consistent harm to vulnerable popula-tions. The effect of lead contamination (particularly in soil andpamt) can be alleviated by reducing or eliminating pica, whether ornot the contamination is eliminated. Thus, young children are themost likely persons to display lead toxicity from residential sources.Since that behavior is difficult to control, many persons choose tomove from lead contaminated premises as the easiest and leastexpensive method of "removing" the lead problem. Abating thelead problem requires isolating bioavailabk lead from consumptionThe underlying assumption of the MPCA Is that when properabatement is performed, all sources will be reduced, if no;eliminated. Except for the continuing contribution thai soil leadmakes to lead in household dust, the other common sources of lead(paint chips, household dust, and drinking water) can be eliminatedSome lead will remain in soil, no matter what standard is applied.Since it is impractical (and therefore unreasonable) to render soil"lead-free," the MPCA is left with the task of determining wrta:level it acceptable. The MPCA cannot reasonably protect the in-dividual who engages in geophasta (eating dirt) to a large extentsince any lead level higher than zero can result in an increase in BPbbeyond 10 ug/dl. Similarly, the person who ingests paint chips willbe consuming much higher concentrations of lead than the personwho consumes an equal weight of soil contaminated at the 300 ppmlevel. Taking into consideration the factors and circumstancesbefore it, the MPCA has fashioned a standard mat is reasonable,responsible* and will have the effect of reducing exposure to harmfulsoil letd levels.

MLC maintains that the MPCA failed to account for other leadsources in Its blokinettc model* and that the contributions to BPbfrom those other sources require that the standard be set at 100 ppmto ensure that any error is on the tide of protecting the public. A*discussed in the foregoing paragraph, those other sources will be theobject of MDOH nilea. Both the MPCA and the interested partieshave assumed that these other sources will be reduced or el im matedas pan of the overall abatement procew- Further, the MPCA hasshown that the contribution to BPb by ingewionof soil contaminatedat less than the 300 ppm standard will be minimal with respect tothe target BPb of 10 ug/dl. The agency has made a reasoned

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vio;crmina ion of what the sot I load standard should be wilhin themeaning of Manufactured Housing. The MPCA has shown that the300 ppm :;tandard regarding soil lead is needed and reasonable.Deleting tie express reference to local boards of health does norconstitute i substantial change.Proposed ttule 4750.0030 • Abatement Methods for Bare Soil.

20. The MPCA is required to adopt abatement methods by virtueof Minn. $ .at. 144.878, subd. 2<b). In accordance with that mandate,the MPCA has proposed rule part 4750.0030, This proposed rulepart was originally divided into four subparts. After extensivecomments at the hearings, the proposed rule part was extensivelyredrafted, '"he altered rule part has seven subparts. Each subpart willhe discussod individually.

Subpan 1 •Applicability.21. Sul>part 1 sets forth the persons to whom the proposed rule

pan applies. As with the standard itself, the MPCA has deleted anyrelation to ihe actions of local boards of health. The reasons for suchA deletion are presented in Finding 18, above. In addition, the agencyhas altered :hesubpart to replace "property owner" with "person."The result of this change is to require anyone, including a volunteer,to comply *ith the requirements regarding the manner, type, andpriorities o:; an abatement project, rather than merely the owner ofthe property. Subpart I is needed and reasonable to establish thescope oftte abatement rules. The chafes do not constitute substan-tial changes,

Subpan t. - Abatement Methods.22- Subpart 2 lists the methods which may be used to abate soil

in violation of the 300 ppm standard. With the exception of soilcontaining visible paint chips, the MPCA allows a choice of cover-ing or removing the contaminated soil. This change was supportedby Ms. Adams, who maintained that the problem of BPb would beeliminated by merely covering the soil, whereas attempting toremove the soil in every case would generate higher amounts ofambient lea.] and cause higher BPb levels tnan merely covering thebare soil. Mr. Reagan took the position that soil contaminated withlead to the cegree of 1000 ppm was not suitable for covering as anabatement method, because the covering option was considered"unreliable" at that level. MLC Analysis of tbe Proposed Rule -Supplement 1T at 14. That position is supported by the Agency forToxic Substinces and Disease Registry, which concluded:

(1) Excavation of lead-contaminated soil and on-«itedecontamination is too costly and operationally un-wieldy,(2) The effectiveness of soil le*d abatement stepssucn us capping, rototilling, excavation, and on-sitedisposal are uncertain for soil lead levels of 1,000 ppmor higher. On the other hand, they may work for soilwith 1'iad levels below 1,000 ppm.(3) Excavation of lend contaminated soil with off-site disposal, augmented with Pb-B-teyel testing forchildren in the affected residences, seem best forprotection; cost and off-site disposal impacts, however,may be a problem.

Agency for Toxic Substance* and Disease Registry, U-S. Depart-ment of Health and Human Services, Public Health Service, TheNature and Extent of Lead Poisionlng in Children in the UnitedStates: A Report to Congress (Exhibit 14). No studies in therulemalcing -ecord support the conclusion that capping is not anappropriate option for lead in soil in excess of 1000 ppm. Cappingwas used as an abatement method for soil in excess of 1000 ppmlead in a project in Baltimore. Maryland (so long as the soil did notexceed the hazardous waste standard for lead leachate). Exhibit 16.Allowing a choice for persons performing abatement is needed andreasonable to limit the costs of abatement and reduce tbe likelihoodof creating ijreater difficulties through an inefficient abatementmethod. Additionally, there are great incentives to dispose of leadon-site, rather than dispose of the contaminated soil through thehousehold w istc stream. Disposing of waste through the householdwaste strearr (at least In Minneapolis) may,result in an eventualreturn of the. lead through incineration. S<* Finding 30, below,Subpan 2 is needed and reasonable, as altered. The changes do not

constitute a substantial change.Subpart 3 - Soil Cover.Iiem A - Living Ground Cover.23. LFK submitted extensive comments regarding the cost artd

benefits of ihe various methods presently in use to cover leadcontaminated sot:. The MPCA adopted many of this group's sug-gestions in proposed subpart 3. In other areas, the MPCA variedfrom this group's suggestions. Everyone agreed that one appropriatemethod of abatement was to sod ihe bare soil. The MPCA requiredin subpart XA) thai the soil be tilled and raked prior to laying thesod. LFK objected to that practice, claiming that the lead con-taminated dust which could result would negate the benefits ofcovering (he contaminated soil. The MPCA responded that rakingand tilling was a necessary element to ensuring that the live covertake hold and thrive, rather than wither. In response to the issue ofdust, the MPCA suggested that (he bare soil be moistened to preventdust in the tilling and raking process. The MPCA is correct in itsassertion that raking and tilling is needed to ensure that sod willsurvive and provide the needed cover. Proposed subpart 3(A) isneeded and reasonable and does not constitute a substantial changrThe MPCA may consider adding language such as "in a manner ^,as to prevent the production of dust" to the item. This addiiiorrwould not substantially change the rule and would answer Adams*objection.

Item B • Impervious Cover.24. The MPCA offers ihe person performing abatement the

opportunity to UK concrete, asphalt, or other similar material tocover leaded soil in proposed subpart 3(B). No one objected to theuse of those materials, but the requirement that the ground becompacted received the same objection as raking and tilling in itemA, that is dust will be created which will spread contaminant. Ifthese materials are to be used for cover, however, the ground mustbe prepared. Otherwise, the covering material will provide incom-plete protection through cracking or erosion. No com mem a tor sug-gested that the dust created through this process would be as harmfulas continued contact with the contaminated bare soil. The MPCAhas shown (hat compacting the ground prior to laying concrete orasphalt is needed and reasonable. The new language is not a sub-stantial change.

Item C - Other Cover Material.25. The testimony and post-hearing exhibit of LFK indica'

that the least costly alternative to abate bare soil is to cover i. .__..-portion in violation of the soil lead standard with sand and woodchips. Subpart 3(Q incorporates that experience into the optionswhich may be used to abate soil lead. The proposed item does notrequire any preparation to the bare soil prior to application of thepervious matter which covers the lead hazard. LFK suggested thatsome preparation of the soil, such as sloping or trenching, might beneeded to provide proper drainage. The proposed item does notprohibit such preparation. The MPCA is relying upon personsperforming abatement to act in a manner to minimize cost whenconducting abatement. Thus, the MPCA is not specifying exactlyhow to carry out the abatement, only requiring that the abatementbe successful. This approach, and item C, is needed and reasonable.The addition of iternCincorporatesa proven abatement method intothe proposed rules and does not constitute a substantial change

Subpart 4 - Soil Removal.26. The other alternative 10 covering soil is to remove it.

Proposed subpart 4 makes that alternative mandatory when painichips are visible in the soil. No one objected 10 requiring removalof soil when it contains visible paint chips. Several commentatorssuggested that removal include burial on site (when paint chips arenot visible in the soil). The commentators based their suggestion onthe nature of soil lead contamination, thai only the top few inchesof the soil contain significant lead concentration, The deeper soil iswell under the standard set in these rules for ppm of lead in soil. TheMPCA incorporated this suggested solution in the proposed sub-pan, with the proviso that the Commissioner of the MPCA maydetermine that on-site burial wilt cause contamination of groundwater or constitute a hazard to the environment and prohibit on-siteburial. The proposed subpart requires thai, if that contamination or

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January IS, FinancXand Commerces up re nit Court Edition

I'ui.-.i.'J i % ik'icrr.nnvM. ;;ic ^'U M he r«nitvcd niyx: Ix; disposed of iniiceordaice wi ih propose rule 4750.00S5. Subpart 4 is needed andreasonable to protect ihc residential environment and promote effi-cient disposal of contaminated soil.

Subpan 5 - Abatement Implementation.27. In her testimony «t the hearing, Ms. Judy Adams of LFK

recounted the difficulties of performing abatements. One of the mostdifficult problems was to perform the abatement white isolating thecontaminated soil from children, replacement soil, and uftcon-taminai<5d areas. The MPCA has incorporated requirements thatthese three areas be addressed. The MPCA has not mandated par-ticular nethods to accomplish these goals, however. This approachis in keeping with (he spirit of these rules. The results are em-phasized; how the person performing abatement achieves thoseresults i;> left open. The MPCA did add a specification that steps andwalkways must be hosed off before replacing soil or sod each day.This alteration is intended to restrict (he transmission of dust (fromsoil or nud) into the residence and reduce the potential for placingcontami nated sol l on top of replacement soil or tod. The MPCA alsoadded J'*m 0 to the proposed subpart which requires the personperforming abatement to keep soil moist during installation of soilcover. The intent of this new language is to reduce dust fromcontaminated soil during abatement. Subpart 5 is needed andreasona jle to ensure thai abatements are earned out with a minimumof adverse impact without overly limiting (he methods used bypersons performing abatements. The changes were suggested bycommentators or made to conform with other changes in theproposed rules and do not constitute substantial changes.

Subpart 6 - Abatement Priority.28. This proposed subpart is left unchanged from the originally

proposed rules. The MPCA intends that where any other leadabatement occurs, the abatement of soil take place last. The rationalefor this approach is that other abatements will deposit dust or paintchips ir (he soil and no one should conduct soil abatement twice.LFK ot'jected to (he priority in subpart 6, on the ground that leadcontaminated soil will be introduced into the residence when per-sons enter the residence during the soil abatement process. How*ever, ths MPCA has placed safeguards to prevent that introductionof contiminants in proposed subpart 5. Further, the methods forabatcm snt of household dust are no( as drastic (or expensive) asabatement of contaminated soil. The ordering in the proposedsubpart is needed and reasonable.

Subpan 7 - Abatement Area.29. Many commentators debated whether abatement should

encom|>ass the entire bare soil surface regardless of whether all thearea violated the lead standard or whether only that segment whichexceeded the 300 ppm standard must be removed or covered. Mr.Reagar suggested that, since the soil lead level of all urban areas ishigher than the background lead level in the environment, the totalexposure to lead would be reduced by abatement Of all bare soilareas on a particular parcel of property if any one part violated ihesoil lend standard. Further, the possibility exists that soil levelswould vary from siie to site within the same property. In such aninstance, samples might noi be taken at every bare soil Site and(hereby fail to detect some sods in excess of the standard. On theother hand, relatively "clean" soil may show anomalous leadconcer; (rations through source-specific contamination. Exhibit S3(MLC Exhibit 4, at 222-223). Evidence in the record indicates thatthe majority of areas in excess of the MPCA standard for manyresidences are the soils around the foundations if homes. Otherureas, iuch as the mid-yards, do not exceed the 300 ppm soil leadxtnnda^d. Some commentators indicated that the likelihood of abate-ment increased with the decrease in cost of the procedure. TheMPCA opted for requiring abatement only for those areas whichviolate the soil lend standard. The proposed subpart is needed andreasonable and comports with the express standard set by theserules. The addition of subpart 7 was In response to commentsreceived through ihe hearing process and does not constitute asubsiainul change.Propoiad Rule 4730.0035 - Disposal of Waste Materials fromAbatement Projects.

30. Proposed rule 4T50.(X)35 a insists of three subparu, c;iv"dealing with a material l ikely to be generated through an abatementproject. This proposed rule part was extensively re-written mresponse to comments from persons at the hearing. Subpam 1 and3 govern non-soil wastes and essentially state that those wastes wi l lbe disposed o: in accordance with past practice (for demolitionwaste) or applicable MPCA requirements (for all other waste). Mr.Leslie Davis of Earth Protector, Inc. supported these two proposedsubparts as being the most effective methods presently available (fordisposing of construction waste) and being needed to limit thespread of other contaminants (for other waste). However, Mr. Da visobjected to permitting disposal of leaded soil through the householdwaste stream. His objections centered on the probable end treatmentof such waste. In Minneapolis, the waste will either be incineratedor placed in a landfill. Mr. Davis argued thai the lead in soil, ifincinerated, will become an airborne contaminant. The MPCAacknowledged that the effects of Incinerating lead contaminated soilare not presently known. The soil disposal provision is based on theMPCA's interpretation of present state law, which allows ahotneowner (o remove waste through (he household disposal sys-tem. If the lead concentration (or presence of other waste) requiresthat the soil be classified as « hazardous waste, it must be treatedaccordingly and not disposed of through the household wastestream. Clearly, the MPCA has taken into consideration the pos-sibility of incincration merely alteringtheformof the lead problem-The next step is to determine what levels of lead may be incineratedwith undue adverse environmental impact. Until that 1s done, theproposed disposal provisions are legally authorized; needed, andreasonable. The change was fully discussed in the hearing and thecomments and is not a substantial change.Proposed Rule 4750.0040 - Abatement Contractor Duties.

31. This proposed rule part merely requires an abatement con-tractor to follow the same rules that any person conducting abate-ment would Otherwise have to follow. The MPCA changed" property owner*' to " person" to conform the language of the ruleto other chaoges. The MPCA should also delete "who is require toundertake'* and replace it with "performing" so as to conform thelanguage of the proposed rule part to other changes in the rule.Failure to do so, however, does not constitute a defect in theproposed rules. No commentators objected to this provison. Nowof the changes is a substantial change. The proposed rule pan isneeded and reasonable to prevent avoidance of the required abatemeet procedures.Proposed Rule 4750.0045 - Local Enforcement.

32. As discussed in Finding 18, above, the action which initiate:the enforcement process of these rules was the subject of diversecomments. The MPCA has added rule pan 4750.0045 to theproposed rules to respond to that debate. The MPCA's position i:that local boards of health are not authorized by Minn.Stat. 144.874,subd. 310 issue abatement orders regarding soil lead. However, theMPCA recognize* that other enforcement author try may be avail-able to local bodies of government. The proposed rule pan makesdear that the lack of an enforcement program in the MPCA rules isnot meant to preclude enforcement of the soil lead standard by loca.units of government. Of course, any action undertaken by a locaiunit of government must be within that entity's authority, but tha;is not a matter for this rulemaking proceeding. The proposed rukpart is oeedcd and reasonable. Since it only clarifies the MTCA';intent regarding its adopted standard and does not affect any substantive rights or responsibilities of any part of the regulated publicihe addition of this language does not constitute a substantiichange.Proposed Rule 4750.0050 - Variance.

33. Minn. Stat. 144.87ft, subd. 3 requires the Commissioner othe MPCA 10 provide a variance procedure to allow the use oinnovative procedures to conduct lead abatement. The MPC^proposed this rule part to comply with that statutory requirement. Irthis rule pan, the MPCA references all applications for variances t<the general variance procedure used by the agency. This procedurecodified at Minn. Rule 7000.0700 require* a written applicationCommissioner review of the application, public notice,« mailing o

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Finance and Commerce Supreme Court Edition January 18,

the public notuc. a circulation of the public notice, an agencydecision and a notification of the decision, logethcr with otherprovisions. No one objected to the variance procedure. Theproposed rule pan is needed and reasonable 10 permit varianceapplications and solicit public comment on each proposed variance.

In spite of the foregoing finding of need and reasonabtenes:.however, a review of the procedural steps and depth of publicinvolvement suggests that the process may become a burden on theagency when the relative size and scope of each variance request isonly a single residence, a pan mem building, or playground. TheMPCA may wish to consider an expedited process which reduces

scope o( public involvement to the level of each affectedneighborhood and a particular mailing list of persons interested inlead contamination issues, rather than the entire mailing list of theMPCA and the -aitire county where the variance would occur. SeeMinn. Rule 7000.0700. subds. 6 and 7. A change of that nature tothe variance process at this point in the rulemaking proceedingcannot be made since it would constitute a substantial change. Thenotice rights of persons interested in variances (both pro and con)would necewar ly be affected by any change in (he scope of thevariance procedure. Any change in the variance procedure must bedone through tb» full rulemaking process to provide adequate noticeto the public of my potential change of scope for this process.

The MPCA made several changes in proposed rule part4750.0050 to cc-nform the language of the rule to other changes inother rule parti- Those changes do not constitute a substantialchange.

Based upon the foregoing Findings of Fact, the AdministrativeLaw Judge makes the following;

CONCLUSIONS1. The Mlnresota Pollutions Control Agency (MPCA) gave

proper notice ot this rulemaking hearing.2. The MPCA has substantially fulfilled the procedural require-

ments of Minn. Scat. 14.14, subds. 1. la and 14.14, subd. 2, and allother procedural requirements of law or rule so as to a HOW it to adoptthe proposed rules.

3. The MPCA has demonstrated its statutory authority to adoptthe proposed ri les, and has fulfilled all other substantive require-ments of law or rule within (he meaning of Minn. Stat. 14.05, subd,1. 14.15, subd. 5 and 14.50 (i) and (ii).

4 The MPCA has demonstrated the need for and reasonablenessof the proposed rules by an affirmative presentation of facts in therecord within ttte meaning of Minn. Stat. 14.14, subd. 2 and 14.50(iit).

5. The additions and amendments to the proposed rules whichwere suggested by the MPCA after pub) ication of the proposed rulesin the State Register do not result in rules which are substantiallydifferent from the proposed rules as published in the State Registerwithin the mealing of Minn. Stat. 14.15, subd. 3. and Minn. Rule1400,1000, subp. 1 and 1400.1100

6. Any Findings which might properly be termed Conclusionsand any Conclusions which might properly be termed Findings arehereby adopted as such,

7. A finding or conclusion of need and reasonableness in regardto any particular rule subsection does not preclude and should notdiscourage the MPCA from further modification of the proposedrules based upon an examination of the public comments, providedthat no substantial change Is made from the proposed rules asOriginally published, and provided that the rule finally adopted isbased urxxi facts appearing in this rule hearing record.

Based upon :he foregoing Conclusions, the Administrate LawJudge makes tr« following:

RECOMMENDATIONIT IS liERBOY RECOMMENDED (hat the proposed rules be

adopted consis :cnt with the Findings and Conclusions made above.Dated this 28nday of December, 1990.

s/ALLENE-GILESAl.LEN E. GILESAdminiMrative l-aw Judge

Reported: Tape HecofCcd: No Transcript 1'rcpafod

1-1003-5129-2

In the Matter of the Applicationof Farmers and Merchants Bank of FINDINGS OF FACT,Balaton, Minnesota (0 Establish CONCLUSIONS ANDa Detached Facility RECOMMENDATIONin North Mankato. Minnesota.

The above-entitled matter came on foe hearing before Administra-tive Law Judge George A. Beck, on December 18.1990at the NorthMankato Municipal Building, in the City of North Mankaio, Min-nesota.

William T. O'Connor, Esq., of the firm of Berens, Rodenberg &.O1 Connor, 519 Center Street, New Ufm. Minnesota 56073, ap-peared represent ing the Applicant, the Farmers and Merchants StateBank of Balaton. Keith Boleen, President, Valley National Bank.245 Belgrade Avenue North, Mankato, Minnesota 56001, appearedon behalf of the Objector, the Valley National Bank of NorthManknto. The record closed on the date of the hearing. December18,1990.

This Report is a recommendation, not a final decision, the Com-missioner of Commerce will make the final decision after a reviewof the record which may adopt, reject or modi f y (he Fin dings of Fact.Conclusions, and Recommendations contained in this Report. Pur-suant to Minn. Stat. 14.61, the final decision of the Commissionershall not be made until this Report has been made available co ireparties to the proceeding for at least ten days. An opportunity mustbe afforded to each party adversely affected by this Report to fileexceptions and present argument to the Commissioner Partiesshould contact Thomas R Borm&n, Commissioner, MinnesotaDepartment of Commerce, 133 East Seventh Street, St. Paul. Min-nesota 55101, to ascertain the procedure for filing exceptions «presenting argument.

STATEMENT OF ISSUESThe issues in this matter are: (1) Whether the Applicant Bank

meets current industry standards of capital adequacy, managementquality, and asset condition; (2) Whether the establishment of (heproposed detached facility will improve the quality or increase theavailability of banking services in the community to be served; and(3) Whether the establ ishment of the proposed detached facility w 111have art undue adverse effect upon the solvency of existing financialinstitutions in the community to be served.

Based upon all of the proceedings herein, ihe Administrative LawJudge makes me following:

FINDINGS OF FACT1. On August 29,1990, the Farmers and Merchants State Bank

of Balaton submitted an application to establish a detached facilityin the City of North Mankaro, 500 feei west of the intersection ofCommerce Street and Lorray Drive in North Mankato, MinnesotaThe application was formally filed on October 5,1990. (Ex. 15).

2. On October 15.1990 a Ndice of the Application was pub-lished in the Mankato Free Press. On October 18,1990 a Notice ofthe Application was published in the Balaton-Russell Press-Tribune-Record. Copies of the notice of the application were alsosent by certified mail to the banks located within a three-mile radiusof the proposed facility. (Ex. 21).

3. By a letter dated October 30, 1990 and received by theDepartment of Commerce on October 31,1990 ihe Valley NationalBank of North Mankaio objected to the application and requested »hearing. (Ex. Q.

4. On November 9. 1990 the Commissioner of Commerceissued a Notice of and Order for Hearing directing that a contested

hearing be held pursuant to ihe Admirmtrtuivc preyed ure AC:

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STATE OF MINNESOTAMINNESOTA POLLUTION CONTROL AGENCY

In the Matter of tht ProposedRult.s Governing Standards andAbatement Methods for Lead inBare Soil on Playgrounds andResidential Property, Minn.Rule:; Pts. 4750.0010 through4750.0050.

SUPPLEMENT TO THE STATEMENTOP NEED AND REASONABLENESSDATED NOVEMBER 5, 1990

Sincti these rules vere proposed for adoption and the Notice of Bearing nailedand published in the State Register, the Minnesota Pollution Control Agencystafi! has continued to reviev the available information and to consider thecomments and opinions of members of the public vho have been interested and haveparticipated in the development of these rules.

The staff is of the viev that a number of changes in the rules as proposed arewarranted. The changes in the rules that the staff is recommending at this timeare ahovn in Exhibit 50. In this document the staff explains the reasoningbehind the recommended changes and supplements some of the discussion in theStatement of Need and Reasonableness.

It is clear from the language of Minn. Lavs 1990, Ch. 533, thatthe Agency adopts standards and abatement methods for lead inbare soil on playgrounds and residential property. Inaddition, the Agency is required to adopt a variance procedureto allov for use of innovative abatement methods*

The Minnesota Legislature has been sufficiently definite onvhat the Agency is required to do. It simply states that theAgency is to adopt bare soil standard and abatement methods ina manner that protects public health and environment. Thestatute does not define vhat constitutes "in a manner toprotect public health and the environment11 and thus leave itentirely to the expertise of the Agency.

Accordingly, the Agency looks at the statute to see vhether theLegislature has declared a policy vith respect to leadassessment and ordering abatement- The present enactment doesnot require the Agency to assess and order lead abatement. TheLegislature left the matter to the Minnesota Department ofHealth, Minn. Lavs 1990, Sec. 3, tubd . 1.

Upon setting bare soil standard and abatement methods, theburden of enforcement shifts to the board of health vho mustconduct home assessments and order abatement to property ovnarto perform abatement on a lead source that exceeds thestandard, Minn. Lavs 1990, Sec. 5, subd. 1 and 2. AbsentLegislative mandate, it is unreasonable to assume that theAgency is granted pover to do so. Thus* the Agency cannotreserve for itself the pover to assess and order soil leadabatement for lack of statutory authority.

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?he following paragraphs are supplement to th* Statement of Need and

Reascnableness. Th* Agency believes that it is necessary to propose some

changes to the proposed rults to promote clarity and avoid confusion during

enforcement of the rule** These changes afford all the involved parties clear

and concise information regarding the requirements of the rules.

Part 4750.0010 Applicability

Staff is proposing changing the term "property owner" to person. A property

ovner may not alvays be the person doing the abatement. By substituting the

term "person" for the term "property ovner" the rules vill apply to any person

performing soil lead abatement. Staff is proposing that the term "person" be

substituted wherever the term "property ovner" appears in the rule.

Staff is also proposing to add the term "playgrounds" at the end of the

sentence. The statute requires that the proposed rules apply to residential

property and playgrounds. This omission vas an oversight and is being corrected

vich this proposed change.-̂

Also, the phrase in the applicability section "or has been ordered to perform"

is being deleted because a person performing abatement and a person ordered to

perfoirm abatement are the same concept. The proposed change removes the

, redundancy.

Part 4750.0013 Definitions

Subp. 4. Bare Soil

The definition of bare soil as "one square foot or more where soil is visible/

is difficult to interpret. It is unclear vith this definition as to how much of

an ar«ia vith visible soil is to be considered bare.

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Staff does not believe that defining bare soil as an area vhere soil is visible

is reasonable and the definition should be more specific. An area vhere soil is

visible could mean that one square inch of visible soil may have to be tested

and possibly abated. This is not necessary or reasonable to protect children

from lead poisoning. Staff feels that a bare area vould have to be large enough

before it vould pose a potential hazard.

A written comment vas received suggesting that bare soil mean,"an outdoor area

vhere soil is visible over a continuous area of on* square foot or more"

(exhibit 40). This definition seemed reasonable and MPCA staff is proposing

changing the definition according to the written comment-

Subp. 8 Playgrounds

Staff is proposing changing the last sentence under the definition of

playground. The language currently says: "Playgrounds do not include public

park; or playgrounds." The proposed change replaces the words "do not" vith the

word "may."

Results from surveys (exhibits 9 and 11) shov that public parks and playgrounds

contain very lov levels of lead in the soil. Staff feels it vould be

unnecessary for the local boards of health to test these soils. There vere

tcomments received in the hearing requests suggesting that there v*re some public

playgrounds that contain high soil lead levels and that those playgrounds should

not be excluded from the regulations. Staff feels that based on available data

regarding public parks and playgrounds that testing of these soil* should not be

required but could be an option based on the evaluation of the person doing the

lead assessment. Changing the vords "do not" to "may" achieves that balance.

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4750.0020 Bare Soil Standard

MPCA s':aff is proposing to delete the language referring to an assessment by the

board of health. The bare soil standard will apply to all residential

properties regardless of vhether an assessment is required.

4730.0030 Abatement Methods for Bare Soil

Subp. !. Applicability

This part needed grammatical correction. The abatement methods apply to the

person who is performing the abatement regardless of vhether he or she is the

person vho has been ordered to abate.

4750.0030 subpart 2 Abatement Methods

Item A.. The vord "removed" is added to the sentence so that the environmentally

acceptable option of removing the soil can be allowed if the person doing the

abatement chooses to do it rather than covering it.

The word "rototilled" is changed to the vord "tilled" because "rototill" is a

brand name and implies a motorized tool. The vord "tilled" is a more general

term.

Item B. The rules as proposed vould have required removal of soil at 1000 parts

.per million. This level vas chosen primarily because this is the level at vhich

EPA hai; removed soil at superfund sites. However, it is the staff position soil

does not need to be removed for a number of reasons-

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Firs:t, EPA has set a guideline for lead in soil of 500-1000 parts per Billion.

EPA has, historically, used th€ upper limit of 1000 parts per million as a

"cleanup" level at superfund sites. EPA has based this guideline on information

iron the Agency for Toxic Substances and Disease Registry (ATSDR). EPA generally

attempts to treat the soil in place as a first measure (personal communication,

J. Dufficy, region IV EPA). At superfund sites, lead is usually only one of

many constituents contaminating the soil. Vhen soil is removed from a superfund

site it is generally because of pollutants which are significantly more unstable

in soil than lead'

Second, lead in soil in and of itself is not a hazard* It is a natural element

in many soils (ATSDR report, "The Nature and Extent of Lead Poisoning in

Children in the United States," p. II-l, 1988). It is only vhen leaded soil

becomes exposed and available to children to play vith or to be vindblovn into a

home as dust that it poses a hazard to public health.

Third, lead in soil does not leach readily unless it is placed into very acidic

conditions (Ellias, R.E., "Soil-lead Abatement Overview: Alternatives to Soil

Replacement," in Lead in Soil; Issues and Guidelines," p.302, 1988). Therefore,

it poses no threat to the environment if left in place on a yard.

, Lastly, since a significant amount of soil in the state contains more than 1000

parts per million (exhibit 1), removing all soils vith more than 1000 parts per

million, even if it vere in the limited instance of those properties vhere an

abatement order has been issued, vould result in the increase of lead to the

wast a stream.

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The only instance in which staff feels removal is warranted is if the bare soil

contains visible paint chips. It is the position of MFCA staff that the

ingestion of lead paint chips or dust is the primary cause of lead poisoning. If

paint chips arc visible in the soil they should be removed so that even if the

soil becomes re-exposed the paint chips will not be available.

Item D. The language of the previous item D vas unclear. Nev language is

proposed so that the variance requirement can be more easily understood.

Subpart 3. Abatement Implementation

Item C. Staff received comments regarding the soil abatement procedures

suggesting that soils should be washed off sidewalks or steps before placing nev

soil or sod down so that contaminated soils from the abatement vork will not be

washed onto the top of the nev soil or sod at the end of the day. This method

vill prevent the contaminated soil from being exposed to the environment.

Part 4750.0035 Disposal of Waste Materials from Abatement Projects

Subparts 2 and 3. In each sentence in subparts 2 and 3 the language "by an

abatement contractor" has been added in order to make it more clear that it is

abatement contractors vho vill have to manage lead vaste according to Minn.

Rules :h. 7045. Home ovners doing lead abatement vork themselves on their own

property are exempt from the requirements of Minn. Rules ch. 7045, Normal

household refuse generated by homeovners is exempt under Minn. Rules ch.

7045.0120, item A.

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Lgcal Public Bodies

Minn. Stat. $ 14.11, subd. 1 (1990) provides that if the adoption of a nev

rule by an agency vill require the expenditure of more than $100,000 in either

of tie first tvo years the rule is in effect, the agency must include vith its

noti:e of proposed rulemaking an estimate of the total cost to local public

bodiss for the first tvo years. The MPCA has determined here that these

proposed rules vill not impose on local public bodies costs in excess of

$100,000 in either of the first tvo years the rules are in effect.

Minn. Stat. $ 14.131 provides that an agency must prepare a fiscal note

before it publishes a rulemaking notice if required by section 3.9692. Section

3-962 requires a fiscal note vhen nev legislative action vould force a local

agency or school district to incur costs. Costs are mandated if the local

agency or school district could suffer civil liability, criminal penalty,

substantial economic sanction such as loss of funding, or severe administrative

sanctions such as closure of a facility or program if the local agency or school

district failed to comply vith the nev lav. Minn. Stat. § 3.981, subd. 5

(1990).

In the Agency's vicv, a fiscal note is not required here because no

obligations are being imposed on local agencies and school districts by the

^proposed rules. The proposed rules establish a bare soil lead standard for

residences and playgrounds and abatement methods that apply vhen abatement is

undertaken. There is no civil liability, criminal penalty, substantial economic

sanction, or severe administrative sanction that may fall upon a local agency or

school district.

::t is possible that at some point a local agency, through ownership of a

residential building or payment of assistance funds to a property owner, or a

school, district, through ownership of a playground, may have to abatt

contaninated soil at a residence or playground. However, nothing in these

proposed rules mandates such an obligation.

The Department of Health is in tht process of promulgating rules that

require local boards of health to conduct assessments to find the sources of

lead vhen children or pregnant women are discovered to have high blood lead

levels. There may be some new expenses involved with these assessments. The

Department of Health has prepared a fiscal note to accompany its rulemaking

efforts.

'-hile the MPCA is of the view that nothing in its proposed rules mandates

new actions or new costs on local agencies and school districts, the Agency has

attempted to estimate what financial repercussions may fall on these local

bodies to abate contaminated soil. Based on personal communications with local

boards of health, local bodies pay half the cost of abatement for eligible

families; otherwise property owners pay the full cost of abatement. In the case

of public housing, federal monies that subsidize the units are used for any lead

abatement, frequently on a case by case basis.

According to soil surveys based on census tracts, the Cities of Minneapolis

and St. Paul have the highest concentration of lead contaminated soil. However,

the City of Minneapolis has in the past ordered abatement on only five to ten

houses per year, at an average cost of $1,000 per house. Thus, the present cost

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to public bodies could reach only $5,000 per year, based on maximum houses and

paysent of $500 for all kinds of abatement not just soil per household.

Vith the adoption of the proposed rules, the City of Minneapolis Department

of Health estimates a maximum of forty houses for abatement per year. This

could cost a maximum of $20,000 per year to public bodies, based on a $500

payment per house and eligible families in these houses. The City of St. Paul

could also order abatement on some houses, but probably less than Minneapolis.

Sines lead contaminated soil is concentrated in the Tvin Cities, the Agency does

not -axpect the statewide public cost to exceed $100,000 per year.

Given these estimates, the fact that the property ovner must satisfy

eligibility requirements before the government contributes to the abatement

cost, and the limitation of one half of the cost, it is unlikely that the cost

burdun to local public bodies of these rules will exceed $100,000 per year. The

Agency believes that is has complied vith all statutory obligations to examine

the financial impacts of its proposed rules.

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EXHIBITS

1. Hinn. Lavs, 1990 ch. 533.

2. Bornschein, R, L. et. al. "Soil Lead Blood Lead Relationship in a FormerLead Mining Town." In Lead in Soil; Issues and Guidelines. Edited byBrian Oavies and Bobby Vixson, (1988).

3. Chaney, R. L. et. al. "Speciation, Mobility and Bioavailability of SoilLead," In lead in Soil; Issues and Guidelines. Edited by Brian Daviesand Bobby Wixson, (198B).

4. Chisolm, J. "L«ad Poisoning." Scientific American, Vol. 224, No, 2,February 1971.

5. Duggan, M. and M. Inskip. "Childhood Exposure to Lead in Surface Dust andSoil: A Community Health Problem." Public Health Rev. , Vol. 13, No. 1,(1985).

6. Filk, H. and R. T. Ing. HTh« Centers for Disease Control Perspective ofL»ad in Soil." In Lead in Soil! Issues and Guidelines. Edited byBrian Davies and Bobby Wixson, (198$).

.7. Lln-Fu, Jane S. The Evolution of Childhood Lead Poisoning as a Public8<salth Program. From Lead Absorption in Children. Edited by Chisoln andO'Hara, (1982).

8. Marcus, A. and J. Cohen. "Modeling the Blood Lead-Soil Lead Relationship."In Lead in Soil: Issues and Guidelines. Edited by Brian Davies andBobby Wixson,

9. M:,elke, H. V. et. al. Soil-Dust Lead and Childhood Lead Exposure as aFunction of City Size and Community Traffic Flov: The Case for LeadAbatement in Minnesota. In Lead in Soil: Issues and Guidelines. Editedby Brian Davies and Bobby Wixson, (1988).

10. Nriagu, J. 0. "The Biogeochemistry of Lead in the Environment." Topics inEnvironmental Health, Part A (1978).

11. Soil Lead Report to the Minnesota State Legislature: A statement by theMinnesota Pollution Control Agency and the Minnesota Department -of Health,Jtne 1987.

12. Tiippler, D., M. Schmitt, and G- Lund. Soil Lead in Minnesota. In Lead inSell: Issues and Guidelines- Edited by Brian Davies and Bobby Vixson,

13. Soil Lead Levels: "A Report to the St. Paul Board of Health." from theDivision of Public Health.

-11-

14. Agency for Toxic Substances and Disease Registry. The Nature and Extent ofLead Poisoning in Children in the United States: A Report to Congress,pp. IX-12-IX-14, U.S. Department of Health and Hunan Services Public HealthService, Atlanta, Georgia.

15. Mclntyre D. and M. Mahoney. "Boston Soil Lead Project." In Lead inSoil; Issues and Guidelines. Brian Davies and Bobby Vixson, (1988).pp. 247̂ 232:

16. Farrell, K. "Baltimore So 11- Lead Abatement Demonstration Project." XnLead in Soil: Issues and Guidelines. Brian Davits and Bobby, (1988).pp. 281-283.

17. Clark, S. et. al. "The Cincinnati Soil-Lead Abatement DemonstrationProject. H In Lead in Soil; Issues and Guidelines. Brian Davies andBobby Vixson, (1988). pp. 287-300.

13. Elias, R. "Soil-Lead Abatement Overviews Alternatives to SoilReplacement." In Lead in Soils Issues and Guidelines. Brian Davies andBobby Vixson, (19867̂ pp. 301-303

19. Jenkins, G. et. al. "Lead in Soil: The Ontario Situation." In Lead inSoil; Issues and Guidelines. Brian Davies and Bobby Vixson, (1988).pp.

20. Davits, B. "Lead in Soils: Its Sources and Typical Concentration." InLead in Soil; Issues and Guidelines. Brian Davies and Bobby Vixson,(1988). p?7 65̂7!T

21. Hoffnagle, G. "Real World Modeling of Blood-Lead from EnvironmentalSources." In Lead in Soil: Issues and Guidelines. Brian Davies and BobbyVixson, (1988)"; pp. 73-93.

22. Rabinowitz, M. "Stable Isotope Ratios of Lead Contaminants in Soil." InLead in Soil: Issues and Guidelines. Brian Davies and Bobby Vixson,(1988). pp. 131-141.

23. Hammond, P. "Overviev of Human Exposure Pathvays." In Lead in Soil:Issues and Guidelines. Brian Davies and Bobby Vixson, (1988). pp.143-148.

24. Chisolm, J. "Interrelationships Among Lead in Paint, Housedust and Soil inChildhood Lead Poisoning: The Baltimore Experience." In Lead in Soil:Issues and Guidelines. Brian Davies and Bobby Vixson, (1988). pp^185-193.

25. "Massachusetts Lead Poisonings Regulations," 105 CHR 460.000.

26. "City of Baltimore Abatement Regulations for Lead Paint," July 1987.

27. Farfel, H. "Reducing Lead Exposure in Children." Ann. Rev. Public Health,1985. pp. 333-357.

-12-

28. Clark., C. et. al. "Condition and Type of Housings as an Indicator ofPotential Environmental Lead Exposure and Pediatric Blood Lead Levels."Environmental Research 38 (1985). pp, 46-53.

29. Haar, G. T. "New Information on Lead in Dirt and Dust as Related to theChildhood Lead Problem*" Environmental Health Perspectives. May 1974.pp. 83-89.

30. Irobus, C. et. al. "Peripheral Neuropathy in Lead-Intoxicated Sickle CellPatients." Muscle and Nerve, March/April (1978). pp. 168-171.

31. E-uggan, M. J. "Lead in Urban Dust: An Assessment." Uater, Air and SoilJollution 14 (1980). pp. 309-321.

32. hunter, R. "Inductively Coupled Plasma Atomic Emission and AtomicAbsorption Spactromety in Soil and Plant Testings." Department of SoilScience, University of Minnesota. Paper presented at the 8th Soil-PlantAnalysts Workshop, Cleveland, Ohio. November 4, 1980.

33. Kielke, H. et. al. "Urban Lead Levels in Minneapolis: The Case of thefcmong Children." Environmental Research 34, (1984). pp. 64-76.

34. 'Preventing Lead Poisonings in Young Children." A Statement by the Centersi:or Disease Control - January 1985. U.S. Department of Health and HumanServices, pp. 5-7.

35. Clapp, R. "The Massachusetts Childhood Lead-Poisoning Prevention Program.In Low Level Lead Exposure." The Clinical Implications o£ CurrentResearch, H. L. Needleman. Nev York Raven Press, (1980). pp. 285-191.

36. Marshall, E. "Senate Considers Lead Gasoline Ban," Science Vol. 225.July 1984. pp. 34-35.

37. Callacher, J. et. al. "Relation Between Pica and Blood Lead in Areas ofDiffering Lead Exposure." Archives of Disease in Childhood, 59, (1984).pp. 40-44.

38. "Revlev and Recommendations on a Lead in Soil Guideline." Report to theMinister of the Environment by the lead in Soil Committee, Ontario. May:.9B7. pp. 56-67.

39. Title 26, Department of the Environment. Procedures for Abating LeadContaining Substances from Buildings. Maryland Register, Vol, 15, Issue 7.March 25, 1988.

40. Comments from James Sorbel, John Knoefler, and Harcia Gelpe.41- i>tate Register, Vol. 15, No- 14., pp. 825-828.

42. Order for Hearing.

43. Statement of Need and Reasonableness.

44. Notice of Hearing-as mailed.

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45. Hailing List Certificate.

46. Affidavit of Mailings,

47. Proposed Rules vith Reviser's Certificate.

48. Notice of Intent to Solicit Outside Opinion published in the State Registeron June 25, 1990 (14 S-R- 52). (No comments were received in response tothe Notice.)

49. Notice of Intent to Adopt Rules without a Public Hearing and Notice ofIntent to Adopt Rules vith a Public Hearing Upon Receiving 25 or moreRequests for a Hearing.

50. Proposed changes to the rule.V

51. Supplement to the Statement of Need and Reasonableness,

52. Certificate of Board's Authorixing Resolution.

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45. Hailing List Certificate.

46. Affidavit of Mailings.

47. Proposed Rules with Revisor's Certificate-

48. Notice of Intent to Solicit Outside Opinion published in the State Registeron June 25, 1990 (14 S.R. 52). (No comments vere received in response tothe Notice.)

49. Notice of Intent to Adopt Rules vithout a Public Hearing and Notice ofIntent to Adopt Rules vith a Public Hearing Upon Receiving 25 or moreRequests for a Hearing.

50. Proposed changes to the rule.

51. Supplement to the Statement of Need and Reasonableness.

52. Certificate of Board's Authorizing Resolution.

1 Pol lu t ion Central2

3 Proposed Pernanent Rules Relating to lead Abatement in Soil4

5 Rules as Proposed (all new saterial)

6 4750.0010 APPLICABILITY.

7 Parts 4750.0010 to 4750.0050 apply to a property owner wno

8 .̂i-s-per-fopnrrrte-o* has been ordered to periota abatement or lead

9 in hare soil on residential property.

13 4730,0015 D£riNlTIONS.

1.1 Sucpart i. Scope'. For purposes or: parts 4750.0010 to

I.! 4750.0050, the following terai have the meanings given them.

1-1 Sub?. 2. Abateaent contractor. "Abatement contractor" has

1'; the maning given in Minnesota statuses, se.cticn 144.871,

K Subp. 3. Agency. "Agency" means the Minnesota Pollution

11 Cantrol Agency.

IS Subp. 4. Bare soil. "3are soil" -sans an outdoor area o.'19 cne square f=o: or more where soil is visible.

20 Sub?. 5, Board of health. "Board cThealth" has the

21 aeaning given ia Minnesota Statutes, section 145A-02,

22 s-idivision 2.

23 Subp. 6. Comaissioncr. "Cosuaissioner" .Tteans :he

24 ccr^issiantr of the Minneseta Polluticr. Cantrol Age. icy.

25 Subp. 7. Hazardous waste. "Ha±ar=cus va«te" has the

25 meaning given it in Minnesota Statutes, section 1155.02,

27 subdivision 9.

28 Subp. 8. Playground. "Playground" means an cpen area,29 including. vacant lots, used £sr outdoor games, recrntion, and30 amusement that may contain ivingc, seesaws* slides, or oeh«r

31 means'fot children's recreation and play. Playgrounds do not

32 include public pariis or public playgrou.-.ds.J3 Subp. 9. Residential property. "Resident ial prcpersy"

14 means real proper ty that contains a house, bu i ld ing , o: other

35 s t r u c t u r e used or intended far use as r.u=ar. hab i ta t ion . ?.*•.«

03 'I-!'' 5 3

1 term residential prsperty includes all cpen ar-as en the real

2 property tha: say be used by children as playc:cunds ar.d

3 includes sidewalks, walkways, gardens, and driveways.

4 47S0.0020 3A*£ SOIL ST

5 Bare soil on residential property or on play9rounds foe

6 which a board ot health is required to conduct an assaisntent

7 under Minnesota Statutes, section 144.874, subdivision I, must

8 not contain lead in a concentration of 3/100 of on* percent (300

9 pares per million) or more by weight.

10 4750. 0030 ASATrHEN? MSTEOOS FOR 3AAS SOIL.

11 Subpart 1. Applicability. ' The abatement methods

12 prescribed in this par: apply to a proptrty owner who has been

13 ordered by a board of health to abate bare soil on residential14 property or a playground Chat has been determined to exceed e.ie

15 bare soil standard established in part 4750.0020.

16 Subp. 2. Abatement. methods. A property owner who is

17 required to undertake abatement of bare soil shall implement one

13 cf the following abatement methods : •

19 A. the bare soil must be rocotilled and the resulting

20 area covered with sod or other ir-aterial that will prevent the

21 bare soil from Seing expcstc?

"21 B. it tne bare soil contains more than 1,000 parts

23 per rmllisn lead, the soil muse be re^Ovtd and replaced wi.cn

24 soil that does no: ceneain more than 25 pares pe: million lead;

25 or

26 C. an alternative abatement oetho4 approved under the

27 variance procedure in par: 47S0.0050.

28 Subp. 3. ASacetnent impleaentation. A property owner who29 is required to undertake abatement of bare soil shall follow tft*

30 procedures in items A to C when abating soil.*

31 • f A. Children muse be prohibited from playing cr

32 otherwise coming in contact witn the soil being disrupted during

33 abatement.14 0. soil chat is removed muse bt properly scored or

35 disposed at. at the end of each work day.

or **«vitor

3 3 /1; /« 0 £ 3SVISCa 1 CMS/13 R3 i T i ;

1 C. Soil can steps ana walkways oust be removed *nd

2 steps, walkways, and foundations must be hosed oif with water a:

3 ' the end of each work day.

4 Subp. 4. Abatement priority. It abatement of bare moll ii

' ; • 5 done at « residential property or a playcround in conjunction; € with other types of lead abatement, the abatement of the b*re

7 soil must be done after paint abatement but before interior dust

B abatement.

:•'' 9 4750'. 003S DISPOSAL Or WAST! MATERIALS "ROM A1A7S.Y£JJ? PROJECTS.

13 Subpart i. Demolition debris. Demolition debris, such as

1L windows, doors, walls, and canerete, c;sated from an abatement

1.2 project may be disposed of in • demolition landfill.

1.1 Subp. 2. Other leaded debris. 7he''prap«:ty owner must

1-1 car.ply with the requirement! of chapce: 7045 for other waste

l!i material frca an abatement project. 0;net waste material

li> induces both the waste material fra.-n the residential property

i: and any waste .-natecial, such as ioiv«-:s, aenerated as part of

1£ the abatement project. Ar.y waste material that ;s determined t=

15 be a hazardous wasti must iae K*nag*d as a hazardcus waste.

2C Subp. 3. Bare scil. 7he proper:;-1 owner must ecmply with

21 the requirements of chapter 7045 for ary bare scil excavated as

22 part of an abatement project. Bare soil that esr.tai.-.s lead in

2: sum ccnctntratisr. thas i: is a hazardous waste s-js: be aana^td

24 as a hazardous waste.

25 4750.0040 ASATSMSNt CONtRACtOR DUTIZS.

, » 26 If a property owner who is required =3 undertake abatement

27 of bare soil hires an abatement eantrae::: ta caneuct the

2fl abataaert, the abatement ccntractar shall earapiy with the

: 29 requirements cf parts 4750.0030 and 47S0.0035.

30 47SO.OOSO VARIANCI.' f

• - 31 Subaart 1. Procedure!. A property cwner who is required

32 to undertake abatement cf bace soil may *??ly Ccr a variance33 froet the requirements ot part 47S0.0030. schpart 2, item A or 9.

" 34 to allow for use of innovative abatement =«cr.cc"s. The property

3 I N H E R I N G TO ; j I Ib db-lQ 7 !-JoD hMGE.G^ 05'

r Shall ccnply with part 7000.0700 in applvir.g f;: C"e

2 variar.ct ar.d the aqencv shall aci upon tht vaciarce rtques;

3 according to the procedurts of part 7000.0700.

4 ' Subp. 2. Burden of proof. The property owner who applies

5 for A variance has the burden of establishing that the variance

6 should be granted.

? Subp. 3. Granting of the variance request. The agencyS shall grant the variance request "if the property owner

9 establishes that the innovative abatement method will ensure

10 that upon completion of the abatement, no person will come in11 contact with bare soil chat exceeds the bare soil standard in

12 part 4750.0020.

' f

E N G I N E E R I N G

STATE OF MINNESOTAPOLLUTION CONTROL AGENCY

In the Hatter of the Proposed Rules STATEMENT OF NEEDGovar-iung Standards and Abatement "' AND REASONABLENESSMethod:: for Lead in Bare Soil onPlaygrounds and Residential Property,Minn, Rules Pts. 4750.0010 through4750.0050.

I. INTRODUCTION

The Minnesota Legislature delegated the authority to the Minnesota

Pollution Control Agency (hereinafter "Agency") to adopt standards and abatement

methods for lead in bare soil on playgrounds and residential property.

Minnesota Lavs 1990, ch. 533, See. 7, subd. 2(b) and 3 (to be codified at Hinn.

Star. S 144.378, subd. 2(b) and 3), (hereinafter "the Act").

To promulgate the proposed rules, the Agency shall conduct its proceedings

in accordance vith the rulemaking requirements df the Administrative. Procedure

Act, Minn. Stat. ch. 14 (1933). Under Minn. Scat. ch. U the Agency

engaged in rultmmking. is required to matte an affirmative presentation of facts

establishing the ne«d for and reasonableness of the proposed rule, henct, the

purpose of this document.1 ' This Statement of Need and Reasonableness is composed of eight parts.

Part I introduces the nature of the proposed rules and the process us«d to draft

the proposed rules. Part II provides the Agency's statutory authority to adopt>

the proposed rules. Part III discusses the need for the proposed rules. Part

IV discusses the reasonableness of the proposed rules. Part V presents the

considerations for reducing the impact on small businesses. Part VI discusses

hov economic factors have been taken into account- Part VII provides the

conclusion that the proposed rules are both neactd and reasonable. Par; Vi:i

contains a list of exhibits rt.Ued or. by the Agency to support the proposed

rules. The exhibits are available for reviev at the Agency's offices at 520

Lafayette Road North, St. Paul, Minnesota 55155.

II. STATEMENT OF AGENCY'S STATUTORY AUTHORITY

The Agency's statutory authority totadopt the proposed rules is set forth

in Minn. Scat. 1990, ch. 533, sec, 7 subd. 2(b) and 3 (to be codified at Minn.

Stat. § 144.878, subd. 2(b) and 3) vhich provides:

Subd. 2 (b). "By January 31, 1991, the commissioner of thePollution Control Agency shall adopt standards and abatementmethods for lead in bare soil on playgrounds and residentialproperty in a Banner to protect public health and theenvironment."

Subd. 3. "In adopting the rules required by subd. 2, th«commissioners of health and the pollution control ag«ncyshall provide variance procedures to allov for use ofinnovative abatement methods. A person vho proposes aninnovative abatement method must justify the need for th*variance and must comply vith the standards established inrules adopted under this section."

Under this statute the Agency has the necessary statutory authority to

adopt Minn. Rules pts. 4750.0010 to 4750.0030, and Minn. Rules pts. 4750.0040 to

4750.0050 of the proposed rules.

In proposed Minn, Rules pt. 4750.0035, the Agency is referencing existing

state- rules as they relate to the evaluation and disposal of lead abatement

wastes. The 1990 Act does not specifically delegat* authority to th« Agency to

regulate the management and disposal of lead vaste materials in this rultoaking.

Hovev<>r, the Agency believes that proper disposal of lead containing materials

is an essential element of the state's strategy for reducing lead in th«*

environment. In this rulemaking, under the general rulemaking authority of

Minn. Stat. § 116.07, subd. 4, th« Agency is clarifying the applicability of

existing rules as they relate to the disposal of lead containing materials that

have been abated.

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III. STATEMENT OF NEID

Miiin. Stat. eh. 14 (1938) requites the Agency to make an affirmative

presentation of facts establishing the need for ar.d reasonableness of the rules

as proposed. In general terms, this means that the Agency must set forrh the

reasons for its proposal and the reasons must not be arbitrary or capricious.

Hovever, to the extent that need and reasonableness are separate, need has cone

to mean that a problem exists vhich requires administrative attention, end

reasonableness means that the solution proposed by the Agency is appropriate.

The need for the proposed rules is discussed*belov.

Le.id, symbol Pb from the Latin plumbum, is one of the ancient metals.

Nriagu J,, "The Biochemistry of Lead in the Environment" Part A (1978). It has

become an intricate part of our modern vay of life. Lead is used in solder for

food can:; and electronic equipment, for making pipes, in automotive and other

storage batteries, in gasoline, in craft materials, in paints, artvorks and

newsprints, in brassvares, in dinnervares, crystals and plastics, in caulking

and soundproofing material for buildings, ships and jet planes, in cable

covering of intercontinental communication systems, in ammunition, in certain

--•eights ;ind sinkers for fishing. Lin-Fu J - S - , "The Evolution of Childhood Lead

Poisoning as a Public Health Problem". In Lead Absorption in Children edited by

J., Chisol.ra and O'Hara, (1982). (Exhibit #7).

FoMoving the Industrial Revolution of the 15th century, the use of lead

in the United States has increased rapidly. Id at 1. Il brought comfort and

convenience to our life style but vith no knovn essential or physiologic role in

the human body. Id. Such high use resulted in vide occurrence of lead in our

environment. Because of its high resistance to erosion and decay, it became one

of the most persistent environmental pollutants. See Nriagu ac page 4.

(Exhibit 510)

Today, as an environmental pollutant, lead has avakened the social

conscience because of its major impact on young children. Vhen lead is ingested

or inhaled by children, it can accumulate in their bodies to levels high enough

to cajse brain damage, mental deficiency, abdominal pain, anemia and serious

behavioral problems. Chisolm, J. "Lead Poisoning" Scientific American. Vol. 224

(2) (1971). See also D. Bellinger, et, al., "Longitudinal Analyses of Prenatal

and Postnatal Lead Exposure and Early Cognitive Development". The Nev England

Journ.il of Medicine, 316, (17) (1987). (Exhibit *A),.

Studies have shovn that the most susceptible groups are ages betveen 9

month.s and six years, most notably those vho have the habit of eating non-food

substances such as peeling paint-, soil, and dust from interior vails of

deteriorating buildings.' Such hand to mouth activity behavior is termed pica,

vhich is common among this age group of children. See Chisolm at 5.

Undoubtedly, childhood lead poisoning is a real problem. It is more

frequently detected among poor urban children vho live in old, deteriorating

buildings or in inner city houses vhert flaking paint and heavy traffic h*v«

contributed to soil lead contamination. Hovever, elevated blood lead levels can

be found' throughout the population. Minnesota, as far as is known, has the same

conit.rns as have been identified nationally. Mislke. H. » tt.al. "Soil Dust

Lead jmd Childhood Lead Exposure as a Function of City Size and Community

Traffic Flow: The Case for Lead Abatement in Minnesota". In Lead in Soil:. ^ .__. __.iIssue:? and Guidelines. Edited by B. Davies and B. Vixssn. Vol. 9 Series 4.

(1983). (Exhibit #9).

Children have high blood lead vhen exposed to high lead concent ra t ion

m e d i a . See Mielke . e t . a l . at 267. As such, children are excellent

b io ind i ca to r s of available lead sources in the env i ronment . Id. This results

f rom :heir developmanral stage in vhich they cravl, play on the ground and f loor

and eventually place their hands and playthings into their mouths. Id. There

is much evidence that such activities result in ingestion of leaded-paint chips,

dust and soil. See Chisolm at 22. When subjected to epidemiological studies,

results shoved that the ratio of stable isotopes of lead in children's blood

more closely matched the ratio of stable isotopes of lead found in sources in

their immediate environment. Id, at 41. Vhen blood lead data vere analyzed and

compared vith individual sources, it vis found that the mean blood lead

increased vith the increased levtl of exposure. Id. Based on the foregoing,

children accumulate lead in their body vhen exposed to high lead containing

media.

Avare of the long-term effects of exposure to lead, the Minnesota

Legislature took a rational means of protecting populations at risk by directing

the Commissioner of the Agency to adopt standards for one of the lead sources -

bare soil. Soil has been understood to be a potent source of lead exposure and

the likelihood of childhood exposure rises vith increasing soil lead

concentrations. See Hitlki, et. al. at 262.

However, even though much is knovn about the relationship between soil

lead corcentration and blood lead levels, it is impractical to attain a zero

lead level in the environment. Vhat is essential and feasible is that a soil

lead standard be established for child-accessible areas in order to reduce thoihealth hazard for children. Citizens of the State need 4 soil lead standard

because it would set in motion societal mechanisms vhich vould make it possible

to prevent lead poisoning and thus protect children now and in the future. A

soil laad standard is needed because reducing and thus eliminating lead sources

is the key to reducing blood lead levels throughout the population, hence, the

need for the proposed rules.

IV. STATEMENT OF REASONABLENESS

The Agency is required by Minn. Stat. ch. U (1988) to make an affirmative

presentation of facts establishing the reasonableness of the proposed rules.

Reasonableness is the opposite of arbitrariness or capriciousness. It means

that there is a rational basis for the Agency's proposed action. The

reasons.bleness of the proposed rules is discussed belov.

A. Res.onableness of the rule as a vhole

To carry out its duties in promulgating the proposed rules, the'Agency

hereby explains vhat circumstances have created the need for the proposed rules

vhich required administrative action and vhy the proposed action is an

appropriate solution to meet the need.

It has been long held that rules must be reasonable to be valid. To be

reasons.ble, the proposed rules must be vit.hin the bounds of reason. Here, ;he

Agency is faced vith the state's need for a soil lead standard and abatement

methods to protect public health and the environment from lead contamination and

human lead poisoning. Responding to th« Legislature's mandate, the Agency uses

its expertise and rational judgment to accomplish this legitimate purpose. In

so doir.g, the Agency is providing explanations of the evidence it is relying

upon ar.d hov that evidence connects rationally vith the Agency's choice of

action. Moreover, the Agency is presenting reasoned determinations using

scientific results and applying comments from interested persons and community\ '.action groups aimed at abating exposure to lead to justify vhy the soil standard

and abatement methods vera s«lected. Based on the foregoing, the Agency is

articulating a rational connection betv««n the facts found and the choice nade

in promulgating th* proposed rules.

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ii. Reasonableness of individual rules

The folloving discussion addresses the specific provisions of the proposed

rule.

1. M i n n . Rules Ft. 4750.0010 Applicability

Minn . Rules pt. 4750.0010 establishes the applicability of the proposed

rules. The Minnesota Legislature enacted Minn. Lavs, 1990, ch. 533 addressing

lead standards and abatement methods in bare soil on playgrounds and residential

proper ty to protect the health and environment of the citizens of the Sta te .

This p a r t of the proposed rules is needed to provide specific directions and

'guidelines necessary to a t t a in vhat is to be achieved by the Act .

Under applicabili ty, the Agency provides that parts 4750.0010 to 4750.0050

apply to any person vho is performing or has been ordered to perform abatement

of lead in bare soil on residential property. The Agency believes that it is

reasonable to apply these rules to any person vho performs or has been ordered

to perform abatement because each person vail have a major roll to play for :he

ef fec t iveness and enforcement of the proposed rules. Wi thou t such a provision

the ef fec t iveness of the proposed rules vould subs tant ia l ly fall short of the

legislative mandate. Hence , the Agency's provision of appl icabi l i ty of the rule

is reasonable.

2. .Minn. Kules Pt. 4750.0015 Definitionsi -— —" " •• "•"•"" •Minn. Rules pt. 4750-0015 provides definitions ajid meanings of

terminologies found in the body of the proposed rules. This part is composed of

nin« subparts .

In composing defini t ions of the terms in the proposed rule, the Agency

conducted l i tera ture research by referring to existing Agency rule, federal and

other state statutes, scientific studies, and other legal materials and

dictionaries. Based en these findings, definitions that apply to the proposed

rules vere developed.

Subpart 1 introduces to any person affected by th« proposed rule the

meaning of the terms for purposes of parts 4750.01-00 to 4750*0050. It is

necessary to provide such language .in the rule to promote common understanding

of the terms and their meanings. The Agency believes that this means of

presentation is reasonable because it instills a sense of fairness vhich is

essential to enhance compliance vithout undue burden as to the meaning of the

terms. Therefore, the Agency's inclusion of subpmrt 1 in the proposed rule is

reasonable*

Subpart 2 defines Agency as the Minnesota Pollution Control'Agency. An

"Agency" definition is needed to avoid confusion with- other governmental

agencies. The Act requires both the Minnesota Department o-f Health and the

Minnesota Pollution Control Agency to adopt rules on lead prevention. It is -

necessary that the public and other interested parties know that the Minnesota

Pollution Control Agency is the Agency that is responsible- for the proposed

rules on soil lead. The definition provided in this prsposed rule is based on

Minn. Stat. § 116.02 (1983).

Subpart 3 provides a definition for abatement contractor. This subpart

states that abatement contractor has the meaning given irrHinn. Stat. $ 144.871,1 1subd. 3. Under the s ta tu te , "Abatement Contractor" means any person hired by a

prope r ty ovner oc resident to perform abatement. It is necessary to define

abatement contractor in the proposed rules because abatement contractors have

roles and responsibili t ies in lead aba tement . To insure proper reduction of

lead .sources, anyone planning to undertake lead aba tement in a residential

p r o p e r t y must consider various fac tors in selecting an abatement s t ra tegy . One

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of the fac to rs to consider is the need for skilled labor. Abatement contractors

generally fall under this category in undertaking abatement vork. Defining

abatement contractor in the proposed rules distinguishes them from homeovners

and othsr persons vho conduct abatwent act ivi ty but are not required to have

vide experience in demolition and renovation skills. Alternatively, abatement

contractors are required to have the above mentioned skills and are also

subject to federal, s ta te and local regulations necessary for proper

per formance .

"lie Agency believes that defining abatement contractor as stated under the

s t a tu t e is reasonable because it parallels the Legislative intent of providing

an e f f e c t i v e approach to lead abatement.

Bare soil is defined in subpart 4 because it is one of the major eleaents

addressed by the A c t . Based on the Act 's provision, the proposed rules shall

apply only to bare soil areas on playgrounds and residential properties.

Fur thermore , bare soil is referred to by public health officials and c i t i zen ' s

groups ss areas vhere young children may play v i th soil and thus contaminate

their hz.nds v i th lead vhich nay eventually be ingested. Because vhat

c o n s t i t u t e s soil can be interpreted in a number of vays, a def in i t ion is neidtd

for comiron understanding of the ttra. The proposed rule defines bare soil as an

outdoor area of one square foot or store vhere soil is visible because of lark nf

'grass cover or other type of cover that vould prevent soil from being exposed.

The Agency believes that this is a reasonable def in i t ion b*caus« it will provide

useful in fo rma t ion* in addressing soil lead contaminat ion and eventually in

developing a soil lead abatement strategy.

In line vi th this analysis, the Agency established that * one square foot

area vhere soil is visible is considered to be bart soil. There is no question

t h a t children generally spend their time outdoors du r ing play act ivi t ies . As

% such there :s a h igh p r o b a b i l i t y t h a t they nay come in con tac t v i t h bare so i l .

J| U n f o r t u n a t e l y , specific data as to the exact area of bare soil that vill a t t r ac t",i-^ chile ran the most is not available. Hovever, references on this matter vtre

$ generally based on observation of random selection and the fact that children

'_*' instinctively pick up soil followed by ingestion through hand to nouth activity.

$ It was this concern vhich prompted the Agency to define bare soil area as an

> area of one square foot vhere soil is visible. Under tht existing scenario, they

V Agency believes that a child is attracted by a bare soil that is visible and

easily accessible. Undoubtedly, children vith their inherent curiosity are

attracted or allured to those spotty,areas of bare soil. This analysis issif • -•.:. comparable to "Attract ive Nuisance Doctrine" where a person created a condit ion

•J&;j? upon lis premises vhich a t t rac t children to cone there to play. Such

•M ins t rumenta l i ty , in this case a bare soil area, must reasonably a t t rac t children

r£ to com€ an^ pl f ly- Children generally play vhere there is d i r t . Also,

% cont inuous playing vill kill the grass so tha t bare soil areas are indicat ive of

\*| vhere children play- Hence, the ,Agency ' s de f in i t i on of bare soil is reasonable.

Subpar t 5 provides a de f in i t ion for board of heal th . The proposed rules

W' need no d e f i n e board of heal th because the Act states that the "boards of hea l th ;

shall, conduct assessments to determine sources of lead contamination in the

3$j! residence of children and pregnant vomen vhose blood lead levels exceed 25

..;, ' ^icrog'rams per dec i l i te r (ug/d l )" . See Minn. Uvs 1990, ch- 533, sec. 2,

|* subd. 6. (Exh ib i t II) In conjunct ion v i th the A c t , the proposed rules in y••• •/.£,. part 6750.0030 apply to any property owner who has been ordered by a board of $

$r heal th to abate bare soil.

jjj The Act defines board of health as an adminis t ra t ive author i ty es tabl i shed*

?i under H i n n . S ta t , §§ U5A.03 or 145A.07. The Agency is providing the%.4 d e f i n i t i o n in the proposed rules. The Agency believes tha t it is reasonable to '£$ . t.r*

'7 ' -10- Vi

provide a definition consistent vith the Act because the Legislature has

specific intent regarding the applicability of the board of health to protect

public health and the environment.

Subpart 6 defines commissioner. The Act provides that lead standards and

abatement methods be promulgated by tvo State governmental agencies, the Agency

and Minnesota Department of Health. Both agencies are headed by their

respective commissioners. For purposes of the soil lead standards and abatement

methods, Commissioner is defined as the Commissioner of the Agency in the

proposed rules to avoid confusion. Therefore, it is reasonable to define

commissioner.

Subpart 7 defines hazardous vaste. Under the proposed Ninn. Rules pc.

4750-0033, a property ovner oust comply vith the requirements for hazardous

vaste disposal if the vaste material generated during abatement vork is

hazardous vaste. Anticipating questions as to vhat constitute hazardous vaste,

the Agem:y defines hazardous vaste to clarify thai a specific requirement has to

be satisfied for vaste abatement materials classified as hazardous vaste. The

Agency believes that the definition for hazardous vaste is reasonable because it

is consistent vith the definition provided under Minn. Stat. 5 115B.02, sybd. 9.

Subpart 8 defines playgrounds. Studies have found that young children

ingest sail lead from play areas during normal daily play activities. For thisL I

reason, bare soil on playgrounds became a focus of the Ace as a potential source

of lead intake. However, playgrounds can have a broad range of meaning. A

playgrourd m»y be in public parks, in schools and in open fields vhere both

adults ard children play- It is necessary to define playgrounds in the proposed

rule co provide a distinction as to vhich type of playground is regulated.

A playground is defined in the proposed rule as an area used :or outdoor

games, recreation and amusement vhich may contain svings, seesaws, slides and

other means for children's recreation and play.

Playgrounds in public parks and In schools are excluded in the definition

because soil lead studies conducted by Mielke in Soil Ltad Keport :o the

Minnesota Legislature (1987), shoved that public parks have essentially lev lead

levels and are not considered to be a soil lead hazard to children. This is

attributed to lack of flaking paints from deteriorated buildings as compared to

playground on residential property- Id.

Ihe Agency believes that the definition of playground in the proposed rule

is reasonable because it directs attention to play areas and vacant areas around

the house vhere young children are likely to play vith highly contaminated lead

soil. This in turn provides enough information to direct assessment by local

boards of health. Therefore, it is reasonable to define playgrounds as areas

situated on open areas and vacant lots.

Subpart 9 defines residential property. Studies have demonstrated that

exposures to lead occurs in homes painted vith lead-based paint. Research has

shovn that residential property is a major source of human lead poisoning and

for this reason the Minnesota Legislature recognized that there is a strong need

to protect the populations at risk from lead poisoning at their place of abode.

There is a need to define residential property to inform all parties and thei i ipublic vhat comprises a residence in terms of lead contaminat ion . In the

proposed rule, residential proper ty is def ined as real property that contains a

house or a building or other s tructure used or intended for human hab i t a t ion .

It also includes open areas on the real property such as gardens, valkvays and

pathways- Industr ial , commercial and other lyoes of non-rssidential proper ty

are not regulated under these rules. The applicabil i ty of the rules is l imited

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BnF- tN'a I NEEK I MIJ

to activities occurring on residential property. The agency believes that this

is reasonable because the application of the rules is based on the assessments

vhich vill be conducted by boards of health. The Act specifies that these

assessments are to be conducted at specific types of residential property. The

Agency believes that this is a reasonable-definition because it collectively

covers areas in residential property that have the potential for soil lead

exposure. Additionally, this definition addresses the areas that the Act is

intending; to protect. Therefore, the definition is reasonable because it vill

lead to effective reduction of lead exposure*

3. Hinn. Rules Ft. 4750.0020 Bare Soil Standard

Nua-erous studies have provided reasonably reliable evidence of the

relationship betvesn soil and blood lead among populations at risk. Mielke

citing Hammond shoved that children of young age are the most sensitive to lead.

They absorb and retain about fifty percent (50%) of the lead ingested, compared

to an absorption and retention of eight percent (8£) for adults. Along vich

these findings, the U.S. Second National Health and Nutrition Examination

Survey, a survey of lead levels in a large sample of the general public,

revealed that there is a peak value of lead among children occurring at 2 to 3

years of age followed by a decline until early adolescence. Duggan, M.J.,

M.J. InsJclp. "Childhood Exposure to tead in Surface Dust". Public Health\ »

l Rev . 13 (1985). (Exhibit 15).

Great gains in understanding and control of lead poisoning have been nade

clinically through the e f fo r t s of public health officials and pediatricians.

Responding to the national concern regarding lead adverse e f fec t s , the Centers

"or Disease Control (CDC) released a "Statement on Prevent ing Lead Poisoning in

Young Children" in 1985. CDC defined an elevated blood lead level a$ a whole

blood concentrat ion of 25 micrograms per deciliter (uj/dl) . Lead toxicity is