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Using Tracking Data to Promote Environmental Public Health Through Regulatory and Legislative Processes in New York City

McKelvey, Wendy PhD, MS; Blank, Jeffrey JD; Kheirbek, Iyad MS; Torin, Beth MA, RD

Journal of Public Health Management & Practice: September/October 2017 - Volume 23 - Issue - p S32–S38
doi: 10.1097/PHH.0000000000000619
Grantee Programs: Research Article

Legislation and regulation are powerful tools for decreasing health risks from environmental hazards. Legislation is enacted by an elected body, and regulations are issued by an agency in the executive branch delegated authority by the legislature to carry out enacted laws. The New York City (NYC) Environmental Public Health Tracking Program makes data and analytic findings available to policy makers to inform development of sound and effective environmental health legislation and regulation. Tracking data and associated science create awareness of environmental hazards and health impacts, guide strategies for mitigating hazards, and sustain support for effective law by documenting beneficial impacts on the environment and health. We describe how environmental and health surveillance data and analytic findings have informed legislation and regulations related to restaurant food safety and air pollution control in NYC. Using data to guide legislative and regulatory processes helps ensure that policy decisions and directions are based on objective evidence.

Division of Environmental Health, New York City Department of Health and Mental Hygiene, New York City, New York.

Correspondence: Wendy McKelvey, PhD, MS, Division of Environmental Health, New York City Department of Health and Mental Hygiene, 125 Worth St. CN-34E, New York City, NY 10013 (wmckelve@health.nyc.gov).

The authors declare no conflicts of interest.

Legislation and regulation are powerful tools for decreasing health risks from environmental hazards. Government agencies are responsible for using their expertise to help guide legislative proposals and create effective regulations. We have previously reported on environmental health legislative and regulatory achievements that were driven in part by data and information made available by the New York City (NYC) Environmental Public Health Tracking Program (Tracking Program) in the NYC Department of Health and Mental Hygiene (Health Department).1 Funding from the Centers for Disease Control and Prevention (CDC) was instrumental in building a Tracking Program within the Health Department to expand environmental health surveillance and use of data to inform programs and policies. In this article, we use examples from restaurant food safety and air pollution control to describe steps leading up to enactment of legislation and adoption of regulations in NYC. We specify where environmental and health surveillance data and analytic findings were most influential.

The City Council is the legislative body in NYC, consisting of 51 elected representatives from their respective districts. Councilmembers introduce bills that are debated within the relevant City Council committee. The committee holds public hearings on bills to obtain feedback from those who may be affected, and public comments sometimes lead to modification of a bill. If a vote passes in the committee, the bill is sent to the full Council for more debate and a final vote. If the bill passes the full Council, it goes to the mayor who may sign it into local law to be entered into the NYC Administrative Code.2

The NYC Charter sets up a framework for local government.3 Each government regulatory agency is empowered to adopt rules necessary to carry out the powers and duties delegated to it by or pursuant to federal, state, or local law. The charter also codifies a Board of Health within the NYC Health Department that consists of the Commissioner of Health and 10 additional experts in health or medical disciplines, appointed by the mayor with consent from the City Council. The Board of Health is responsible for amending the Health Code, which contains basic provisions for the “security of life and health in the city.” The Health Department may be required to write rules in response to legislation or Health Code amendments. Other regulatory agencies may be similarly required to implement legislative requirements. Health Code amendments and agency rules that are adopted can be found in the Rules of the City of New York (RCNY).4

The NYC Administrative Procedures Act of the NYC Charter states that the public must be given an opportunity to review and comment on rules proposed by an agency.3 Agencies must post an official notice of a proposed rule in a publication called the City Record of New York, stating the purpose, the legal authority, date of a public hearing and deadline for submitting comments.5 Agencies may modify proposed rules in response to public feedback. The final version of the rule is published in the City Record, and a copy is submitted to the City Council.

The NYC Tracking Program has acquired environmental and health data from numerous administrative, surveillance, and programmatic sources. These data have been used by policy makers and public stakeholders at various stages during legislative and regulatory processes. Many key environmental health indicators are available through the Environment and Health Data Portal.6 Data and analytic findings can generate awareness of environmental hazards and their relative health impact; they can inform formulation of proposed bills and rules. The informatics systems developed to house and access tracking data have also been instrumental in supporting implementation and evaluation of new rules and laws. We provide examples from restaurant food safety and air pollution control to illustrate how data can be used at varying steps to further environmental public health goals.

The Box to the left summarizes steps a tracking program can take to support legislative or regulatory processes.

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BOX How Can a Tracking Program Support a Legislative or Regulatory Approach to Promoting Environmental Public Health? Cited Here...

Step 1. Use data to create awareness of the hazard and its health impact.

Step 2. Understand existing legislative and regulatory requirements surrounding the hazard.

Step 3. Understand jurisdictional authority for proposing new legislation or promulgating regulation.

Step 4. Provide a data-driven rationale for a strategy to mitigate a hazard in a “statement of purpose” for a regulation or in a bill or during public hearings.

Step 5. Provide education and support to those affected by the new law or rule.

Step 6: Use data to track hazards and health impacts to maintain support for effective laws and rules.

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Restaurant Food Safety

Using data to increase awareness of the hazard

The CDC estimates that more than half of all foodborne illness outbreaks are associated with eating in restaurants.7 NYC restaurant food safety requirements are outlined in the Health Code, and inspectional procedures are laid out in Health Department regulations. The Health Department Office of Food Safety is responsible for inspecting restaurants to determine regulatory compliance and educate operators on proper food safety practices.

In 1998, the Office of Food Safety began to use a system of handheld computers to capture electronic inspection data in the field. A grant from the CDC Environmental Public Health Tracking Program in 2006 supported “Network Implementation” projects that—for NYC—included the design and implementation of an informatics system to access inspection data for analysis, reporting and evaluation. Tracking Program analysts were able to document that food safety practices in NYC restaurants had not been improving over time and limited resources were not being properly allocated to target restaurants in greatest need.

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Using data to support a strategy to mitigate the hazard

Tracking analysts delved more deeply into historical restaurant inspection data to provide support for a new approach that would encourage adherence to food safety standards through public disclosure of inspection results in the form of letter grades at the restaurant entrance. The new approach also established an inspection schedule based on public health risk as determined by previous inspection scores. The Health Department proposed the Restaurant Letter Grade Posting Program to the Board of Health in 2009 (Table 1). The rationale was described in the “Statement of Basis and Purpose” of the Notice of Intention to amend the Health Code, published in the City Record of New York in December 2009.8 Tracking analyses of inspection data from previous years suggested that 20% to 30% of NYC restaurants were consistently being cited for food safety violations that were serious enough to require a repeat inspection. Tracking Program access to hospitalization data also enabled analysts to report on steadily rising rates of hospitalizations for foodborne illness in NYC, strengthening the argument for making programmatic changes.

After a public hearing in February 2010, the Board of Health met to vote on the grading amendment. Members of the Board and industry representatives raised concerns about how the program would play out publicly. With support from Tracking experts, the Health Department provided estimates of the prevalence of violation citations and total score—or grade equivalents—likely to be encountered at the start of the new program. These data helped attest to the feasibility of the program and ensured that the Office of Food Safety was prepared with the necessary sanitarian staff to meet its needs. The Board of Health voted in favor of adopting Article 81.51 (Food Preparation and Food Establishments—Grading of inspection results and posting of grades) into the Health Code. Its resolution stated that the grading program was “feasible, will inform consumer choice and is likely to improve restaurants' compliance with Health Code requirements and thereby reduce the burden of food borne illness in New York City.”9

Soon after the Board of Health vote, the Health Department published proposed regulations, setting out the details for compliance and enforcement in a Notice of Intention to amend the Rules of the City of New York.10 A public hearing on the rules was held in May 2010. The Health Department carefully considered concerns expressed by representatives of the restaurant industry, and the result was a modification of the inspection scoring algorithm to exclude violations not directly related to food safety (eg, expired permit, missing signage, or unshielded light bulb) from a restaurant's total violation score. The health commissioner signed off on the modified rules on June 15, and the program went into effect on July 28, 2010.

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Providing support to those affected by the rule

The informatics systems that were built by the Tracking Program to access and analyze inspectional data have also been essential in supporting implementation of the restaurant grading program. They allow analysts to track the most common violations and other aspects of inspection findings, which are used to inform development of materials to educate restaurant operators and support better compliance with food safety rules. Program leadership can access automated reports on restaurant operator adjudication outcomes, which inform inspector training on proper citation practices. Tracking Program informatics systems have also facilitated scheduling and inspector routing to ensure that program resources are used efficiently and that the city's approximately 24 000 restaurants are inspected within the time frames required by the rules.

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Using data to document beneficial impacts

Since the start of restaurant grading, the Health Department and other proponents of the program have been called upon to respond to industry and legislative challenges. A series of City Council bills addressing restaurant industry concerns about grading were proposed in 2012 and 2013.11,12 The Health Department testified at hearings on both occasions, using data to document improvements in sanitary scores associated with the grading program.13 The data were instrumental in fending off challenges to the program that would have most likely undermined its effectiveness. For example, representatives from the restaurant industry argued for using postadjudicated inspection findings to determine the frequency of next inspections. The Tracking Program was able to demonstrate that preadjudicated findings were much stronger predictors of A-grade performance at subsequent unannounced inspections than postadjudicated findings. The local laws that were finally enacted did not make changes to the structure of the grading program; rather, they codified initiatives to educate and support the industry in achieving compliance with food safety rules and allowed for enhanced transparency of the program.

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Improving Air Quality

Using data to increase awareness of the hazard

The NYC Community Air Survey (NYCCAS) was established in 2008 to monitor variation in air pollution across the city and to identify local sources of variability. NYCCAS has since demonstrated itself to be a valuable environmental health tracking resource. The first report on wintertime pollutant levels identified heating oil as an important source of variation in fine particulate matter (PM2.5) and sulfur dioxide (SO2) levels across neighborhoods.14 At the time, many large buildings used no. 6 and no. 4 heating oils. No. 6 oil is a residual by-product of crude oil distillation, whereas no. 4 oil is a blend of no. 2—a distillate—and no. 6 oils. Both no. 6 and no. 4 oils produce more air pollutant emissions per unit of heat than no. 2 oil or natural gas.15,16 A series of agency and mayoral briefings on the first set of NYCCAS findings emphasizing the role of heating oil in predicting air pollutant levels across the city led former Mayor Michael R. Bloomberg to highlight this finding in a press release on the public health importance of controlling air pollution in NYC.17

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Using data to support a strategy to mitigate the hazard

One local approach to reducing emissions from heating oil expanded upon a New York State Environmental Conservation bill introduced and signed into law in 2010 to reduce the allowable sulfur content of no. 2 heating oil from 2000 to 15 ppm.18 The New York City Council introduced a related bill in April of the same year to also reduce the allowable sulfur content of no. 4 heating oil from 3000 to 1500 ppm, thereby further reducing emissions of both PM2.5 and SO2 (Table 2). The bill also required heating oil to contain a minimum 2% blend of more renewable biodiesel fuel. The Health Department testified at a City Council hearing in May 2010 in favor of the bill, citing the NYCCAS finding that estimated use of no. 6 and no. 4 heating oils explained approximately 50% of the variation in SO2 levels across NYC neighborhoods.19 Analyses of air quality monitoring data were instrumental in moving forward the vote to enact the Clean Heating Law in July 2010. The NYCCAS finding that “the strongest predictor of particulate matter and sulfur dioxide in the air in New York City is the density of nearby buildings that burn fuel oil” figures prominently in the law's rationale.20

On the regulatory side, the NYC Department of Environmental Protection (DEP) used its authority to set fuel standards for issuing heat and hot water boiler permits to limit emissions.3,21 In January 2011, the agency published a notice of a proposal to amend the RCNY to phase out use of no. 4 and no. 6 oils in buildings by (1) immediately prohibiting issuance of permits for any new installations of burners that use no. 4 or 6 oil; (2) beginning July 1, 2012, requiring existing buildings using no. 6 oil to convert to low sulfur no. 4 or cleaner oil before their permit expires; and (3) by 2030 or upon boiler or burner replacement (whichever is sooner), requiring all buildings to use fuel that meets the emissions standards for no. 2 oil or natural gas to receive a permit.22 The “Statement of Basis and Purpose” substantiated the need for new rules by citing scientific evidence of the effect of nitrogen oxides (NOx) and other pollutants on asthma exacerbations and presenting local air monitoring findings that showed higher levels of PM2.5, NOx, and nickel in neighborhoods with high density of no. 4 and no. 6 boilers.23 The rule was promulgated in April 2011, after a public hearing in February.24

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Using data to support those affected by the rule and the law

New rules and laws can be burdensome at first to those affected by them. Providing support and incentives can increase compliance. In 2012, the city launched the Clean Heat Program to accelerate compliance with the new NYC DEP regulations by enlisting energy and buildings experts to provide no-cost boiler conversion technical assistance to building owners and property managers. The program also offered financing options and low-cost loans for conversions.25 Local data on air pollutant levels and health burden attributable to PM2.5 and SO2 exposure26 have helped prioritize neighborhoods for conversion using estimates of the relative health impacts. The clean heat initiatives continue under Mayor Bill de Blasio as part of the “Retrofit Accelerator Program.”27

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Implications for Policy & Practice

* Legislative and regulatory processes are effective tools for promoting environmental public health at the local level, as illustrated by achievements in restaurant food safety and air pollution control in NYC.

* During the development of rules and laws, tracking data and associated science have informed environmental public health priorities and the pursuit of strategies likely to achieve the greatest health impacts.

* Data are persuasive when incorporated into agency testimony, legislative bills, and regulatory and legislative “Notices of Intent” to amend or adopt new rules or legislation.

* Perhaps, the most compelling reason to incorporate tracking data and science into regulatory and legislative processes is to help ensure that policy decisions and directions are based on objective evidence.

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Using data to document beneficial impacts

Evaluation findings can help garner support for particular acts of legislation or regulations. They can provide support for maintaining a rule or a law in its original form or for modifications to enhance or strengthen it. Ongoing air monitoring and health impact modeling have demonstrated the declining levels in SO2 and PM2.5 associated with the no. 4 and no. 6 oils phaseout and estimated health benefits.28,29 These findings have supported efforts to accelerate switching boilers to less polluting fuels and incorporate residual oil phaseout into energy efficiency efforts.25,30 In February 2016, NYC Mayor De Blasio announced that all registered buildings burning no. 6 oil had successfully converted to cleaner fuels.31

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References

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Environmental Public Health Tracking; Legislation; New York City; regulation

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