Senate Bill No. 476
(By Senator Love)
____________
[Introduced March 24, 1997; referred to the Committee
on Health and Human Resources; and then to the Committee on
Finance.]
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A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirty-five,
relating to public health; legislative findings;
definitions; powers and duties of the commissioner for
public health; license categories; licensing of lead
inspectors, risk assessors, supervisors, designers,
contractors and workers; notification and licensure
exemption; special revenue account; notification of lead
abatement projects; approval of training courses;
reciprocity; prohibiting employer discrimination; notice to
employees, violations; reprimands; suspension or revocation
of license; orders; and hearings and penalties.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article thirty-five, to
read as follows:
ARTICLE 35. LICENSURE OF LEAD ABATEMENT INSPECTORS, RISK
ASSESSORS, DESIGNERS, SUPERVISORS, WORKERS AND CONTRACTORS.
§16-35-1. Legislative findings.
The Legislature hereby finds that lead is a toxic substance
and harmful to the citizens of this state. Lead poisoning is a
devastating health hazard to children, which results in long term
health effects. Children exposed to even low levels of lead
exhibit learning disabilities, decreased growth, hyperactivity,
impaired hearing and neurological damage.
Lead poisoning is a result of environmental exposure.
Exposure including, but not limited to, lead-based paint chips,
lead dust and lead contaminated soil presents a serious health
threat to citizens of this state. The most significant source is
lead-based paint, particularly in houses built prior to one
thousand nine hundred seventy-eight. The danger posed by
lead-based paint hazards can be controlled by abatement or
interim controls that limit exposure to lead-based paint hazards.
It is crucial that identifications of lead hazards and
abatement projects are performed by properly trained persons.
The state Legislature finds that in the interest of public health
and safety that standards for licensing of all persons performing
in lead hazard abatement projects, to include inspectors, risk
assessors, supervisors, designers, workers and contractors is to
be established. It is the intent of the Legislature that this
article shall be in addition to all other statutes and rules
concerning lead.
§16-35-2. Definitions.
(a) "Abatement" means any measure or set of measures
designed to eliminate lead-based paint hazards. Abatement
includes, but is not limited to:
(1) The removal or disturbance of lead-based paint and lead- contaminated dust, the permanent containment or encapsulation of
lead-based paint, the replacement of lead-painted surfaces or
fixtures and the removal or covering of lead-contaminated soil;
(2) All preparation, cleanup, disposal and post-abatement
clearance testing activities associated with such measures;
(3) Projects for which there is a written contract stating
that an individual or firm will be conducting activities in or to
a dwelling unit that will permanently eliminate lead-based paint
hazards;
(4) Projects involving the permanent elimination of
lead-based paint or lead contaminated soil and conducted by firms
or individuals licensed in accordance with this law;
(5) Projects involving the permanent elimination of
lead-based paint or lead contaminated soil and conducted by firms
or individuals who, through their company name, promotional
literature or otherwise, advertise or hold themselves out to be
lead abatement professionals; and
(6) Projects where abatement is conducted in response to
federal, state or local abatement orders.
(b) "Bureau" means the bureau for public health of the
department of health and human resources.
(c) "Child lead poisoning" means the amount of lead
circulating in the blood stream of children that exceeds twenty
micrograms per deciliter of whole blood.
(d) "Child-occupied buildings" means any public or private
building or portion thereof, or rooms in a residential dwelling
or unit constructed prior to one thousand nine hundred
seventy-eight, that are regularly frequented: Provided, That
"regularly frequented" means for the purpose of this article that
a child or children six years or under are on the premises for a
minimum of three hours a day twice a week. This definition
applies to, but not be limited to, day care centers, kindergarten classrooms, schools, camps and recreational facilities.
(e) "Contractor" means a person who enters into a verbal or
written contract for a lead abatement project.
(f) "Commercial facility" means any building or set of
buildings or structures for commercial or industrial activity
that are generally open to the public, including, but not limited
to, warehouses, office complexes, industrial facilities, aircraft
hangers and mining facilities.
(g) "Commissioner" means the commissioner of the bureau for
public health or the commissioner's authorized representative.
(h) "Contained work area" means a designated room, or rooms,
spaces or other areas where lead abatement activities are being
performed, including decontamination structures. A contained
work area shall be separated from an uncontaminated environment
in an approved manner as set forth by established OSHA standards.
(i) "Deleading" means activities conducted by a person who
offers to eliminate or reduce lead-based paint or lead-based
paint hazards on superstructures.
(j) "Discipline" means one of a specific type of job or
responsibilities requiring a license and accredited training
before a person may work or perform defined responsibilities in
a lead abatement project.
(k) "Demolition" means the total destruction or removal of
a structure.
(l) "Elevated blood lead level" means the amount of lead
circulating in a person's blood stream that exceeds ten
micrograms per deciliter of whole blood.
(m) "EPA" means the United States environmental protection
agency.
(n) "HUD" means the United States department of housing and
urban development.
(o) "Interim controls" means a set of measures designed to
temporarily reduce human exposure or likely exposure to
lead-based paint hazards, including specialized cleaning,
repairs, maintenance, painting, temporary containment, ongoing
monitoring of lead-based paint hazards or potential hazards and
the establishment and operation of management and resident
education programs.
(p) "Inspection" means a surface by surface investigation to
determine the presence of lead-based paint or lead hazards and
the provision of reporting and explaining the results of the
investigation.
(q) "Lead" means elemental lead, all inorganic and organic
lead compounds.
(r) "Lead-based paint" means paint or other surface coating
that contains lead equal to or greater than one-half percent by
weight, five thousand parts per million or one milligram per
square centimeter.
(s) "Lead contaminated dust" means surface dust containing
lead at or in excess of levels hazardous to human health as
determined by the commissioner.
(t) "Lead contaminated soil" means bare soil containing lead
at or in excess of levels hazardous to human health as determined
by the commissioner.
(u) "Lead contaminated waste" means any discarded materials
that meet the toxicity characteristics as defined by state or
federal standards.
(v) "Lead supervisor" means a person supervising employees
in the operation of a lead abatement project and responsible for
ensuring that abatement activities are conducted in accordance
with regulatory requirements.
(w) "Lead hazard" means any condition that may result in
exposure to lead including, but not limited to, lead contaminated
dust, lead contaminated soil or lead-based paint present on
accessible surfaces, friction surfaces, impact surfaces or other
lead sources that could result in adverse effect on human health.
(x) "Lead inspector" means a person who conducts inspections
to determine and report the existence, nature, severity and
location of lead-based paint or lead hazards in or on any
structure or site.
(y) "Lead abatement designer" means a person who designs
lead abatement projects.
(z) "Lead abatement project" means an activity in target
housing or child-occupied buildings involving the removal,
encapsulation of lead based paint, lead-containing dust,
lead-containing soil or other lead-containing materials and
decontamination of an area.
(aa) "Lead risk assessment" means an investigation of the
potential risk to human health or the environment posed by lead
hazards or lead abatement projects. This written assessment
includes toxicity, concentration, form, mobility and potential of
exposure to lead hazards.
(bb) "Lead risk assessor" means a person licensed by the
bureau who is responsible for or conducts an assessment of lead
hazards and establishes priorities for lead abatement projects.
(cc) "Lead worker" means a person who is employed by a lead
abatement contractor for a lead abatement project.
(dd) "License" means a document authorizing a person to
perform lead hazard reduction activities, without which he or she
would otherwise be prohibited by law to do.
(ee) "OSHA" means the United States occupational safety and
health administration.
(ff) "Owner" means the person who is in possession of a
deed, title or is otherwise responsible for particular property.
(gg) "Owner occupied housing" means a single unit residence
owned by the individual living within.
(hh) "Person" means a corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association or any
individual or entity.
(ii) "PEL" means the permissible exposure level to lead that
a person, worker or agent may be subject to. This is observed by
monitoring blood levels of a person, worker or agent and by air
sampling of the environment of the project site.
(jj) "Public building" means any building that is generally
open to the public, including, but not limited to, museums,
airport terminals, hospitals, stores, restaurants and convention
centers. A public building also includes an office building and
other corporate facilities and a government building that does
not expressly prohibit access to the public.
(kk) "Responsible person" means an individual on site with
the authority and ability to make a decision.
(11) "Superstructure" means structures such as, but not
limited to, bridges, towers, derricks, above-ground storage
tanks, mine structures and utility structures.
(mm) "Target housing" means residential structures built
prior to one thousand nine hundred seventy-eight that could
contain lead-based paint or residential structures that are
confirmed by inspection to contain lead-based paint.
§16-35-3. Powers and duties of the commissioner.
The commissioner for public health shall administer and
enforce this article. The commissioner has the powers and
duties:
(a) To issue licenses and assess fees and fines pursuant to
this article and the legislative rules proposed thereunder;
(b) To propose legislative rules and establish standards
necessary to carry out the requirements of this article in
accordance with the provisions of chapter twenty-nine-a of this
code, which shall include, but not be limited to, required
training, prescriptions for fees and procedures for the issuance
of renewal of licenses;
(c) To accredit training providers, training courses,
examiners, examinations and grading systems developed for
licensing categories pursuant to this article; and
(d) To order reduction or abatement of lead hazards, when
identified lead hazards may result in child lead poisoning.
§16-35-4. Lead inspectors' license required.
(a) Upon the ninetieth day after the passage of this article
by the Legislature, it shall be unlawful for any person who does
not possess a valid lead inspector's license to work as a lead
inspector.
(b) To qualify for a lead inspector license an applicant
shall:
(1) Satisfactorily complete a state accredited training
course for lead inspectors and receive a passing grade on an
examination administered by a state accredited examiner;
(2) Demonstrate to the satisfaction of the commissioner that
the applicant is familiar with, and capable of complying fully
with, all applicable requirements, procedures and standards of
the United States environmental protection agency, occupational
safety and health administration, department of housing urban
development and the state bureau for public health and the
divisions of commerce, labor and environmental protection
covering any part of a lead project; and
(3) Meet the requirements otherwise set forth by the
commissioner.
(c) Applicants for lead inspector license shall submit to
the bureau an application and certificate that show satisfactory
completion of a training course for lead inspectors and he or she
shall pay the applicable fee to the bureau. The commissioner may
deny a license if there has been a failure to comply with the
application procedures or if the applicant fails to satisfy the
application criteria. Written notice of such denial and an
opportunity for reapplying shall be afforded to all applicants.
§16-35-5. Lead risk assessor's license required.
(a) Upon the ninetieth day after the passage of this article by the Legislature, any person who does not possess a valid lead
risk assessor's license to evaluate or develop a lead hazard
assessment for a lead abatement project who engages in such
activities is in violation of this article.
(b) To qualify for a lead risk assessor's license, an
applicant shall:
(1) Satisfactorily complete a state accredited training
course for lead risk assessors and receive a passing grade on an
examination administered by a state accredited examiner;
(2) Demonstrate to the satisfaction of the commissioner that
the applicant is familiar with and capable of complying fully
with all applicable requirement procedures and standards of the
United States environmental protection agency, occupational
safety and health administration, department of housing urban
development, and the state bureau for public health and the
divisions of commerce, labor and environmental protection
covering any part of a lead abatement project: and
(3) Meet the requirements otherwise set forth by the
commissioner.
(c) Applicants for a lead risk assessor's license shall
submit an application and a certificate to the bureau that show
satisfactory completion of a state accredited training course and
provide documentation of a passing score on required examination
for risk assessor from a state accredited examiner and he or she shall pay the applicable fee to the bureau. The commissioner may
deny a license if there has been a failure to comply with the
application procedures or if the applicant fails to satisfy the
application criteria. Written notice of such denial and an
opportunity for reapplying shall be afforded to all applicants.
§16-35-6. Lead abatement worker license required.
(a) Upon the ninetieth day after the passage of this article
by the Legislature, any person who does not possess a valid lead
abatement worker's license to work on a lead abatement project
who engages in such activity is in violation of this article.
(b) To qualify for a lead worker's license an individual
shall:
(1) Satisfactorily complete a state accredited training
course;
(2) Demonstrate to the satisfaction of the commissioner that
the applicant is familiar with and capable of complying fully
with all applicable requirements, procedures and standards of the
United States environmental protection agency, occupational
safety and health administration, department of housing and urban
development and the state bureau of public health and division of
commerce, labor and environmental protection covering any part of
a lead abatement project; and
(3) Meet the requirements otherwise set forth by the commissioner.
(c) Applicants for a lead abatement workers' license shall
submit an application and certificate to the bureau that show
satisfactory completion of an accredited training course for lead
abatement workers and provide documentation of receiving a
passing score on the required examination from a state accredited
examiner and shall pay the application fee to the bureau. The
commissioner may deny a license if there has been a failure to
comply with the application procedures or if the applicant fails
to satisfy the application criteria. Written notice of such
denial and an opportunity for reapplying shall be afforded to all
applicants.
§16-35-7. Lead abatement supervisor license required.
(a) Upon the ninetieth day after the passage of this article
by the Legislature, any person who does not possess a valid lead
abatement supervisor's license to supervise workers or control
workers on lead abatement project who engages in such activities
is in violation of this article.
(b) To qualify for a lead abatement supervisor's license an
applicant shall:
(1) Satisfactorily complete a state-accredited training
course for supervisors and receive a passing grade on an
examination administered by a state accredited examiner;
(2) Demonstrate to the satisfaction of the commissioner that
the applicant is capable of complying fully with all applicable
requirements, procedures and standards of the United States
environmental protection agency, occupational safety and health
administration, department of housing and urban development, and
the state bureau for public health and the divisions of commerce,
labor and environmental protection covering any part of a lead
abatement project; and
(3) Meet the requirements otherwise set forth by the
commissioner.
(c) Applicants for a lead abatement supervisor's license
shall submit an application and a certificate to the bureau that
show satisfactory completion of a state-accredited training
course for lead abatement supervisors and provide documentation
of receiving a passing score on the required examination from a
state-accredited examiner and shall pay the applicable fee to the
bureau. The commissioner may deny a license if there has been a
failure to comply with the application procedures or if the
applicant fails to satisfy the application criteria. Written
notice of such denial and an opportunity for reapplying shall be
afforded to all applicants.
§16-35-8. Lead abatement designer's license required.
(a) Upon the ninetieth day after the passage of this article by the Legislature, it shall be unlawful for any person who does
not possess a valid lead abatement designer license to specify
engineer controls, methods and work practices for a lead
abatement project.
(b) To qualify for a lead abatement designer's license an
applicant shall:
(1) Satisfactorily complete a state-accredited training
course for lead abatement designers and receive a passing grade
on an examination administered by a state-accredited examiner:
(2) Demonstrate to the satisfaction of the commissioner that
the applicant is capable of complying fully with all applicable
requirements, procedures and standards of the United States
environmental protection agency, occupational safety and health
administration, department of housing and urban development, and
the state bureau for public health and the divisions of commerce,
labor and environmental protection covering any part of a lead
abatement project; and
(3) Meet the requirements otherwise set forth by the
commissioner.
(c) Applicants for designer license shall submit to the
bureau an application and a certificate that shows satisfactory
completion of a state-accredited training course for lead
abatement designers and provide documentation of receiving a
passing score on the required examination from an accredited examiner and shall pay the applicable fee to the bureau. The
commissioner may deny a license if there has been a failure to
comply with the application procedures or if the applicant fails
to satisfy the application criteria. Written notice of such
denial and an opportunity for reapplying shall be afforded to all
applicants.
§16-35-9. Licensing of lead abatement contractors required.
(a) Upon the ninetieth day after the passage of this article
by the Legislature, it shall be unlawful for any person who does
not possess a valid lead abatement contractor's license to
contract with another person to abate lead hazards for lead
abatement projects.
(b) To qualify for a lead abatement contractor's license an
applicant shall:
(1) Demonstrate to the satisfaction of the commissioner that
the applicant is familiar with and is capable of complying fully
with all applicable requirements, procedures and standards of the
United States environmental protection agency, occupational
safety and health administration, department of housing and urban
development, the state bureau for public health and the divisions
of commerce, labor and environmental protection covering any part
of a lead abatement project; and
(2) Meet the requirements otherwise set forth by the commissioner.
(c) Applicants for a contractor's license shall submit to
the bureau an application and shall pay the applicable fee to the
bureau. The commissioner may deny a license if there has been a
failure to comply with the application procedures or if the
applicant fails to satisfy the application criteria. Written
notice of such denial and an opportunity for reapplying shall be
afforded to all applicants.
(d) Licensed lead abatement contractors shall:
(1) Ensure that each of the contractor's employees or agents
who will come in contact with lead or who will be responsible for
a lead abatement project are licensed as required by this
article;
(2) Ensure that each lead project is supervised by a
licensed lead abatement supervisor;
(3) Keep a record of each lead abatement project and make
the record available to the state bureau for public health and
the divisions of commerce, labor and environmental protection
upon request. Records required by this section shall be kept for
at least three years, and include:
(A) The name, address and license number of the individual
who supervised the lead abatement project and each employee or
agent who worked on the project:
(B) The location and design of the project if applicable, and the amount of lead containing material that was removed;
(C) The starting and completion date of each project and
summary of the procedures that were used to comply with all
federal and state standards;
(D) The name and address of each disposal site where lead
contaminated waste was deposited and the disposal site receipts;
and
(E) Maintain sample records of each contained work area of
lead abatement project until the project meets minimum clearance
standards established by the commissioner.
§16-35-10. Exemptions from notification and licensure.
Homeowners performing lead abatement or interim controls on
their single unit owner-occupied premises, are exempt from the
requirements of this article, unless the commissioner has issued
an order for the permanent elimination of lead-based paint
hazards on the premises.
§16-35-11. Special revenue account.
Fees and fines collected under this article shall be
deposited in a special revenue account established in the state
treasury to be used by the commissioner for purposes of the
implementation of this article.
§16-35-12. Notification of elevated blood lead levels.
Upon the ninetieth day after the passage of this article by the Legislature, any person, contractor or laboratory shall
notify the commissioner of medically confirmed elevated blood
lead levels in accordance with any rules proposed hereunder.
§16-35-13. Notification of lead abatement projects required.
Each owner or other person responsible for the operation of
a building, facility, residence or structure where a lead
abatement project is to occur shall notify the bureau in the time
specified by the commissioner prior to commencement of each lead
project and shall comply with all applicable state and federal
regulatory requirements for a lead project.
§16-35-14. Accreditation of lead training courses and examiners
required.
(a) A person or organization may apply for bureau
accreditation of its course on health and safety aspects of lead
abatement removal, enclosure and encapsulation by submitting a
full description of the curriculum and a written application on
forms prescribed by the bureau for public health.
(b) A person or organization may apply for bureau
accreditation as an examiner by submitting a full description of
the examination and a written application on forms prescribed by
the bureau.
§16-35-15. Reciprocity.
The commissioner may set standards for accepting lead licenses issued by other states. The commissioner may grant lead
licenses to individuals from other states if the other state has
requirements at least as stringent as those existing in this
state.
§16-35-16. Prohibiting employer discrimination notices to
employees.
(a) No employer may discharge, threaten or otherwise
discriminate or retaliate against an employee by changing the
employee's compensation, terms, conditions, location or
privileges of employment as the result of the employee acting on
his or her own volition, or a person while acting on behalf or
under the direction of the employee, makes a good faith report or
is about to report, verbally or in writing, to the employer or
appropriate authority, an instance of wrongdoing or violation; or
because the employee is requested or subpoenaed by an appropriate
authority to participate in an investigation, hearing or inquiry
or in a court action.
(b) An employer shall post notices and use other appropriate
means to notify employees and keep them informed of protection
and obligations set forth in the provisions of this section.
§16-35-17. Reprimands; suspension or revocation of license;
violations orders; hearings.
(a) The commissioner may reprimand, suspend or revoke the license of a worker, supervisor, risk assessor, inspector,
designer or contractor, if the licensee:
(1) Fraudulently or deceptively obtains or attempts to
obtain a license or knowingly aids another in such fraud or
deception;
(2) Fails at any time to meet the qualifications for a
license or to comply with the requirements of this article or any
applicable rules or regulations adopted by the commissioner;
(3) Fails to comply with applicable federal or state
standards for lead abatement projects;
(4) Employs or permits an individual not licensed as
required by this article to work on a lead abatement project: or
(5) Falsifies or attempts to falsify any document related to
a lead abatement project.
(b) The commissioner may investigate all suspected
violations of this article or any rule promulgated hereunder.
Upon the finding of a violation in connection with any lead
abatement project, the commissioner shall issue a cease and
desist order directing that all work on the project is halted
forthwith or a notice of violation directing compliance with this
article or any rule promulgated hereunder. Posting of cease and
desist orders or notices of violations on project sites shall
constitute adequate notice to the property owner and all persons
working on the lead abatement project. Where practicable, however, the commissioner may deliver a copy of such order by
certified mail, return receipt requested, to the property owner
and the contractor.
(c) When elevated blood-lead levels have been reported, the
commissioner may order the responsible person to reduce or abate
the lead hazard, specifying the date or conditions by which the
hazard must be reduced or abated.
(d) Hearings regarding violations of this article and any
rules promulgated hereunder shall be conducted in accordance with
the administrative procedures act of chapter twenty-nine-a of
this code.
§16-35-18. Penalties.
(a) The commissioner may impose a civil penalty of not less
than two hundred fifty dollars and not more than five thousand
dollars for each separate violation of this article or any
legislative rules proposed hereunder.
(b) Notwithstanding any other provision of this code to the
contrary, any person who violates any provision of this article
or any rule related hereto is guilty of a misdemeanor and, upon
conviction thereof, is fined not less than two hundred fifty
dollars, nor more than one thousand dollars.
(c) In any case where a person fails to halt work following
the issuance of a cease and desist order by the commissioner, upon a showing of actual notice thereof, the violation shall be
construed as being willful and there shall be assessed a civil
penalty of not less than ten thousand dollars nor more than
twenty-five thousand dollars for an initial violation, and not
less than twenty-five thousand dollars nor more than fifty
thousand dollars for each subsequent violation.
(d) In the absence of good cause, failure to pay a fine
imposed by the commissioner within ten days of receipt of
notification, constitutes a separate violation.
Note: The purpose of this bill is to provide for licensing
for persons engaged in lead abatement projects.
This article is new; therefore, strike-throughs and
underscoring have been omitted.