H. B. 4034
(By Delegates Linch, Hunt, Mahan,
Staton, Tomblin, Riggs and Thomas)
[Introduced January 20, 1998; referred to the Committee
on the Judiciary then Finance.]
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, all
relating to the regulation of lead abatement, assessment,
and inspection activities and establishing licensing
requirements for lead inspectors, risk assessors,
supervisors, designers, contractors and workers;
establishing legislative findings; providing definitions;
establishing the powers and duties of the director of the
division of health regarding the regulation on lead
abatement activities; allowing the division of health to
establish fees to administer the program; creating lead
abatement, inspector and assessor license requirements;
providing license application issuance, denial and
revocation procedures; providing lead contractor's duties
and responsibilities while conducting lead abatement
projects; providing exemptions from the notification and licensure requirements of this article; providing for
notification of elevated blood-lead levels; requiring
reporting of lead abatement projects; establishing
accreditation requirements for lead abatement instructors
and training programs; providing for suspension or
revocations of licenses and procedures therefore;
establishing a special revenue account to administer the
program; providing civil penalties and fees for violation
of the certain provisions of this article; and creating a
misdemeanor offense for violations of this article.
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. LEAD ABATEMENT
§16-35-1. Short title.
This article may be cited as the West Virginia "Lead
Abatement Act."
§16-35-2. Legislative findings.
(a) The Legislature hereby finds and declares that:
(1) Lead is a toxic substance and harmful to the citizens
of this state;
(2) Lead poisoning is a devastating health hazard,
particularly to young children, and results in serious long term health effects;
(3) Children exposed to even low levels of lead exhibit
learning disabilities, decreased growth, hyperactivity, impaired
hearing, and neurological damage;
(4) Workers and others who come into contact with lead when
removing or remediating lead based materials are also at risk of
lead poisoning;
(5) Exposure occurs from contact with materials containing
lead, including but not limited to lead-based paint chips, lead
dust, and lead-contaminated soil;
(6) The most significant source of exposure is lead-based
paint, particularly in houses built prior to one thousand nine
hundred seventy-eight;
(7) The danger posed by lead-based paint hazards can be
controlled by abatement or interim controls that limit exposure
to lead-based paint hazards;
(8) The public health and safety of this state will be
better protected when all persons who handle lead contaminated
substances are throughly trained and knowledgeable regarding
safe methods of handling and disposing of such materials.
(b) Therefore, it is the purpose of this article to protect
the health of the children of the state and those who undertake
remediation of the lead health hazard by establishing guidelines
for the assessment and removal of lead hazards from homes and
other buildings where children are frequently present and exposed to the danger of lead poisoning.
§16-35-3. Definitions.
(1) "Abatement" means any measure or set of measures
designed to permanently eliminate lead-based paint hazards.
Abatement includes, but is not limited to:
(A) The removal of lead-based paint and lead-contaminated
dust, the permanent enclosure or encapsulation of lead-based
paint, the replacement of lead-painted surfaces or fixtures, and
the removal or covering of lead-contaminated soil;
(B) All preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures;
(C) Projects for which there is a written contract to
permanently eliminate lead-based paint hazards from a dwelling
unit or child-occupied building;
(D) Projects involving the permanent elimination of lead-
based paint or lead-contaminated soil; and
(E) Projects involving the permanent elimination of lead-
based paint hazards that are conducted in response to federal,
state or local abatement orders.
(2) "Child lead poisoning" means that the amount of lead
circulating in the blood stream of children is at or exceeds the
level defined by the United States center for disease control.
(3) "Child-occupied building" means any of the following
structures built before one thousand nine hundred seventy-eight:
public or private buildings, or portions thereof, or a room in a residential dwelling or unit, any of which structures are
currently visited, or intended to be visited, three hours a day
twice a week or more often by a child age six or under,
including, but not limited to, day care centers, kindergarten
classrooms, schools, camps and recreational facilities.
(4) "Contained work area" means a designated room or rooms,
spaces, or other areas, including a decontamination structure,
where lead abatement activities are performed, separated from
the uncontaminated environment in accordance with OSHA
standards.
(5) "Discipline" means any one of the following: lead
abatement contractor, lead abatement supervisor, lead inspector,
lead risk assessor, lead abatement worker, or lead abatement
project designer.
(6) "Director" means the director of the West Virginia
division of health or his or her representative.
(7) "Elevated blood-lead level" means a concentration of
lead in the blood stream as defined by the United States center
for disease control.
(8) "Industrial facility" means any factory, mill, plant,
refinery, warehouse, building or complex of buildings, including
the land on which it is located.
(9) "Inspection" means a surface by surface investigation
to determine the presence of lead-based paint or lead hazards
and the provision of a report explaining the results of the investigation.
(10) "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.
(11) "Lead" means elemental lead and all inorganic and
organic lead compounds.
(12) "Lead abatement contractor" means any person who
contracts to conduct any lead abatement activity.
(13) "Lead abatement designer" means an individual who
designs lead abatement projects.
(14) "Lead abatement project" means an activity in target
housing or child-occupied buildings intended to permanently
remove or encapsulate lead-based paint, lead-containing dust,
lead-containing soil or other lead-containing materials and
decontamination of an area, but does not include interim
controls which do not permanently eliminate lead hazards.
(15) "Lead abatement worker" means an individual who is
employed by a lead abatement contractor for a lead abatement
project.
(16) "Lead-based paint" means paint or other surface
coatings that contains lead at a level defined by the director by legislative rule as provided in section four of this article.
(17) "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
effects on human health.
(18) "Lead inspector" means an individual who conducts
inspections to determine and report the existence, nature,
severity and location of lead-based paint or lead hazards.
(19) "Lead risk assessment" means an investigation of the
potential risk to human health or the environment posed by lead
abatement projects or lead hazards, including but not limited to
considerations of toxicity, concentration, form, mobility and
potential of exposure.
(20) "Lead risk assessor" means an individual who is
responsible for or conducts lead risk assessments and
establishes priorities for a lead abatement project.
(21) "OSHA" means the United States Occupational Safety and
Health Administration.
(22) "Owner-occupied housing" means a detached single unit
residence owned by the individual living within the unit.
(23) "Person" means any individual, partnership, firm,
society, association, trust, corporation, other business entity
or any agency, unit, or instrumentality of federal, state or local government.
(24) "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.
§16-35-4. Powers and duties of the director.
The director shall administer and enforce this article, and
has the following powers and duties:
(a) To propose rules for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of
this code, necessary to carry out the requirements of this
article, including but not limited to abatement personnel
training guidelines, procedures for the issuance and renewal of
lead discipline licenses, establishment of all fees necessary to
pay for the implementation and enforcement of this program, and
the regulation of lead abatement projects;
(b) To issue, suspend and revoke lead discipline licenses,
regulate lead abatement projects, and assess fees and civil
penalties pursuant to this article and the rules promulgated
hereunder;
(c) To promulgate any emergency rules necessary to gain
federal approval of the state lead abatement program in
accordance with section three, article fifteen, chapter twenty-
nine-a of this code;
(d) To accredit training providers, training courses, examiners, examinations, and grading systems developed for
licensing disciplines pursuant to this article;
(e) To order reduction or abatement of identified lead
hazards when they may result in child lead poisoning; and
(f) To develop a public awareness campaign on the dangers
of lead poisoning and to promote public education of the
requirements of this act.
§16-35-5. Lead discipline license required.
(a) It is unlawful for any individual to carry out any lead
risk assessment, inspection or abatement activity for which he
or she does not hold an appropriate lead discipline license.
(b) To qualify for a lead discipline license an applicant
shall:
(1) Satisfactorily complete a state-accredited training
course for a lead discipline and receive a passing grade on an
examination administered by a state-accredited examiner; and
(2) Meet the requirements set forth by the director in
legislative rule.
(c) Applicants for a lead discipline license shall submit
to the division an application and certificate that show
satisfactory completion of a training course for a lead
discipline and pay the applicable fee to the division.
(d) The director may deny a license if the applicant fails
to comply with the application procedures or to satisfy the
licensure criteria or to pay the fee. The director shall provide written notice of such denial and an opportunity for
reapplication.
(e) The director may grant lead discipline licenses to
individuals licensed or certified in another jurisdiction if its
requirements are at least as stringent as West Virginia's
requirements.
§16-35-6. Lead abatement contractor's duties.
A lead abatement contractor shall:
(a) Ensure that each of his or her employees or agents who
will come in contact with lead or who will be responsible for a
lead abatement project is licensed as required by this article;
(b) Ensure that each lead abatement project is supervised
by a licensed lead abatement supervisor;
(c) Maintain sampling records for each contained work area
of a lead abatement project until it meets the minimum clearance
standards established by the director before allowing
reoccupancy; and
(d) Keep a record of each lead abatement project and make
the record available to the division and the divisions of
commerce, labor, and environmental protection upon request.
Records required by this subsection shall be kept for at least
three years and shall include at a minimum:
(1) 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;
(2) The location and design of the project, if applicable,
and the amount of lead-containing material that was removed;
(3) The starting and completion date of each project and a
summary of the procedures that were used to comply with all
federal and state standards; and
(4) The name and address of each disposal site where lead-
contaminated waste was deposited and the disposal site receipts.
§16-35-7. Exemptions from notification and licensure.
(a) Homeowners performing lead abatement or interim
abatement controls on their single unit owner-occupied housing
are exempt from the requirements of this article.
(b) Abatement does not include renovation, remodeling,
landscaping or other activities, when the purpose of such
activities are not intended to permanently eliminate lead based
paint hazards, but, instead, are designed to repair, restore or
remodel a given structure or dwelling, even though these
activities may incidentally result in a reduction or elimination
of lead-based paint hazards. Abatement also does not include
interim controls, operations and maintenance activities, or
other measures and activities designed to temporarily, but not
permanently reduce lead-based paint hazards.
(c) The provisions of this article do not apply to lead
hazard reduction activities or to persons performing such
activities when such activities are performed wholly within an
industrial facility and are performed by persons who are subject to the training requirements of OSHA:
Provided that, the
provisions of this article do apply to any child occupied
building or area such as a child day care center located at a
industrial facility.
§16-35-8. Notification of elevated blood-lead levels required.
The director may, by legislative rule, establish
requirements for laboratories and lead abatement contractors for
mandatory reporting of any persons medically confirmed elevated
blood-lead level.
§16-35-9. 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 division in the
time specified by the director prior to commencement of each
lead abatement project, and comply with all applicable state and
federal regulatory requirements for a lead abatement project.
§16-35-10. Accreditation of lead abatement training courses.
(a) The director shall propose legislative rules
establishing criteria and procedures for certification of
training course curricula and examinations that shall ensure the
qualifications of applications for licensure or certification as
required in this article. To qualify for certification, a
training course shall contain a combination of class
instruction, practical application, and public health procedures
of a length and content that, to the satisfaction of the director, ensure adequate training for the level and type of
responsibility for each named certification category.
(b) All courses certified under this section shall be
conducted by instructors whose training and experience is
determined by the director to be appropriate for the subject
matter being taught and the level of licensure category for
which the course is designed. An approved initial course for
any category of person engaged in lead hazard reduction
activities shall include all of the following, but not be
limited to:
(1) Worker health and safety instruction no less stringent
that required under applicable federal law and regulations.
(2) Instruction in the importance of safe work practices in
promoting public health, and the importance of proper
decontamination procedures in eliminating the risk of
contaminating individual workers' home environment.
(3) Instruction in the workers' rights and obligations
under federal and state law.
(c) In addition to developing criteria for classroom
instruction pursuant to this section, the director shall develop
minimum criteria for hands-on training or on-site instruction.
The criteria for certification of training courses shall include
minimum trainee competency and proficiency requirements,
evidenced through both written examinations and minimum skills
demonstration examinations. Upon successful completion of an approved retraining course, the trainee shall be issued a
certificate by the director or the accredited training provider
under the authority of the director.
(e) All training courses must be recertified annually by
the director. The director may establish by legislative rule,
reasonable application fees for the accreditation of training
courses and discipline examiners, and establish criteria for
renewals of training course certification
.
§16-35-11. Suspension or revocation of license; violations;
hearings.
(a) The director may suspend or revoke a lead abatement
discipline license 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 the
license or to comply with the requirements of this article or
any applicable legislative rules;
(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 director 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 director 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 notice of violations on project sites shall constitute
notice of its contents to the property owner and all persons
working on the lead abatement project. The director may also
deliver a copy of such order or notice by certified mail, return
receipt requested, to the property owner and to the contractor.
(c) Hearings regarding violations of this article and any
rules promulgated hereunder shall be conducted in accordance
with the division's rules of procedure for contested case
hearings and declaratory rulings and the administrative
procedures act of chapter twenty-nine-a of this code.
§16-35-12. Special revenue account.
The director shall deposit all monies collected as fees and
civil penalties under the provisions of this article a special
account in the state treasury to be known as the "lead abatement
account." Expenditures from said fund shall be for the purposes
set forth in this article and are not authorized from
collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and
upon the fulfillment of the provisions set forth in article two,
chapter five-a of this code: Provided, that for the fiscal year
ending the thirtieth day of June, one thousand nine hundred ninety-nine, expenditures are authorized from collections rather
than pursuant to an appropriation of the Legislature.
§16-35-13. Penalties and fines.
(a) The director 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 rules
promulgated hereunder. In any case where a person fails to halt
work following the issuance of a cease and desist order by the
director, the violation shall be presumed to be willful and the
person shall be assessed a civil penalty by the director 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. Failure to pay a civil
penalty imposed by the director within thirty days of receipt of
notification constitutes a separate violation.
(b) Notwithstanding any other provision of this code, any
person who violates any provision of this article or any rule
promulgated hereunder is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than two hundred
fifty dollars, nor more than fifty thousand dollars, or confined
in the county or regional jail not more than one year, or both
fined and confined.
Note: The purpose of this bill is to provide for licensing
for persons engaged in lead abatement projects and for the
regulation of such projects.
This article is new; therefore, strike-throughs and underscoring have been omitted.
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