ENGROSSED
Senate Bill No. 502
(By Senator Brackenrich)
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[Introduced March 22, 1993; referred to the Committee
on Energy, Industry and Mining.]
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A BILL to amend and reenact sections two, three, four, five, six,
seven, eight, nine, ten, eleven, twelve, thirteen, fifteen
and sixteen, article thirty-two, chapter sixteen of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended; and to further amend said article by adding thereto
three new sections, designated sections nine-a, nine-b and
nine-c, all relating to definitions; powers and duties of
the director of health; asbestos management planner's
license required; asbestos abatement project designer's
license required; asbestos contractor's license required;
asbestos abatement supervisor's license required; asbestos
inspector's license required; asbestos worker's license
required; asbestos analytical laboratory license required;
asbestos clearance air monitor license required; resilient
floor covering worker license required; special revenue
account; notification; waivers; exemptions; approval of
asbestos abatement courses; reciprocity; reprimands;
suspensions or revocation of license; violations; orders;
hearings; and penalties.
Be it enacted by the Legislature of West Virginia:
That sections two, three, four, five, six, seven, eight,
nine, ten, eleven, twelve, thirteen, fifteen and sixteen, article
thirty-two, chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted; and that said article be further amended by adding
thereto three new sections, designated sections nine-a, nine-b
and nine-c, all to read as follows:
ARTICLE 32. ASBESTOS ABATEMENT.
§16-32-2. Definitions.
(a) "Asbestos" means the asbestiform varieties of chrysolite
(serpentine), crocidolite (riebeckite), amosite (cummintonite-
grunerite), anthophyllite, tremolite and actinolite.
(b) "Asbestos analytical laboratory" means a facility or
place which analyzes asbestos bulk samples or asbestos air
samples.
(c) "Asbestos abatement project designer" means a person who
specifies engineering controls, methods and work practices to be
used during asbestos abatement projects.
(d) "Asbestos abatement supervisor" means a person
responsible for direction of asbestos abatement projects.
(e) "Asbestos clearance air monitor" means a person who
performs air monitoring to confirm clearance levels to establishthat an area is safe for reoccupancy after an asbestos abatement
project.
(f) "Asbestos-containing material" means any material or
product which contains more than one percent asbestos by weight.
(g) "Asbestos contractor" means a person who enters into
contract for an asbestos abatement project.
(h) "Asbestos inspector" means a person employed to inspect
for the presence of asbestos containing materials, evaluate the
condition of such materials and collect samples for asbestos
content confirmation.
(i) "Asbestos management planner" means a person employed to
interpret survey results, make hazard assessment, evaluation, and
selection of control options or develop an operation and
maintenance plan.
(j) "Asbestos abatement project" means an activity involving
the inspection for, repair, removal, enclosure or encapsulation
of asbestos-containing material.
(k) "Asbestos worker" means a person who works on an
asbestos abatement project.
(l) "Contained work area" means designated rooms, spaces or
other areas where asbestos abatement activities are being
performed, including decontamination structures. The contained
work area shall be separated from the uncontaminated environment
by polyethylene sheeting or other materials used in conjunction
with the existing floors, ceilings and walls of the structure.
(m) "Director" means the director of the division of healthor the director's duly authorized representative.
(n) "Division" means the division of health of the
department of health and human resources.
(o) "Encapsulate" means the application of any material onto
any asbestos containing material to bridge or penetrate the
material to prevent fiber release.
(p) "Enclosure" means the permanent confinement of friable
asbestos containing materials with an airtight barrier in an area
not used or designed as an air plenum.
(q) "Friable" means material which is capable of being
crumbled, pulverized or reduced to powder by hand pressure of
which under normal use or maintenance emits or can be expected to
emit asbestos fibers into the air.
(r) "Good faith report" means a report of conduct defined in
this article as wrongdoing or waste which is made without malice
or consideration of personal benefit and which the person making
the report has reasonable cause to believe is true.
(s) "License" means a document authorizing a person to
perform certain specific asbestos related work activities.
(t) "Person" means a corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association or any
individual or entity.
(u) "Resilient floor covering worker" means a person who is
employed to remove resilient floor covering in single family
dwellings.
(v) "Waste" means an employer's conduct or omissions whichresult in substantial abuse, misuse, destruction or loss of funds
or resources belonging to or derived from federal, state or
political subdivision sources.
(w) "Wrongdoing" means a violation which is not of a merely
technical or minimal nature of a federal or state statute or
regulation, of a political subdivision ordinance or regulation or
of a code of conduct or ethics designed to protect the interest
of the public or the employer.
§16-32-3. Powers and duties of the director of health.
The director of health shall administer and enforce this
article. The director has the following powers and duties:
(a) To issue licenses and assess fees pursuant to this
article and the rules promulgated thereunder.
(b) To promulgate rules necessary to carry out the
requirements of this article in accordance with the provisions of
chapter twenty-nine-a of this code, to include, but not limited
to, the required training, the prescription of fees and
procedures for the issuance and renewal of licenses.
(c) To approve the training courses administered to
licensure applicants.
§16-32-4. Asbestos management planner's license required.
(a) It is unlawful for an individual who does not possess a
valid asbestos management planner's license to design a
building's or facility's asbestos management plan.
(b) To qualify for an asbestos management planner's license,
an applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos
management planners;
(2) Possess a valid asbestos inspector's license;
(3) Demonstrate to the satisfaction of the director 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, the United States
occupational safety and health administration and the state
departments of health and human resources and commerce, labor and
environmental resources covering any part of an asbestos
abatement project; and
(4) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos management planner's license
shall submit an application and a certificate that shows
satisfactory completion of the United States environmental
protection agency training course for asbestos management
planners to the division and shall pay the applicable fee to the
division. The director 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 reapplication shall
be afforded to all applicants.
§16-32-5. Asbestos abatement project designer's license
required.
(a) It is unlawful for any person who does not possess a
valid asbestos abatement project designer's license to specify
engineering controls, methods and work practices under an
asbestos abatement project contract to another person.
(b) To qualify for an asbestos abatement project designer's
license, an applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for abatement project
designers;
(2) Demonstrate to the satisfaction of the director 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, the United States
occupational safety and health administration and the state
departments of health and human resources and commerce, labor and
environmental resources covering any part of an asbestos
abatement project; and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos abatement project designer's
license shall submit an application and a certificate that shows
satisfactory completion of the United States environmental
protection agency training course for asbestos abatement project
designers to the division on the required form and shall pay the
applicable fee to the division. The director may deny a license
if there has been a failure to comply with the applicationprocedure or if the applicant fails to satisfy the application
criteria. Written notice of denial and an opportunity for
reapplication shall be afforded to all applicants.
§16-32-6. Asbestos contractor's license required.
(a) It is unlawful for any person who does not possess a
valid asbestos contractor's license to contract with another
person for an asbestos abatement project.
(b) To qualify for an asbestos contractor's license, an
applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos
supervisors;
(2) Demonstrate to the satisfaction of the director that the
applicant and the applicant's employees or agents are familiar
with and are capable of complying fully with all applicable
requirements, procedures and standards of the United States
environmental protection agency, the United States occupational
safety and health administration and the state departments of
health and human resources and commerce, labor and environmental
resources covering any part of an asbestos abatement project; and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos contractor's license shall
submit an application and a certificate that shows satisfactory
completion of the United States environment protection agency
asbestos training course for supervisors to the division on therequired form and shall pay the applicable fee to the division.
The director may deny a license if there has been a failure to
comply with the application procedure or if the applicant fails
to satisfy the application criteria. Written notice of denial
and an opportunity for reapplication shall be afforded to all
applicants.
(d) Licensed asbestos contractors shall carry out the
following duties:
(1) Ensure that each of the contractor's employees or agents
who will come into contact with asbestos or who will be
responsible for an asbestos abatement project is licensed as
required by this article;
(2) Ensure that each asbestos project is supervised by a
licensed asbestos abatement supervisor;
(3) Keep a record of each asbestos abatement project and
make the record available to the state departments of health and
human resources and commerce, labor and environmental resources
upon request. Records required by this section shall be kept for
at least thirty years. The records shall include:
(A) The name, address and license number of the individual
who supervised the asbestos abatement project and each employee
or agent who worked on the project;
(B) The location and design of the project and the amount of
asbestos-containing material that was removed;
(C) The starting and completion dates of each project and a
summary of the procedures that were used to comply with allfederal and state standards;
(D) The name and address of each asbestos disposal site
where waste containing asbestos was deposited and the disposal
site receipts; and
(E) Ensure that each contained work area of an asbestos
abatement project meets minimum clearance standards established
by the director before allowing reoccupancy.
(e) The following situations and relationships involving
asbestos abatement contractors are prohibited:
(1) A financial or proprietary interest of the contractor in
a laboratory utilized by the contractor to perform asbestos
sample analysis related to asbestos abatement projects performed
or contracted for by the contractor;
(2) An employer-employee relationship between the contractor
and an asbestos clearance air monitor for an asbestos abatement
project performed or contracted for by the contractor; and
(3) A financial or proprietary interest of the contractor in
the firm which performs asbestos clearance air monitoring for an
asbestos abatement project performed or contracted for by the
contractor.
(f) Persons who contract to remove resilient floor covering
materials in single-family dwellings are not required to be
licensed as asbestos contractors:
Provided, That the individuals
engaged in removal shall meet the requirements of this article
and any rules promulgated hereunder relating to resilient floor
covering removal.
§16-32-7. Asbestos abatement supervisor's license required.
(a) It is unlawful for an individual who does not possess a
valid asbestos abatement supervisor's license to direct an
asbestos abatement project.
(b) To qualify for an asbestos abatement supervisor's
license, an applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos abatement
supervisors;
(2) Demonstrate to the satisfaction of the director 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, United States
occupational safety and health administration and the state
departments of health and human resources and commerce, labor and
environmental resources covering any part of an asbestos
abatement project; and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos abatement supervisor's
license shall submit an application and a certificate that shows
satisfactory completion of the United States environmental
protection agency training course for asbestos abatement
supervisors to the division and shall pay the applicable fee to
the division. The director may deny a license if there has been
a failure to comply with the application procedures or if theapplicant fails to satisfy the application criteria. Written
notice of such denial and an opportunity for reapplication shall
be afforded to all applicants.
§16-32-8. Asbestos inspector's license required.
(a) It is unlawful for an individual who does not possess a
valid asbestos inspector's license to work as an asbestos
inspector on an asbestos abatement project.
(b) To qualify for an asbestos inspector's license, an
applicant shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos
inspectors;
(2) Demonstrate to the satisfaction of the director 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, United States
occupational safety and health administration and the state
departments of health and human resources and commerce, labor and
environmental resources covering any part of an asbestos
abatement project; and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos inspector's license shall
submit an application and a certificate that shows satisfactory
completion of the United States environmental protection agency
training course for asbestos inspectors to the division and shallpay the applicable fee to the division. The director 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 reapplication shall be afforded to all
applicants.
§16-32-9. Asbestos worker's license required.
(a) It is unlawful for an individual who does not possess a
valid asbestos worker's license to work as an asbestos worker on
an asbestos abatement project.
(b) To qualify for an asbestos worker's license an
individual shall:
(1) Satisfactorily complete a United States environmental
protection agency approved training course for asbestos workers;
(2) Demonstrate to the satisfaction of the director 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, the United States
occupational safety and health administration and the state
departments of health and human resources and commerce, labor and
environmental resources covering any part of an asbestos
abatement project; and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos worker's license shall submit
an application and a certificate that shows satisfactorycompletion of the United States environmental protection agency
training course for asbestos workers to the division and shall
pay the applicable fee to the division. The director 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 reapplication shall be afforded to all
applicants.
§16-32-9a. Asbestos analytical laboratory license required.
(a) After the first day of January, one thousand nine
hundred ninety-four, it shall be unlawful for any laboratory that
does not possess a valid asbestos analytical laboratory license
to analyze asbestos bulk samples or asbestos air monitoring
samples.
(b) To qualify for an asbestos analytical laboratory
license, an applicant shall:
(1) Demonstrate to the satisfaction of the director 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, the United States
occupational safety and health administration and the state
departments of health and human resources and commerce, labor and
environmental resources covering analysis of asbestos bulk
samples or air monitoring samples; and
(2) Meet the requirements otherwise set forth by the
director.
(c) Applicants for an asbestos analytical laboratory license
shall submit an application to the division and shall pay the
applicable fee to the division. The director may deny a license
if there has been a failure to comply with the application
procedure or if the applicant fails to satisfy the application
criteria. Written notice of denial and an opportunity for
reapplication shall be afforded to all applicants.
§16-32-9b. Asbestos clearance air monitor license required.
(a) After the first day of January, one thousand nine
hundred ninety-four, it shall be unlawful for any individual who
does not possess a valid asbestos clearance air monitor license
to sample asbestos abatement project areas for clearance.
(b) To qualify for an asbestos clearance air monitor
license, an applicant shall:
(1) Satisfactorily complete a course approved by the
director for asbestos clearance air monitors;
(2) Demonstrate to the satisfaction of the director 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, the United States
occupational safety and health administration and the state
departments of health and human resources and commerce, labor and
environmental resources covering final air clearances for
asbestos abatement projects; and
(3) Meet the requirements otherwise set forth by the
director.
(c) Applicants shall submit an application and a certificate
that shows satisfactory completion of a course approved by the
director for asbestos air clearance monitors to the division and
shall pay the applicable fee to the division. The director may
deny a license if there has been a failure to comply with the
application procedure or if the applicant fails to satisfy the
application criteria. Written notice of such denial and an
opportunity for reapplication shall be afforded to all
applicants.
§16-32-9c. Resilient floor covering worker license required.
(a) After the first day of January, one thousand nine
hundred ninety-four, it shall be unlawful for an individual who
does not possess a valid resilient floor covering worker's
license to be employed as a resilient floor covering worker.
(b) To qualify for a resilient floor covering worker's
license an individual shall:
(1) Satisfactorily complete a training course approved by
the director for resilient floor covering workers;
(2) Demonstrate to the satisfaction of the director that the
applicant is familiar with and is capable of complying fully with
all applicable requirements, procedures and standards of the
United States occupational safety and health administration and
the state departments of health and human resources and commerce,
labor and environmental resources covering resilient floor
covering removal; and
(3) Meet the requirements otherwise set forth by thedirector.
(c) Applicants for a resilient floor covering worker's
license shall submit an application and a certificate that shows
satisfactory completion of a training course approved by the
director for resilient floor covering workers to the division and
shall pay the applicable fee to the division. The director 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 denial and an
opportunity for reapplication shall be afforded to all
applicants.
§16-32-10. Special revenue account.
Fees and fines collected under this article and any rules
promulgated hereunder shall be deposited in a special revenue
account in the state treasury to be used by the director for
purposes related to the implementation of of this article.
§16-32-11. Notification; waivers; exemptions.
(a) Each owner or other person responsible for the operation
of a building or facility where an asbestos abatement project is
to occur shall notify the division at least ten working days
prior to commencement of each asbestos abatement project and
shall comply with other applicable state and federal legal and
regulatory notification requirements for asbestos abatement
projects.
(b) In an emergency that results from a sudden unexpected
event that is not a planned renovation or demolition, thedirector may waive the requirement of ten working days prior
notification, but in all cases notification shall be made to the
division after the emergency within the specified time required
by the director.
(c) Asbestos abatement projects involving less than one
hundred sixty square feet or two hundred sixty linear feet of
asbestos containing material are exempt from the prior
notification requirement, unless the project takes place in a
school for any of grades kindergarten through twelve. A summary
of such projects shall be submitted to the division within a
specified time as required by the director.
(d) Persons who remove resilient floor covering materials in
single-family dwellings are exempt from notification
requirements.
§16-32-12. Approval of asbestos abatement courses.
A person or organization may apply for department and United
States environmental protection agency approval of a course on
the health and safety aspects of asbestos abatement, removal,
enclosure and encapsulation, by submitting a full description of
the curriculum and a written application on forms prescribed by
the department.
§16-32-13. Reciprocity.
The director may set standards for accepting licenses issued
by other states. The director may grant licenses to individuals
from other states if that other state has as stringent licensing
requirements as West Virginia.
§16-32-15. Reprimands; suspension or revocation of license;
violations; orders; hearings.
(a) The director may reprimand, suspend or revoke the
license of an asbestos analytical laboratory, clearance air
monitor, contractor, inspector, management planner or worker, or
of an asbestos abatement project designer or supervisor, or of a
resilient floor covering worker, 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 director;
(3) Fails to meet applicable federal or state standards for
asbestos abatement projects; or
(4) Employs or permits an individual not licensed as
required by this article to work on an asbestos abatement
project.
(b) The director may investigate all suspected violations of
this article or any rules promulgated hereunder. Upon the
finding of a violation in connection with any asbestos abatement
project, the director shall issue a cease and desist order
directing that all work on the project be halted forthwith.
Posting of the cease and desist order on the project site shall
constitute notice of its contents to the property owner and all
persons working on the asbestos abatement project. Wherepracticable, however, the director shall deliver a copy of such
order 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 administrative procedures act of chapter twenty-nine-a of
this code.
§16-32-16. Penalties.
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.
Notwithstanding any other provision of this code, any person
who violates any provision of this article or any rule or
regulation related hereto shall be guilty of a misdemeanor.
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 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.