Senate Bill No. 524
(By Senators Bailey and Love)
____________
[Introduced February 19, 1996; 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 finding; definitions;
powers and duties of the commissioner for public health;
license categories; licensing of lead inspectors, risk
assessors, supervisors, designers, contractors, 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; hearings; and civil and criminal 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 and declares 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.
Childhood 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 young children. 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 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 should
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 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; or
(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 of building or rooms in a residential dwelling or unit that are regularly frequented (three hours a day
twice a week or greater) by children age six or under, including,
but not 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 is generally open to the public, including, but not limited
to, warehouses, office complexes, industrial facilities, air-
craft hangers, 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(s),
spaces, or other areas where lead abatement activities are being
performed, including decontamination structures. Contained work
area shall be separated from the 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 job or
responsibilities requiring a license and accredited training,
before a person may work or perform these defined
responsibilities in a lead abatement project.
(k) "Demolition" means the total destruction or removal of
a structure.
(l) "Elevated blood lead level for a child" means the amount
of lead circulating in a child'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 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 coatings
that contain lead equal to or greater than one-half percent 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
resulting from a lead abatement activity that meet the toxicity
characteristics as defined by state or federal standards.
(v) "Lead supervisor for target housing and child-occupied
buildings" 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 licensed by the bureau,
who conducts inspections to determine and report the existence,
nature, severity and location of lead-based paint in or on any
structure or site.
(y) "Lead abatement designer" means a person licensed by the
bureau, who designs lead abatement projects in target housing
with ten or more units or in child-occupied buildings.
(z) "Lead abatement project" means an activity 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 in
child-occupied building, target housing when ten or more units
are involved or when the commissioner deems it necessary.
(cc) "Lead worker for target housing and child-occupied
buildings" means a person licensed by the bureau, 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
is 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 deed,
title or responsibility of the 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 buildings" means any building that is generally
open to the public, including, but not limited to, museums,
airport terminals, hospitals, stores, restaurants, convention
centers. Public buildings also include office buildings and
other corporate facilities and government buildings that do 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 rules promulgated thereunder.
(b) To promulgate 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, to include, but
not be limited to, the required training, the prescription of
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.
(d) To order reduction or abatement of lead hazards, which
may include relocation of persons or families exposed to lead
hazards that will result in serious bodily harm.
§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 an
inspector on a lead abatement project.
(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 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, it shall be unlawful for any person
who does not possess a valid lead risk assessor's license to
evaluate or develop lead hazard assessment.
(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 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 for target housing and child-
occupied buildings 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 worker's license to
work in a target housing and child-occupied building lead
abatement project.
(b) To qualify for a target housing and child-occupied
building 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 target housing and child-occupied
building 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 for target housing and
child-occupied buildings license required.
(a) Upon the ninetieth day after the passage of this article
by the Legislature, it is unlawful for any person who does not
possess a valid lead abatement supervisor's license to supervise
workers or control workers on a target housing and child-occupied
buildings lead abatement project.
(b) To qualify for a target housing and child-occupied
building 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 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 target housing and child-occupied
building 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 in target housing with ten or more units and in
child-occupied buildings.
(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 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 target
housing and child-occupied buildings.
(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 applicatiuon 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 contract 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) Sample records maintained of each contained work area of
a lead abatement project until the project meets minimum
clearance standards established by the commissioner before
allowing reoccupancy.
§16-35-10. Exemptions from notification and licensure.
Homeowners, removing and handling lead on their own owner-
occupied premises, are exempt from the requirements of this
article.
§16-35-11. Special revenue account.
Fees and fines collected under this article and any rules
promulgated hereunder shall be deposited in a special revenue account established in the state treasury to be used by the
commissioner for purposes to 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 this article or any rules
promulgated 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 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 that other state has
as stringent requirements as West Virginia.
§16-35-16. Prohibiting employer discriminations notice 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 because the employee, acting on his own
volition, or a person 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 held by an appropriate authority or in 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 knowingly 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. Posting of cease and desist orders on project sites
shall constitute notice of its contents 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, and may include relocation of
any person or family when a lead hazard poses serious bodily
harm.
(d) Hearings regarding violations of this article and any
rules promulgated hereunder shall be conducted in accordance with
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 rules
promulgated hereunder.
(b) Notwithstanding any other provision of this code, any
person who violates any provision of this article or any rule or
regulation related hereto is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not less than two hundred
fifty dollars.
(c) In any case where a person fails to halt work following
the issuance of a cease and desist order by the commissioner, the
violation shall be presumed to be willful and shall be assessed
a civil penalty by the commissioner 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) 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.