H. B. 2738


(By Delegate Campbell, By Request)
[Introduced March 26, 1997; referred to the
Committee on Government Organization.]




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 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.


NOTEote: 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.