H. B. 4034
(By Delegates Linch, Hunt, Mahan, Staton,
Tomblin, Riggs and Thomas)
[Passed March 14, 1998; in effect ninety days from passage.]
AN ACT 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 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; authorizing the establishment of fees;
creating lead abatement, inspector and assessor license
requirements; providing license application issuance, denial
and revocation procedures; providing lead contractor's
duties and responsibilities; providing exemptions from the
notification and licensure requirements; 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
§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
(2) Lead poisoning is a devastating health hazard,
particularly to young children, and results in serious long-term
(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
(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; and
(8) The public health and safety of this state will be
better protected when all persons who handle lead-contaminated
substances are thoroughly 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.
(a) "Abatement" means any measure or set of measures
designed to permanently eliminate lead-based paint hazards.
Abatement includes, but is not limited to:
(1) 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;
(2) All preparation, cleanup, disposal, and post-abatement
clearance testing activities associated with such measures;
(3) Projects for which there is a written contract to
permanently eliminate lead-based paint hazards from a dwelling
unit or child-occupied building;
(4) Projects involving the permanent elimination of lead- based paint or lead-contaminated soil; and
(5) Projects involving the permanent elimination of lead- based paint hazards that are conducted in response to federal,
state or local abatement orders.
(b) "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.
(c) "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.
(d) "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.
(e) "Discipline" means any one of the following: lead abatement contractor, lead abatement supervisor, lead inspector,
lead risk assessor, lead abatement worker, or lead abatement
(f) "Director" means the director of the West Virginia
division of health or his or her representative.
(g) "Elevated blood-lead level" means a concentration of
lead in the blood stream as defined by the United States center
for disease control.
(h) "Industrial facility" means any factory, mill, plant,
refinery, warehouse, building or complex of buildings or other
industrial structures including the land on which it is located.
(i) "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
(j) "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
(k) "Lead" means elemental lead and all inorganic and
organic lead compounds.
(l) "Lead abatement contractor" means any person who
contracts to conduct any lead abatement activity.
(m) "Lead abatement designer" means an individual who designs lead abatement projects.
(n) "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.
(o) "Lead abatement worker" means an individual who is
employed by a lead abatement contractor for a lead abatement
(p) "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.
(q) "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
(r) "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.
(s) "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.
(t) "Lead risk assessor" means an individual who is
responsible for or conducts lead risk assessments and establishes
priorities for a lead abatement project.
(u) "Lead supervisor" means a person employed by a lead
abatement contractor to supervise workers on a lead abatement
(v) "OSHA" means the United States Occupational Safety and
(w) "Owner-occupied housing" means a detached single unit
residence owned by the individual living within the unit.
(x) "Person" means any individual, partnership, firm,
society, association, trust, corporation, other business entity
or any agency, unit, or instrumentality of federal, state or
(y) "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:
(1) 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;
(2) 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
(3) 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;
(4) To accredit training providers, training courses,
examiners, examinations, and grading systems developed for
licensing disciplines pursuant to this article;
(5) To order reduction or abatement of identified lead
hazards when they may result in child lead poisoning; and
(6) To develop a public awareness campaign on the dangers of
lead poisoning and to promote public education of the
requirements of this article.
§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
(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
(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
(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
§16-35-6. Lead abatement contractor's duties.
A lead abatement contractor shall:
(1) 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;
(2) Ensure that each lead abatement project is supervised by
a licensed lead abatement supervisor;
(3) 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
(4) 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:
(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 a
summary of the procedures that were used to comply with all
federal and state standards; and
(D) 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 or on
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 an
§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
§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
than 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; and
(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.
(d) 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;
(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
(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 moneys 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.