ENROLLED

H. B. 4321


(By Delegates Perdue, Hatfield, Staton,

Browning, Rick Thompson and Stemple)

[Passed March 10, 2006; in effect ninety days from passage.]




AN ACT to amend and reenact §16-35-3 and §16-35-7 of the Code of West Virginia, 1931, as amended, all relating to definitions and modifications of exemptions from notification and licensure with respect to lead abatement.

Be it enacted by the Legislature of West Virginia:

That §16-35-3 and §16-35-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 35. LEAD ABATEMENT.

§16-35-3. Definitions.

(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) "Commissioner" means the Commissioner of the West Virginia Bureau for Public Health or his or her representative.

(f) "Discipline" means any one of the following: Lead abatement contractor, lead abatement supervisor, lead inspector, lead risk assessor, lead abatement worker, or lead abatement project designer.


(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 investigation.

(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
programs.
(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 and occupant protection plans.

(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 project.

(p) "Lead-based paint" means paint or other surface coatings that contains lead at a level defined by the commissioner 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 health.

(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 project, to develop occupant protection plans and to develop abatement reports.

(v) "OSHA" means the United States Occupational Safety and Health Administration.

(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 local government.

(y) "Target housing" means residential structures built prior
to one thousand nine hundred seventy-eight or residential structures that are confirmed by inspection to contain lead-based paint.
§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: Provided, That the provisions of this section do not apply to any residential dwelling occupied by a person or persons other than the owner or the owner's immediate family as well as to any residential dwelling where a child with a documented elevated blood lead level resides.

(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 industrial facility.