HOUSE BILL 357
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Al Park
AN ACT
RELATING TO THE ENVIRONMENT; ENACTING THE LEAD-BASED PAINT MANAGEMENT ACT; PROVIDING ADDITIONAL POWERS OF THE ENVIRONMENTAL IMPROVEMENT BOARD, THE DEPARTMENT OF ENVIRONMENT AND THE SECRETARY OF ENVIRONMENT; PROVIDING FOR CERTIFICATION AND ACCREDITATION OF CERTAIN LEAD-BASED PAINT PROFESSIONALS; PROVIDING FOR RECIPROCITY WITH OTHER STATES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Lead-Based Paint Management Act".
Section 2. DEFINITIONS.--As used in the Lead-Based Paint Management Act:
A. "abatement" means any set of measures designed to permanently eliminate lead-based paint hazards in accordance with standards established by the board, including:
(1) the removal 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 or the removal or covering of lead-contaminated soil; and
(2) preparation, cleanup and disposal measures and post-abatement clearance testing activities associated with such measures;
B. "board" means the environmental improvement board;
C. "certified lead-based paint contractor" means any individual who is certified by the department as a lead-based paint reduction contractor, inspector or hazard evaluator;
D. "certified lead-based paint specialist" means a lead-based paint specialist certified by the department;
E. "child-occupied facility" means a building or portion of a building constructed prior to 1978, which is visited by a child, six years of age or younger for at least three hours in one day on two or more days in the same week, when the combined visiting time for that child totals six or more hours in one week and at least sixty hours in one year. The designated weekly period for this calculation begins on Sunday and ends on Saturday. The term "child-occupied facility" includes daycare centers, preschools and kindergarten classrooms;
F. "department" means the department of environment;
G. "federally assisted housing" means residential dwellings receiving project-based assistance pursuant to federal programs, including:
(1) Section 221(d)(3) or 236 of the National Housing Act;
(2) Section 1 of the Housing and Urban Development Act of 1965;
(3) Section 8 of the United States Housing Act of 1937; or
(4) Sections 502(a), 504, 514, 515, 516 and 533 of the Housing Act of 1949;
H. "federally owned housing" means residential dwellings owned or managed by a federal agency or for which a federal agency is a trustee or conservator;
I. "hazard evaluation" means an on-site investigation process established by the rules of the board to determine and report the existence, nature, severity and location of lead-based paint hazards in residential dwellings, and "hazard evaluation" is synonymous with the term "risk assessment" as used in Title X of the Residential Lead-Based Paint Hazard Reduction Act of 1992;
J. "lead-based paint" means paint or other surface coatings that contain lead in excess of one milligram per one square centimeter, or one-half percent by weight, or:
(1) in the case of paint or other surface coatings in target housing, a lower level that is established by the United States secretary of housing and urban development, as defined in Section 302(c) of the federal Lead-Based Paint Poisoning Prevention Act; or
(2) in the case of any other paint or surface coatings, any other level established by the board;
K. "lead-based paint contractor" means any individual or business that performs or supervises or offers to perform or supervise lead-based paint services;
L. "lead-based paint hazard" means any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil or lead-contaminated paint that is deteriorated or present in accessible surfaces, friction surfaces or impact surfaces that would result in adverse human health effects as established by the board;
M. "lead-based paint hazard evaluator" means an individual certified by the department to perform lead-based paint hazard evaluations;
N. "lead-based paint inspector" means an individual certified by the department to perform a surface-by-surface investigation to determine the presence of lead-based paint and provide a report explaining the results of the investigation;
O. "lead-based paint reduction contractor" means any individual or business that performs or supervises lead-based paint services;
P. "lead-based paint services" means lead-based paint hazard evaluation, inspection, detection, reduction, renovation or remodeling or de-leading and abatement of lead sources or lead-based paint, lead-based paint hazards, lead-contaminated dust or lead-contaminated soil and demolition of structures or facilities with lead-based paint hazards, except in the case of any public building constructed before 1978, and for any other commercial building, bridge or other structure, "lead-based paint services" means identification of lead-based paint or materials containing lead-based paint, and de-leading and abatement of lead from bridges and demolition of structures or facilities with lead-based paint hazards;
Q. "lead-based paint specialist" means any worker or other person who is directly and substantially involved in the performance of lead-based paint services and who has satisfactorily completed the required level of lead-based paint training from state accredited training providers and programs, or in the case of out-of-state providers and programs, from department-recognized and -approved providers and programs, and "lead-based paint specialist" is synonymous with the term "abatement worker" or "worker" as used in Title X of the Residential Lead-Based Paint Hazard Reduction Act of 1992;
R. "reduction" means measures designed to reduce or eliminate human exposure to lead-based paint hazards through various methods, including interim controls and abatement;
S. "residential dwelling" means:
(1) a single-family dwelling, including attached structures such as porches and stoops; or
(2) a single-family dwelling unit in a structure that contains more than one separate residential dwelling unit and in which each such unit is used or occupied or intended to be used or occupied as the home or residence of one or more persons;
T. "secretary" means the secretary of environment; and
U. "target housing" means any housing constructed prior to 1978. In the case of jurisdictions that banned the sale or use of lead-based paint prior to 1978, the United States secretary of housing and urban development, at the secretary's discretion, may designate an earlier date.
Section 3. BOARD POWERS AND DUTIES.--The board shall:
A. adopt rules that are consistent with and no more restrictive than the federal Residential Lead-Based Paint Hazard Reduction Act of 1992 and rules adopted pursuant to that act, including rules that:
(1) establish a program of certification of lead-based paint contractors, including qualifications and training requirements;
(2) require certification of any lead-based paint reduction contractor or lead-based paint inspector, hazard evaluator or specialist performing or offering to perform lead-based paint services on target housing and child-occupied facilities prior to the performance of any of those services;
(3) provide for accreditation of approved training programs located in this state;
(4) contain standards for performing lead-based paint services, including reliability, effectiveness and safety;
(5) require that all lead-based paint training programs shall include a hands-on component and instruction on the health effects of lead exposure, the use of personal protective equipment, workplace hazards and safety problems, reduction and abatement methods and work practices, decontamination procedures, cleanup and waste disposal procedures, lead monitoring and on-site testing methods and legal rights and responsibilities; and
(6) identify guidelines, based on federal regulations, for the determination of adverse human health effects posed by lead-based paint hazards;
B. exempt railroad bridges owned or leased by a railroad from the rules;
C. establish fees, based on the cost of services, for:
(1) certification of lead-based paint contractors and specialists;
(2) accreditation of approved training programs and training providers;
(3) recognition and approval of out-of-state accredited training programs and training providers; and
(4) any training or other program related to lead-based paint services conducted by the department and for services rendered by the department in connection with the certification, accreditation, recognition and approval; and
D. exempt a person from the certification fees if the person files an affidavit with the department stating that the applicant is employed by the state or a political subdivision and shall only be performing lead-based paint services for the state or political subdivision employer.
Section 4. DEPARTMENT POWERS AND DUTIES.--The department shall:
A. cooperate with and implement the state lead-based paint reduction and regulation program under the jurisdiction of the federal environmental protection agency;
B. issue, renew, reactivate, reinstate, modify, suspend, revoke or deny certification pursuant to the Lead-Based Paint Management Act;
C. cooperate with others in facilitating the development of educational and training programs, examinations and community outreach materials;
D. establish criteria for certification pursuant to the Lead-Based Paint Management Act and provide for the confidentiality of examinations and individual scores;
E. issue, renew, reinstate, modify, suspend, revoke or deny accreditation to lead-based paint training programs and the providers of such programs, and recognize and approve out-of-state training programs and providers;
F. enforce the provisions of the Lead-Based Paint Management Act and rules, orders, accreditations and certifications issued pursuant to that act;
G. collect and analyze samples to determine the presence and condition of lead-based paint as necessary for the enforcement of the Lead-Based Paint Management Act;
H. convene and coordinate an interagency task force that shall meet on a regular basis to exchange information regarding lead-poisoning prevention and lead-based paint hazard control matters;
I. establish liaisons with other states that have lead-based paint contractor and lead-based paint specialist certification programs to assure consistency of program requirements in order to facilitate reciprocity of certification and accreditation among the several states;
J. enter into contracts and agreements necessary or incidental to the performance of the department's duties and the execution of its powers pursuant to the Lead-Based Paint Management Act, including contracts with the United States, other states and New Mexico state agencies and political subdivisions;
K. accept grants from the United States government and any other source and comply with conditions for the grants; and
L. exercise all incidental powers necessary to implement the Lead-Based Paint Management Act and rules adopted pursuant to that act.
Section 5. CERTIFICATION--WAIVER--RENEWAL.--
A. The department shall certify an applicant who has paid the required nonrefundable certification fees and has complied with the requirements for certification pursuant to the Lead-Based Paint Management Act.
B. The department may waive some or all of its testing, training, experience or examination requirements for certification if the applicant presents a currently valid certificate or license issued by another state or certifying agency or institution or national nonprofit organization for lead-based paint services if the department finds that the certification requirements of the issuer in effect at the time of issuance are equivalent to its certification requirements; provided, however, that no certificate shall be issued under this subsection unless the holder of the certificate would be issued a similar certificate or license by another state, certifying agency or organization under substantially the same conditions.
C. A certificate issued under this section shall be renewed by the April 1 occurring not more than one year after the date of the most recent date of issuance, renewal, reactivation or reinstatement. Thereafter, the certificate may be renewed for a one-year period beginning April 1 and ending March 31 of the following year.
D. A certificate shall be renewed upon approval of the department. Application for the renewal shall be submitted to the department on forms prescribed by the department, shall be accompanied by a nonrefundable renewal fee as set by the board and shall include documentation that the applicant has met the annual renewal requirements of the department. The department shall allow a thirty-day grace period for annual renewals without payment of late fees if the applicant submits the required renewal fee and qualifies for renewal.
E. A certificate that is not so renewed shall expire on April 30 after the thirty-day grace period and shall have no further validity unless the department, upon receipt of an application from the holder of the expired certificate within one year after the certificate's March 31 renewal date, reactivates and renews the certificate. The reactivation and renewal application shall include the submission of data on forms prescribed by the department, nonrefundable renewal and reactivation late fees as set by the board and documentation that the applicant has met the department's renewal requirements. A reactivated certificate may be renewed annually as provided in this section.
F. The holder of an expired certificate that is not renewed shall not be issued a new certificate unless the holder applies and qualifies pursuant to the Lead-Based Paint Management Act and rules adopted pursuant to that act.
G. The department may condition a certificate as it deems necessary.
H. A certificate shall not be issued pursuant to the provisions of the Lead-Based Paint Management Act to any entity other than an individual or business.
Section 6. CONTRACTORS ON PUBLIC PROJECTS REQUIRED TO BE CERTIFIED--ADVERTISEMENTS BY CONTRACTORS--USE OF ACCREDITED OR CERTIFIED LABS--OFFICIAL CERTIFICATION LIST--HEALTH AND SAFETY INFORMATION.--
A. A lead-based paint contractor shall not perform or offer to perform lead-based paint services upon any target housing or child-occupied facilities unless the contractor is certified by the department prior to performing or offering to perform such services.
B. An individual shall not advertise or otherwise present himself as a certified lead-based paint contractor or specialist for purposes of offering to perform or performing lead-based paint services unless certified by the department.
C. Certified lead-based paint contractors and specialists shall use only environmental sampling laboratories that are part of an effective voluntary accreditation program as determined by the federal environmental protection agency or that are federally certified to analyze for lead in paint, films, soil and dust.
D. The department shall maintain an official listing of the names and addresses of all certified lead-based paint contractors and specialists and make the list available to any person requesting it upon payment of a copying fee established by the board.
E. The department of labor shall provide health and safety information on abatement to all certified lead-based paint contractors and specialists.
Section 7. TRAINING PROGRAMS AND PROVIDERS.--
A. A training provider shall not advertise or otherwise present itself as offering an accredited lead-based paint training program unless accredited by the department.
B. The department may condition an accreditation as it deems necessary.
C. Any program or training provider accreditation shall be renewable annually for the period September 1 through August 31 pursuant to rules promulgated by the board.
D. The department may approve in part or in whole the current accreditation of an out-of-state training program or training provider if the department finds that the state's accreditation requirements in effect at the time of accreditation are equivalent to the requirements of the department.
Section 8. DENIAL, REVOCATION OR SUSPENSION OF CERTIFICATION OR ACCREDITATION.--
A. The department shall deny, revoke or suspend a certificate or accreditation, subject to appeal pursuant to board rules, for:
(1) gross inefficiency or incompetence;
(2) violation of any provisions of the Lead-Based Paint Management Act or rules adopted pursuant to that act or any terms or conditions of a certification, accreditation or order issued pursuant to that act; or
(3) fraud or misrepresentation in obtaining a certificate or accreditation.
B. If the department denies, suspends or revokes a certificate or accreditation, the applicant may, after one year, apply for a new or a reinstatement of the certification or accreditation.
C. The department may withdraw in part or in whole its recognition and approval of any out-of-state training program or training provider at any time the program or provider does not qualify.
Section 9. LEAD-BASED PAINT PUBLIC INFORMATION PROGRAM.--
A. Consistent with the terms of federal funding agreements and the receipt of the funds by the department for information programs, the secretary shall institute an education and public information program in order to inform the general public, parents of children residing in areas of significant exposure to sources of lead-based paint hazards, teachers, social workers and other human services personnel, owners of residential property and health services personnel at hospitals of the dangers, frequency and sources of lead-based paint hazards and the methods of preventing such hazards.
B. The department, after notice and opportunity for comment, shall publish and update a lead-based paint hazard information pamphlet to be used in connection with the Lead-Based Paint Management Act and Section 1018 of the federal Residential Lead-Based Paint Hazard Reduction Act of 1992. The pamphlet shall:
(1) contain information regarding the health risks associated with exposure to lead;
(2) provide information on the presence of lead-based paint hazards in federally assisted, federally owned and target housing;
(3) describe the risk of lead exposure for children under six years of age, pregnant women, women of childbearing age, persons with respiratory disease or disabilities, persons involved in home renovation and others residing in a residential dwelling with lead-based paint hazards;
(4) describe the risks of renovation in a dwelling with lead-based paint hazards;
(5) provide information on approved methods for evaluating and reducing lead-based paint hazards and their effectiveness in identifying, reducing, eliminating or preventing exposure to lead-based paint hazards;
(6) advise persons how to obtain a list of certified lead-based paint contractors;
(7) state that a lead-based paint hazard evaluation or on-site inspection for lead-based paint is recommended prior to the purchase, lease or renovation of target housing;
(8) state that certain state and local laws may impose additional requirements related to lead-based paint in housing and provide a listing of federal, state and local agencies in each state, including addresses and telephone numbers, that can provide information about applicable laws and available government and private assistance and financing; and
(9) provide any other information about environmental hazards associated with residential real property as the department deems appropriate.
Section 10. RENOVATION, DEMOLITION AND REMODELING--GUIDELINES.--The board shall adopt guidelines for renovation, demolition and remodeling activities that may create a risk of exposure to dangerous levels of lead. The department shall disseminate such guidelines to persons engaged in renovation, demolition and remodeling through hardware and paint stores, employee organizations, trade groups, state and local agencies and through other appropriate means.
Section 11. EMPLOYMENT CONTINGENT UPON FEDERAL FUNDS.--Any full-time-equivalent employees of the department pursuant to the Lead-Based Paint Management Act that are to be compensated with federal funds shall be employed contingent upon the procurement of federal funds and shall be terminated when federal support of those positions is discontinued. All activities performed by these employees shall be discontinued upon their termination due to the lack of federal funds.
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