44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO HEALTH; CREATING A PROGRAM TO PREVENT LEAD POISONING IN CHILDREN; PROVIDING POWERS AND DUTIES; PROVIDING FOR SUNSET OF THE PROGRAM.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Lead Hazard Act".

Section 2. PURPOSES.--The purposes of the Lead Hazard Act are to:

A. establish, pursuant to federal requirements, a program in the department for prevention of childhood lead poisoning through regulation of work practices for lead hazard identification, risk assessment, reduction and abatement in target housing;

B. establish the legislative and regulatory framework necessary for New Mexico to be eligible for federal funding to identify and abate lead hazards for children and help prevent childhood lead poisoning;

C. permit New Mexico to administer and enforce rules developed pursuant to Title 4 of the federal Toxic Substances Control Act rather than having the United States environmental protection agency administer and enforce the program in the state;

D. provide for certification of professionals conducting lead hazard activities in target housing, accreditation of training providers and development of work-practice standards for target housing; and

E. provide for reciprocity of certification and accreditation with other states.

Section 3. DEFINITIONS.--As used in the Lead Hazard Act:

A. "child" means a person less than six years of age;

B. "department" means the department of health;

C. "federal requirements" means:

(1) Title 4 of the federal Toxic Substances Control Act and rules adopted by the environmental protection agency pursuant to that act as they relate to target housing; and

(2) rules or requirements adopted by the department of housing and urban development regarding eligibility for grants to states and local governments;

D. "housing for the elderly" means retirement communities or housing reserved for households composed of one or more persons sixty-two years of age or older;

E. "interim control activity" means any measure or set of measures designed to temporarily reduce current or potential human exposure to a lead hazard;

F. "lead-based paint" means paint or other surface coatings that contain lead equal to or in excess of one milligram per square centimeter or one-half of one percent by weight;

G. "lead hazard" means a substance, surface or object that contains lead and that, due to its condition, location or nature, may contribute to human lead poisoning or lead exposure;

H. "lead hazard abatement" means any measure or set of measures designed to permanently eliminate a lead hazard, as specified under federal requirements;

I. "lead hazard activities" includes lead hazard identification, risk assessment, reduction and abatement in target housing;

J. "lead hazard identification" means the on-site inspection of target housing for the presence of actual or potential lead hazards;

K. "lead hazard reduction" means actions designed to minimize lead hazards in target housing, including lead hazard abatement and interim control activities;

L. "lead hazard risk assessment" means an on-site investigation of target housing to determine the existence, nature, severity and location of lead hazards;

M. "lead poisoning" or "lead exposure" means a confirmed concentration of lead in whole blood of a child of ten or more micrograms of lead per deciliter of whole blood;

N. "secretary" means the secretary of health;

O. "target housing" means:

(1) housing constructed prior to 1978, except housing for the elderly or persons with disabilities unless one or more children reside or are expected to reside in such housing, and except for zero-bedroom dwellings;

(2) a child-occupied facility, which is a residence or other building or portion of a building, constructed prior to 1978, visited regularly by the same child on at least two different days within the week, Sunday through Saturday, when each day's visit lasts at least three hours, the combined weekly visit lasts at least six hours and the combined annual visits last at least sixty hours. Child-occupied facilities include daycare centers, preschools and kindergarten classrooms; or

(3) all structures attached to target housing and the real property upon which target housing stands that may include a lead hazard; and

P. "zero-bedroom dwelling" means any residential dwelling in which the living area is not separated from the sleeping area and includes efficiencies, studio apartments, dormitory housing, military barracks and rentals of individual rooms in residential dwellings.

Section 4. DEPARTMENT--POWERS AND DUTIES.--

A. The department is the designated state agency for implementation of federal requirements and shall develop and implement a lead hazard program that meets but is no more stringent than federal requirements.

B. The department shall:

(1) establish a program for prevention of childhood lead poisoning through regulation of work practices for lead hazard identification, risk assessment, reduction and abatement in target housing;

(2) adopt and promulgate rules that:

(a) require certification of persons that offer to perform lead hazard activities in target housing;

(b) set training requirements for persons directly and substantially involved in the performance of lead hazard activities in target housing;

(c) establish accreditation standards for programs that train persons involved in lead hazard activities in target housing, including: 1) minimum requirements for the accreditation of training providers; 2) minimum training curriculum requirements; 3) minimum training hour requirements; 4) minimum hands-on training requirements; 5) minimum trainee competency and proficiency requirements; 6) minimum requirements for training program quality control; and 7) criteria and procedures for suspension, revocation and modification of accredited training programs;

(d) establish standards for performing lead hazard activities in target housing, taking into account reliability, effectiveness and safety;

(e) establish criteria and procedures for suspension and revocation of professional certification; and

(f) provide for enforcement of the Lead Hazard Act and the rules adopted pursuant to that act;

(3) dedicate suitable staff and acquire suitable space, equipment, supplies and other items necessary to carry out the provisions of the Lead Hazard Act and rules adopted pursuant to that act; and

(4) apply for and expend available federal funds for lead hazard activities and implementation of the lead hazard program.

C. In order to carry out the purposes of the Lead Hazard Act and to ensure that lead hazard activities do not create additional health hazards, the department may:

(1) with prior notification enter target housing where lead hazard activities are being conducted by a paid inspector or contractor for the purpose of monitoring the conduct of those lead hazard activities at reasonable times and without undue delay;

(2) enter and inspect the facilities of a person providing lead hazard activities training for the purpose of monitoring training activities and equipment, at reasonable times and without undue delay; and

(3) collect information from a person involved in lead hazard activities or training about lead hazard activities.

D. The department may, depending on availability of funding:

(1) collect and analyze data on the:

(a) extent of lead-based paint hazards in New Mexico;

(b) lead hazard activities in New Mexico; and

(c) certification, accreditation and enforcement activities of the department; and

(2) conduct public education programs on the nature and consequences of lead poisoning, the need for accredited training providers and the need for certified personnel for lead hazard activities.

Section 5. COMPLIANCE--ENFORCEMENT.--

A. Lead hazard activities shall be performed by certified personnel and shall comply with department rules adopted pursuant to the Lead Hazard Act. Lead hazard training providers shall be accredited by the department and comply with department rules.

B. The department shall enforce the provisions of the Lead Hazard Act and rules adopted pursuant to that act by issuance of appropriate orders or decisions and through sanctions and penalties established by federal rules and state rules adopted pursuant to the Lead Hazard Act. Penalties collected pursuant to this section shall be deposited in the general fund.

C. State enforcement rules shall make provision for:

(1) inspections to determine compliance with rules and standards developed pursuant to the Lead Hazard Act;

(2) sampling techniques to determine compliance with rules and standards developed pursuant to the Lead Hazard Act;

(3) follow-up for complaints;

(4) sanctions and penalties;

(5) flexible remedies; and

(6) compliance assistance.

Section 6. APPEAL.--

A. A person aggrieved by a sanction or penalty issued pursuant to the Lead Hazard Act or rules adopted pursuant to that act may appeal to the secretary within thirty days after receipt of notice of the sanction or penalty. A hearing shall be held within sixty days on each appeal filed. The secretary shall appoint a hearing officer to hear the appeal and provide for due process. The hearing officer shall report his findings to the secretary, who shall make the final decision. The party may appeal the decision of the secretary to the district court. An appeal to the district court shall be on the record.

B. While an appeal is pending, compliance with a sanction or penalty shall not be required unless the secretary determines by a separate finding that the violation was intentional or that there exists a hazardous condition that requires immediate compliance with the sanction or penalty so as to eliminate a public health hazard.

Section 7. RECIPROCITY.--The department may establish liaison with other states having lead hazard activities programs to ensure maximum consistency of program requirements to facilitate reciprocity of certification and accreditation with other states.

Section 8. FEES.--The department may collect reasonable fees for certification, accreditation and other reviews as may be necessary to carry out the provisions of the Lead Hazard Act and rules adopted pursuant to that act.

Section 9. EXPIRATION OF PROGRAM.--The lead hazard program established pursuant to the Lead Hazard Act shall expire on June 30, 2004, unless continued by the legislature.

Section 10. DELAYED REPEAL.--This act is repealed July 1, 2004.