HB 466

Under existing law, the Alabama Lead Reduction Act of 1997 identifies and reduces the threat to human health posed by exposure to lead

This bill would amend the Alabama Lead Reduction Act to add definitions, increase regulations relating to lead hazard reductions, increase the authority of the Department of Public Health to conduct lead inspections and enforce the act, and increase penalties for violations of the act

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment

Relating to lead reduction; to amend Sections 22-37A-2, 22-37A-3, 22-37A-4, 22-37A-5, 22-37A-6, and 22-37A-7, Code of Alabama 1975, to add definitions; to increase regulations relating to lead hazard reductions; to increase the authority of the Department of Public Health to conduct lead inspections and enforce the act; and to increase penalties for violations of the act; to repeal Sections 22-37A-8 and 22-37A-9, Code of Alabama 1975; and in connection therewith would have as its purpose or effect the requirement of new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, as amended.

Section 1

Sections 22-37A-2, 22-37A-3, 22-37A-4, 22-37A-5, 22-37A-6, and 22-37A-7, Code of Alabama 1975, are amended to read as follows:

§22-37A-2.

As used in this chapter, the following terms have the following meanings:

(1) ABATEMENT. Any set of measures designed to eliminate lead-based paint hazards in accordance with standards developed by the board, including both of the following:

a. 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, and the removal or covering of lead-contaminated soil.

b. All preparation, cleanup, disposal, and post-abatement clearance testing activities associated with those measures.

(1) (2) ACCREDITED INDIVIDUAL. An individual who engages in lead hazard reduction activities, who has successfully completed a Safe State accredited lead training course appropriate for the type or category of lead hazard reduction activity to be provided, who meets all other personal accreditation requirements established by Safe State under this chapter, and who holds a valid registration in the state accreditation registry for the relevant type or category of lead hazard reduction activity.

(2) (3) ACCREDITED LEAD TRAINING COURSE. A course of instruction which has been reviewed and accredited by Safe State as meeting or exceeding training requirements established under Title IV of the Federal Toxic Substances Control Act (Public Law 99-519, 100 Stat. 2970, 15 U.S.C. §2601 et seq., as amended).

(3) (4) BOARD. The State Board of Health as defined in Section 22-2-1.

(5) CHILD-OCCUPIED FACILITY. A building, or portion of a building, constructed prior to 1978, visited regularly by the same child, six years of age or under, on at least two different days within the same week, Sunday through Saturday, provided each day's visit lasts at least three hours and the combined weekly visits last at least six hours, and the combined annual visits last at least 60 hours. The term includes, but are not limited to, day care centers, preschools, and kindergarten classrooms.

(6) DEPARTMENT. The Alabama Department of Public Health.

(4) (7) INDOOR. The enclosed portions of buildings including public buildings, residences, and commercial buildings. For the purposes of this chapter, "indoor" shall include the exterior surfaces and all common areas of the structure including any attached or unattached structure located within the same lot line, including but not limited to, garages, play equipment, and fences.

(8) INSPECTION. A surface-by-surface investigation to determine the presence of lead-based paint and the provision of a report explaining the results of the investigation.

(9) LEAD-BASED PAINT ACTIVITIES. The inspection and assessment of lead hazards and the planning, implementation, and inspection of interim controls, renovation, and abatement activities at target housing and child-occupied facilities.

(5) (10) LEAD HAZARD REDUCTION ACTIVITIES. Activities designed to reduce exposure to lead in residences or public buildings and may include inspections, risk assessments, repair, enclosure, encapsulation, or removal of lead-based paint or lead contamination, or both, and the design and planning of such activities, and other related activities as established in Title IV of Toxic Substances Control Act, Public Law 99-519, 100 Stat. 2970, 15 U.S.C. §2601 et seq., as amended, which are to be performed in residences or public buildings.

(6) (11) PERSON. An individual, firm, partnership, corporation, commission, state agency, county governmental body, municipal corporation, party, company, association, or any other public or private legal entity.

(7) PUBLIC BUILDING. A building designed for public access and maintained for the public benefit through the use of state or local government funds, including public housing, schools, day care centers, and government facilities, or any location at which Title IV of the Federal Toxic Substances Control Act, or regulations thereunder, require lead-based paint activities be performed by an accredited individual, as those terms are defined in that act, such as commercial buildings and bridges. This term shall not apply to any of the following:

a. Business facilities where access is principally limited to employees.

b. Private clubs and residences.

c. Commercial buildings.

(12) RENOVATION. The modification of any target housing or child-occupied facility structure or portion thereof that results in the disturbance of painted surfaces unless that activity is performed as part of an abatement activity. The term includes, but is not limited to: The removal, modification, re-coating, or repair of painted surfaces or painted components; the removal of building components; weatherization projects; and interim controls that disturb painted surfaces. The term also includes a renovation performed for the purpose of converting a building, or part of a building, into target housing or a child-occupied facility. The term does not include minor repair and maintenance activities.

(13) RISK ASSESSMENT. An on-site investigation to determine the existence, nature, severity, and location of lead-based paint hazards and the provision of a report by the individual or the firm conducting the risk assessment, explaining the results of the investigation and options for reducing lead-based paint hazards.

(8) (14) SAFE STATE. The Safe State Program, a division of the University of Alabama.

(9) (15) STATE HEALTH OFFICER. The State Health Officer as defined in Section 22-2-8.

(16) TARGET HOUSING. Any housing constructed prior to 1978, except housing for the elderly or persons with disabilities unless one or more children age six years or under resides or is expected to reside in that housing for the elderly or persons with disabilities; or any zero-bedroom building.

§22-37A-3.

(a) With regard to facilities, the scope of this chapter shall not exceed the requirements of Title IV of the Federal Toxic Substances Control Act.

(b) The board may develop shall establish a statewide program to identify and reduce the threat to human health posed by exposure to lead. In furtherance of this purpose, the board may perform each of the following functions:

(1) Conduct and supervise development programs and studies to determine the source, effect, and hazards of lead.

(2) Conduct research or participate in research within the state.

(3) Collect and disseminate information.

(1) Certify all individuals involved in lead-based paint abatement activities.

(2) Issue, reissue, suspend, revoke, or deny the issuance or reissuance of certification for an accredited individual.

(3) Establish standards for the program.

(4) Ensure compliance with regulations.

(5) Enforce the certification program.

(6) Establish a program for the education of owners and occupants of target housing and child-occupied facilities concerning lead-based paint hazards. This program shall require persons who perform renovation in such facilities for compensation to provide owners and occupants with a lead hazard information pamphlet prior to commencing the renovation. The program shall meet the requirements of the federal program under the Lead Based Paint Exposure Reduction Act, 15 U.S.C. §2681 et seq.

(4) (7) Make contracts and execute instruments that are necessary or convenient to the exercise of its powers or the performance of its duties under this chapter.

(5) Encourage voluntary cooperation by persons or affected groups to achieve the purposes of this chapter.

(6) (8) Assist persons in evaluating existing or potential health hazards from lead, including, but not limited to, health hazards from external sources that infiltrate the indoor environment and those from materials, processes, or human activities in the indoor environment.

(7) (9) Assist persons in methods to control, remove, or minimize sources of lead.

(8) Advise, consult, and cooperate on matters of common interest in lead hazard reduction with other agencies of the state, political subdivisions of the state, industries, other states, the federal government, and interested persons or groups.

(9) (10) Represent the state in matters relating to lead hazard reduction and apply for and receive, on behalf of the state, matching grants, gifts, donations, foundation awards, or other legitimate means of support for the intents and purposes of this chapter, and to make other decisions concerning the fiscal aspects of the powers, duties, programs, and activities of the board under this chapter.

(11) Enter into cooperative agreements with, and accept grant assistance from, the U.S. Environmental Protection Agency in support of certification provisions of Title IV of the Federal Toxic Substances Control Act or from any other agency of government or under other authority to carry out the intent of this chapter.

(10) (12) Enter into cooperative agreements or contracts to demonstrate practices, methods, technologies, or processes which may be effective in controlling sources or potential sources of lead, preventing the occurrence of lead, and reducing exposure to lead; and accept financial assistance in the form of grants from public agencies and authorities, nonprofit institutions and organizations, educational institutions, or other persons.

(11)(13) Establish by rule a fee schedule for performing lead investigations and services, which may not in any case exceed the actual costs.

(12) (14) Subject to the Alabama Administrative Procedure Act, publish guidelines in performing lead hazard reduction.

(15) The board shall be authorized to adopt all necessary rules for the implementation and enforcement of this chapter.

§22-37A-4.

(a) The State Health Officer may conduct investigations as necessary to administer this chapter, and the rules adopted and orders issued under this chapter. The State Health Officer may conduct investigations of general lead contamination problems or conditions in public buildings, and upon request of the building owner of commercial buildings, or upon the request of the owner or occupant of residential buildings.

(b) The department and its designated staff may enter the business premises of persons and firms certified to engage in lead-based paint activities during business hours upon presenting credentials identifying themselves as employees of the department.

(c) The department and its designated staff may enter any structure, including residences, where lead-based paint activities have occurred or are being conducted, for the purpose of determining compliance with lead-based paint statutes and regulations, upon obtaining the consent of the owner, adult occupant of the premises, or his or her designee, after presenting credentials identifying themselves as employees of the department.

§22-37A-5.

(a) Before engaging in lead hazard reduction activities, a person, firm, or corporation shall be certified by the board as specified in this chapter. This subsection shall not apply to an individual performing lead abatement on a structure, or the portion of a structure that is used as his or her private residence. Notwithstanding the foregoing, this subsection shall apply to any person contracted by the home owner to perform deleading activities and also applies where the owner performs such activities in or upon another structure which is not his or her private residence or the portion thereof. For the purpose of this subsection, the term

deleading" means activities conducted by a person who offers to eliminate lead-based paint or lead-based paint hazards or to plan such activities.

(b) Subject to the Alabama Administrative Procedure Act, the board shall develop and publish certification procedures for each type of contractor in lead hazard reduction activities and specify qualifications, including, but not limited to, training accreditation and blood lead tests for personnel. The satisfaction of these qualifications shall be documented by the contractor before the contractor is certified and permitted to engage in the provision of lead hazard reduction activities.

(c) The board shall establish decertification and recertification policies and procedures for each type of lead hazard service contractor.

(d) The board may establish by rule reasonable and necessary fees for the conduct of the contractor certification program and for the performance of field inspections of abatement projects. The board may adopt rules, including definitions and standards, and issue necessary orders to implement this chapter, which rules and orders shall have the effect of law.

(e) The board may enter into cooperative agreements with and accept grant assistance from the U.S. Environmental Protection Agency in support of certification provisions of Title IV of the Federal Toxic Substances Control Act or from any other agency of government or under other authority to carry out the intents of this chapter.

(a) No person shall be certified under this chapter unless that person has successfully completed the appropriate training program, passed an examination approved by the department for the appropriate category of certification, and completed any additional requirements imposed by the board by rule.

(b) No person shall perform or represent that he or she is qualified to perform any lead-based paint activities unless the person possesses the appropriate certification as determined by the board or unless that person is any of the following:

(1) An owner performing abatement or renovation upon that person's own residential property.

(2) An employee of a property management company doing minor repairs and maintenance activities upon property managed by that company where there is insignificant damage, wear, or corrosion of existing lead-containing paint or coating substances.

(3) An owner routinely doing minor repairs and maintenance activities upon his or her property where there is insignificant damage to, wear of, or corrosion of existing lead-containing paint or coating substances.

(c) The board shall adopt rules establishing standards of acceptable professional conduct and work practices for the performance of lead-based paint activities, as well as specific acts and omissions that constitute grounds for the reprimand of any licensee, the suspension, modification, or revocation of a license, or the denial of issuance or renewal of a license.

(d) The board may issue a corrective action order to any person who violates this chapter or any rule adopted pursuant to this chapter. The order shall specify the provision of this chapter or any rule alleged to have been violated and shall order necessary corrective action be taken within a reasonable time to be prescribed in the order.

(e) The board is authorized to revoke or suspend any license, certification, or approval issued under this chapter, in accordance with the rules adopted pursuant to this chapter.

(f) It shall be unlawful for any person to provide training or engage in lead-based paint activities regulated under this chapter except in such a manner as to conform to and comply with this chapter and all applicable rules and orders established under this chapter.

§22-37A-6.

(a) Safe State, a division of the University of Alabama, is designated as the state accreditation agency for lead hazard training.

(b) Subject to the Alabama Administrative Procedure Act, Safe State shall establish a program to review and accredit lead training courses in accordance with Title IV of the Federal Toxic Substances Control Act.

(c) Safe State shall establish and maintain a state registry of accredited individuals who have successfully completed accredited lead training courses and who meet all other personal accreditation requirements established by Safe State under this chapter.

(d) An individual who provides or participates in the lead hazard reduction activities described in Section 22-37A-5 shall obtain valid Safe State registration and certification from the board prior to engaging in such activities.

(e) Subject to the Alabama Administrative Procedure Act, Safe State shall develop and publish policies and procedures governing the accreditation of lead training courses and the registration of accredited individuals.

(f) Safe State may establish reasonable fees for the conduct of the accreditation and registration programs and expend the fees to administer the program.

(g) Safe State may enter into cooperative agreements with and accept grant assistance from the U.S. Environmental Protection Agency in support of the training and accreditation provisions of Title IV of the Federal Toxic Substances Control Act (Public Law 99-519, 100 Stat. 2970, 15 U.S.C. §2601 et seq., as amended), or from any other agency of government or under other authority to carry out the intents of this chapter.

(h) Safe State may negotiate and establish reciprocity agreements with other states where equivalency of lead training accreditation or registration of individuals, or both, can be demonstrated.

§22-37A-7.

(a) Persons engaged in lead hazard reduction activities shall be certified by the board and observe proper removal procedures and precautions, as established by the rules adopted by the board. The board may enforce such rules by order.

(b) An owner or operator of an entity engaged in lead hazard reduction activities who fails to comply with subsection (a) of this section and rules adopted or orders issued thereunder shall be guilty of a Class C misdemeanor.

(a)(1) Any person who violates any provision of this chapter or the rules adopted pursuant to this chapter shall be subject to a civil penalty of up to two thousand five hundred dollars ($2,500) per day for each day during which the act or omission continues or occurs.

(2) A civil penalty may be assessed and enforced in the following manner:

a. The State Health Officer may issue a civil penalty assessment against any person responsible for the violation.

b. For a first violation, the State Health Officer may issue a civil penalty of two hundred fifty dollars ($250) per violation per day for each day during which the act or omission continues or occurs. The violator may opt to successfully complete an accredited lead training course appropriate for the type of category of renovation abatement discipline, undergo registration in the state accreditation registry, become a department certified firm, and therefore not be required to pay a fine.

c. For a second violation, the State Health Officer may assess a civil penalty of five hundred dollars ($500) per day for each day during which the act or omission continues or occurs and mandatory successful completion of an accredited lead training course appropriate for the type or category of renovation abatement discipline, registration in the state accreditation registry, and becoming a department certified firm.

d. For a third violation, the State Health Officer may assess a civil penalty of two thousand five hundred dollars ($2,500) per day for each day during which the act or omission continues or occurs.

e. Any person against whom an assessment has been issued may obtain a review of the assessment by filing with the State Health Officer a written petition setting forth the grounds and reasons for the objection, and requesting a hearing. If a petition for review is not filed within 30 days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final.

f. Whenever an assessment has become final because of a person's failure to appeal the State Health Officer's assessment, the State Health Officer may apply to the appropriate court for a judgment and seek execution of the judgment. The court, in such proceedings, shall treat a failure to appeal the assessment as a confession of judgment in the amount of the assessment.

g. In lieu of the administrative assessment procedure, the State Health Officer may also institute proceedings for assessment of a civil penalty in the circuit court of Montgomery County, or in the circuit court of the county in which all or part of the violation occurred.

h. In assessing the civil penalty, the State Health Officer may consider the following factors:

1. Whether the civil penalty imposed will be a substantial economic deterrent to the illegal activity.

2. The potential or actual harm posed to people or the environment by the violation.

3. The cause of the violation.

4. The effectiveness of action taken by the violator to cease the violation.

5. The economic benefit gained by the violator.

i. All fees collected and all fines, penalties, and funds of any nature received by the State Board of Health under authority of this chapter shall be remitted to the State Board of Health to the credit of the Lead Reduction Fund. The expenses incurred by the State Board of Health in carrying out this chapter shall be paid from moneys in the Lead Reduction Fund; however, the expenditure from the fund shall be budgeted and allotted pursuant to the Budget Management Act and Article f Chapter 4 of Title 41.

j. If it appears that a person has violated, is violating, or is threatening to violate this chapter or a rule adopted or order issued under this chapter, the State Health Officer or a county health officer, as appropriate, may institute a civil suit in his or her own name in a circuit court to obtain injunctive relief to restrain the person from continuing the violation or threat of violation.

k. Any person violating the provisions of this chapter shall be guilty of a Class A misdemeanor.

(b) In addition to, or in lieu of, any penalties authorized under this chapter, the State Health Officer may require any person violating this chapter to complete additional training."

Section 2

Sections 22-37A-8 and 22-37A-9, Code of Alabama 1975, relating to injunctive relief and the distribution of fines and fees collected, are repealed.

Section 3

Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 4

This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.