Journal of the House

________________

WEDNESDAY, FEBRUARY 27, 2008

At ten o'clock in the forenoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by Reverend Mary Mansfield of St. John's Episcopal Church, Stowe, VT.

Committee Bill Introduced

H. 874

Rep. Sweaney of Windsor, for the committee on Government Operations, introduced a bill, entitled

An act relating to decomposed municipal budgets;

Which was read the first time and, under the rule, placed on the Calendar for notice tomorrow.

Message from the Senate No. 28

     A message was received from the Senate by Mr. Marshall, its Assistant Secretary, as follows:

Madam Speaker:

I am directed to inform the House that the Senate has considered House proposal of amendment to Senate bill of the following title:

S. 209.  An act relating to the Vermont energy efficiency and affordability act.

And has concurred therein with an amendment in the passage of which the concurrence of the House is requested.

Senate Bills Referred

Senate bills of the following titles were severally taken up, read the first time and referred as follows:

S. 146

Senate bill, entitled

An act relating to advertising and producing musical performances;

To the committee on Commerce.

S. 220

Senate bill, entitled

An act relating to the confidentiality of library patron records;

To the committee on Judiciary.

Joint Resolution Referred to Committee

J.R.S. 54

The Speaker placed before the House a joint resolution, entitled

Joint resolution urging Congress to reauthorize the Debbie Smith DNA backlog grant program at current or increased funding levels;

By Senators Sears and Bartlett;

Whereas, DNA technology is increasingly vital to ensuring accuracy and fairness in the criminal justice system, but it is not yet considered a routine tool for law enforcement to use for criminal identification, and

Whereas, nationwide, over 50,000 law enforcement investigations have benefited from DNA matches made through the Federal Bureau of Investigations Combined DNA Index System (CODIS) bringing justice to victims and removing criminals from the streets, and

Whereas, the “Innocence Project” has used DNA in over 200 cases to exonerate persons who were wrongly convicted of crimes, and

Whereas, in 2008, Vermont and other states now have access to the DNA identity materials of many more convicted felons and arrested individuals, and this increased information assists the states’ efforts to solve unsolved crimes, and

Whereas, the demand for DNA testing in criminal investigations of both violent and nonviolent crimes increases as the DNA testing technology improves, and

Whereas, many laboratories still maintain DNA backlogs of six months or longer and are unable to meet the growing demand for DNA testing despite funding commitments from state and local governments, and

Whereas, the federal Debbie Smith DNA backlog grant program has permitted state and local governments an opportunity to begin to maximize the full potential of forensic DNA through backlog reduction, but much work remains to be done, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly strongly urges Congress to reauthorize the Debbie Smith DNA backlog grant program at current or increased funding levels, and be it further

Resolved: That the Secretary of State be directed to send a copy of this resolution to Speaker of the House Nancy Pelosi, to United States Senator Harry Reid, to United States Senator Mitch McConnell, and to the Vermont Congressional delegation.

Which was read and, in the Speaker’s discretion, treated as a bill and referred to the Committee on Judiciary.

Joint Resolution Referred to Committee

J.R.H. 54

Reps. Obuchowski of Rockingham, Dostis of Waterbury and Kitzmiller of Montpelier offered a joint resolution, entitled

Joint resolution urging Congress to eliminate the Enron Loophole regulatory exemption for energy and metal commodities traded on electronic commodities markets;

Whereas, thousands of Vermonters rely on heating oil to heat their homes and businesses and on gasoline to operate their cars and farm machinery, and

Whereas, the retail price of these refined petroleum products is premised, in large measure, on the wellhead price of crude oil that has in recent weeks hovered in the historically high $100.00‑per‑barrel range, and

Whereas, on February 19, some March futures’ contracts for gasoline and heating oil, as sold on the New York Mercantile Exchange, rose to levels that were predicated on crude oil barrel prices exceeding $100.00 per barrel, and

Whereas, a major contributing factor to the escalating cost of crude oil is the so-called “Enron Loophole” (7 U.S.C. § 2(h)(3)), a statutory amendment to the Commodity Exchange Act, which Congress enacted as part of the Commodity Futures Modernization Act in December 2000, at the behest of the large commercial energy traders, which exempts from the regulatory jurisdiction of the federal Commodities Futures Trading Corporation (CFTC) “all agreements, contracts and transactions in energy and metals that are traded on electronic facilities between eligible commercial entities,” and

Whereas, the statute refers to these electronic facilities (or markets) as exempt commercial markets (ECM), and the CFTC’s jurisdiction is limited to matters pertaining to fraud and price manipulation and a requirement that incidents of an ECM performing a significant price discovery function “be reported publicly,” and

Whereas, the principal ECM is the Intercontinental Exchange (ICE), formed in 2000, and according to a June 2006 report of the U.S. Senate Committee on Homeland Security and Governmental Affairs, Permanent Subcommittee on Investigations, entitled “The Role of Market Speculation in Rising Gas and Oil Prices: The Need to Put the Cop Back on the Beat,” as of December 2005 is the largest over‑the‑counter (OTC) trader for energy commodities “with over 9,300 active screens at over 1,000 participating firms and over 440 futures participant firms,” and

Whereas, as the June 2006 report explained, unlike other OTC exchanges, “neither the CFTC nor the OTC trading facility itself monitors trading activity” of an ECM “to detect and deter fraud and price manipulation,” and “key trading information is not disclosed to the CFTC or the public,” and

Whereas, “although ICE discloses to the CFTC and subscribers of its data services certain information about posted bids, offers, and completed trades, other critical data routinely reported by the regulated exchanges do not have to be filed with the CFTC,” and

Whereas, the report cited the Enron scandal “as clear evidence of how a few sophisticated, unscrupulous traders can harm not only other market participants, but also the public at large by artificially increasing oil prices,” and further estimated that $20.00 of the price of a barrel of oil can be attributed to crude oil futures, and

Whereas, in June 2007, the same congressional subcommittee issued another report entitled “Excessive Speculation in the Natural Gas Market,” reflecting similar problems in this energy market, and

Whereas, one of the 2007 report’s recommendations stated “Congress should eliminate the ‘Enron Loophole’” and said that “experience since passage of the Commodity Futures Modernization Act of 2000, demonstrates there is no sound rationale for exempting electronic energy exchanges from regulatory oversight,” and

Whereas, both reports make clear the substantial role of market speculation on price increases in the international energy market, and the New England Fuel Institute has estimated that $1.00 of the retail purchase price of a gallon of gasoline is due to energy speculation, and

Whereas, legislative initiatives in Congress, including a bill that U.S. Representative Peter Welch introduced, H.R. 4066, “To Amend the Commodity Exchange Act to Close the Enron Loophole, Prevent Price Manipulation and Excessive Speculation in the Trading of Energy Commodities,” and a parallel U.S. Senate bill that U.S. Senator Carl Levin sponsored, S. 2058, both seek to end the Enron Loophole, and

Whereas, although neither of these measures has moved forward in the legislative process, the 2007 farm bill conferees have before them language to reverse the Enron Loophole, but this provision is not considered essential to the farm bill’s final language, and

Whereas, should the Enron Loophole language not be included in the 2007 farm bill then Congress should adopt either H.R. 4066 or S. 2058, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly urges Congress to eliminate the Enron Loophole regulatory exemption for energy and metal commodities traded on electronic commodities markets, and be it further

Resolved:  That the secretary of state be directed to send a copy of this resolution to the Vermont Congressional Delegation.

Which was read and, in the Speaker’s discretion, treated as a bill and referred to the committee on Natural Resources and Energy.

Bills Referred to Committee on Appropriations

House bills of the following titles, appearing on the Calendar, carrying appropriations, under the rule, were referred to the committee on Appropriations:

H. 549

House bill, entitled

An act relating to establishing buffer zones along waterways of the state;

H. 859

House bill, entitled

An act relating to increasing substance abuse treatment, vocational training, and transitional housing for offenders in order to reduce recidivism, increase public safety and reduce corrections costs.

Committee Relieved of Consideration

and Bill Committed to Other Committee

H. 782

Rep. Crawford of Burk moved that the committee on Education be relieved of House bill, entitled

An act relating to school buses;

And that the bill be committed to the committee on Transportation, which was agreed to.

Rules Suspended; Bill read Second Time; Third Reading Ordered;

Rules Suspended; Bill Read Third Time and Passed;

Rules Suspended; Bill Ordered Messaged to Senate Forthwith

H. 874

Pending entrance of the bill on the Calendar for notice, on motion of Rep. McDonald of Berlin,  the rules were suspended and House bill, entitled

An act relating to decomposed municipal budgets;

Was taken up for immediate consideration.

     Thereupon, the bill was read the second time and third reading ordered.

On motion of Rep. McDonald of Berlin, the rules were suspended and the bill placed on all remaining stages of passage.  The bill was read the third time and passed and, on motion of Rep. McDonald of Berlin the rules were suspended and the bill was ordered messaged to the Senate forthwith.

Bill Amended, Read Third Time and Passed

H. 135

House bill, entitled

An act relating to increasing the age for mandatory participation in the corrections systems education program;

Was taken up and pending third reading of the bill, Rep. Ancel of Calais  moved to amend the bill as follows:

First:  in Sec. 1, subsection (c), after the struck sentence, by adding a new sentence to read:  “Within the limits of funds made available for this specific purpose, the commissioner of education shall pay the costs of this program in excess of costs defined in subsection (d) of this section.”

Second:  in Sec. 1, subsection (d), by striking the final new sentence in its entirety

Third:  in Sec. 1, subdivision (e)(3), by striking the following: “, such as a general education development program or a program operated by a public high school, approved by” and inserting in lieu thereof the words “upon approval by”

Fourth:  by striking Sec. 2 in its entirety and inserting in lieu thereof a new Sec. 2 to read:

Sec. 2.   COMMUNITY HIGH SCHOOL OF VERMONT; SPECIAL EDUCATION; STUDY

On or before January 15, 2009, the commissioner of education and the commissioner of corrections shall report to the house and senate committees on education, the senate committee on judiciary, and the house committee on institutions and corrections regarding information gathered from the community high school of Vermont, and recommendations for future legislation.  The report shall include a description of the pupils served, current funding mechanisms, and a proposed funding mechanism to meet the general and special education needs of the pupils.

Which was agreed to.  Thereupon, the bill was read the third time and passed.

Third Reading; Bills Passed

House bills of the following titles were severally taken up, read the third time and passed:

H. 432

House bill, entitled

An act relating to establishing Juneteenth National Freedom Day;

H. 775

House bill, entitled

An act relating to low-profit limited liability companies;

H. 865

House bill, entitled

An act relating to Vermont Milk Commission.

Third Reading; Bill Passed in Concurrence

S. 257

Senate bill, entitled

An act relating to Medicaid coverage of naturopathic physicians;

Was taken up, read the third time and passed in concurrence.

Third Reading; Bill Passed in Concurrence

With Proposal of Amendment

S. 351

Senate bill, entitled

An act relating to consolidating management of public records;

Was taken up, read the third time and passed in concurrence with proposal of amendment.

Third Reading; Joint Resolution Adopted

J.R.H. 53

Joint resolution, entitled

Joint resolution urging Congress to address the dramatic rise of electronic payment interchange rates that merchants and consumer are assessed;

Was taken up, read the third time and adopted on the part of the House.

Bill Read Second Time;  Bill Amended; Third Reading Ordered

H. 867

Rep. Atkins of Winooski spoke for the committee on Government Operations.

House bill entitled

An act relating to health insurance plan coverage for athletic trainer services;

Having appeared on the Calendar one day for notice, was taken up and read the second time.

Pending the question, Shall the bill be read the third time? Rep. Atkins of Winooski moved to amend the bill as follows:

In Sec. 1, 8 V.S.A. § 4088f(a), by striking the first and second sentences in their entirety and inserting in lieu thereof new first and second sentences as follows: “To the extent a health insurance plan provides coverage for a particular type of health service or for any particular medical condition that is within the scope of practice of athletic trainers, a licensed athletic trainer who acts within the scope of practice authorized by law may bill the health insurer directly for those services.  A health insurer may require that the athletic trainer services be provided by a licensed athletic trainer under contract with the insurer.”

Which was agreed to and third reading ordered.

Bill Amended; Third Reading Ordered

H. 352

Rep. Trombley of Grand Isle, for the committee on General, Housing and Military Affairs, to which had been referred House bill, entitled

An act relating to reducing lead hazards in housing;

Reported in favor of its passage when amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND INTENT

The general assembly finds that:

(1)  Lead is highly toxic to humans, particularly to young children, and can cause irreversible damage resulting in long‑lasting, permanent neurological damage, such as decreases in I.Q. and conditions associated with school failure, delinquency, and criminal behavior.

(2)  Medical research shows that there is no safe level of lead, and that decreases in I.Q. are greatest for the first ten micrograms of lead per deciliter of blood in young children.

(3)  In February 2007, the Vermont department of health announced that it would lower the blood lead level that triggers governmental action from ten to five micrograms of lead per deciliter of blood.

(4)  In 2004, four percent of all Vermont children aged one and two years who received lead screening–or approximately 300 children–had blood lead levels at or above ten micrograms per deciliter.  Approximately one‑third or nearly 3,000 of all children tested had blood lead levels at or above five micrograms per deciliter.

(5)  The primary exposure to lead for Vermont children is lead‑based paint in housing built prior to 1978 when lead was banned in residential paint.   Vermont has over 112,000 owner‑occupied housing units and over 56,000 rental housing units built prior to 1978.

(6)  Vermont’s lead law, which has been in place since 1996, attempts to prevent exposing children to lead in rental housing by requiring that essential maintenance practices be performed in nearly all rental housing units built prior to 1978.  The only provisions that attempt to prevent lead poisoning in children in owner‑occupied housing are related to education.

Sec. 2.  18 V.S.A. § 1751 is amended to read:

§ 1751.  DEFINITIONS

(a)  Words and phrases used in this chapter or in rules adopted pursuant to this chapter and not defined herein shall have the meanings given to them have the same definitions as provided in the Federal Residential Lead‑Based Paint Hazard Reduction Act of 1992.  In the event of unless there is an inconsistency between meanings given in such federal act and meanings given in this chapter, the federal act shall apply except where meanings given in this chapter serve to narrow, limit or restrict the applicability of a word or phrase, in which cases the narrower meaning shall apply in which case, any definition provided in this section that narrows, limits, or restricts shall control.

(b)  For the purposes of this chapter:

(1)  “Abatement” means any set of measures designed to permanently eliminate lead‑based paint hazards in accordance with standards established by appropriate state and federal agencies.  The term includes:

(A)  the removal 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; and .

(B)  all All preparation, cleanup, disposal, and post‑abatement clearance testing activities associated with such measures.

(2)  “Certified inspector” or “licensed inspector” means an individual who has been trained by an accredited training program and certified by the department to perform the duties of an inspector or risk assessor. “Child” or “children” means an individual or individuals under the age of 18 years.

(3)  “Child care facility” means a day care facility or family day care home as defined in 33 V.S.A. § 4902 that was constructed prior to 1978.

(4)  “Commissioner” means the commissioner of the department of health.

(5)  “Comprehensive environmental lead inspection” or “inspection” “Inspection” means a surface‑by‑surface investigation to determine the presence of lead‑based paint and other lead hazards and the provision of a report explaining the results of the investigation.

(6)  “Department” means the department of health.

(7)(5)  “Deteriorated paint” means any interior or exterior lead‑based paint that is peeling, chipping, chalking, flaking, or cracking or any lead‑based paint located on an interior or exterior surface or fixture that is damaged or deteriorated.

(8)(6)  “Dwelling” means either of the following:

(A)  a single‑family dwelling, A detached family residential unit including attached structures such as porches and stoops; or.

(B)  a A single‑family dwelling residential unit in a structure that contains more than one separate residential dwelling unit, and which is used or occupied, or intended to be used or occupied, in whole or in part, as the home or residence of one or more persons.

(7)  “EMP” means essential maintenance practices required by section 1759 of this title.

(8)  “Elevated blood lead level” means having a blood lead level of five micrograms per deciliter of human blood, or a lower level as determined by the commissioner.

(9)  “Independent dust clearance” means a visual examination and collection of environmental samples, including dust samples, by a licensed inspector in whose firm or corporation lead inspector or lead assessor who has no financial interest in and is independent of both the person performing the work and the owner of the property to be inspected has no financial interest.  The licensed inspector lead inspector or lead assessor shall use methods specified by the department and analysis by an accredited laboratory to determine that lead exposures do not exceed limits set by the department utilizing current information from the U.S. Environmental Protection Agency or the U.S. Department of Housing and Urban Development.

(10)  “Interim controls” means a set of measures designed to temporarily reduce human 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 of management and resident education programs.

(11)  “Lead‑based paint” means paint or other surface coatings that contain lead in excess of limits established under section 302(c) of the Federal Lead‑Based Paint Poisoning Prevention Act.

(12)  “Lead contractor” means any person engaged in deleading or lead hazard reduction as a business and includes consultants and inspectors who design, perform, oversee or evaluate lead hazard reduction projects employing one or more individuals licensed by the department under this chapter.

(13)  “Lead‑based paint activities” means:

(A)  in the case of target housing, risk assessment, inspection, and abatement.

(B)  in the case of any public building constructed before 1978, identification of lead‑based paint and materials containing lead‑based paint, deleading, and demolition.  The term “lead‑based paint activities” may be further limited or restricted by rule adopted by the secretary. “Lead abatement worker” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to perform abatements.

(14)  “Lead designer” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to prepare lead abatement project designs, occupant protection plans, and abatement reports.

(14)(15) “Lead‑based paint hazard” or “LBP” “Lead hazard” means any condition that causes exposure to lead inside and in the immediate vicinity of target housing from water, lead‑contaminated dust, lead‑contaminated soil, lead‑contaminated paint that has deteriorated or is present in accessible surfaces, friction surfaces, or impact surfaces, or building materials that would result in adverse human health effects as defined by the department using current information from the U.S. Environmental Protection Agency or the U.S. Department of Housing and Urban Development.

(15)  “Lead‑based paint hazard control” or “LBP hazard control” or “lead hazard control” means a measure or set of measures designed to control or eliminate human exposure to lead‑based paint hazards through methods that include interim controls, abatement, and complete removal.

(16)  “Lead poisoning” means a confirmed blood lead level in a child six years of age or younger greater than or equal to ten micrograms of lead per deciliter of whole blood, unless the commissioner finds by rule that a higher or lower concentration is necessary to protect public health. “Lead inspector” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to conduct inspections.

(17)  “Lead risk assessor” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to conduct risk assessments.

(18)  “Lead‑safe renovator” means any person who has completed a lead‑safe training program approved by the department and has a current registration issued by the department to perform renovations in target housing or child care facilities in which interior or exterior lead‑based paint will be disturbed.

(19)  “Lead supervisor” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to supervise and conduct abatement projects and prepare occupant protection plans and abatement reports. 

(17)(20)  “Occupant” means any person who resides in, or regularly uses, a dwelling, car mobile dwelling unit, or structure.

(18)(21)  “Owner” means any person who, alone or jointly or severally with others:

(A)  Has legal title to any dwelling or dwelling unit or child care facility with or without accompanying actual possession thereof; or of the property.

(B)  Has charge, care, or control of any dwelling or dwelling unit or child care facility as agent of the owner or guardian of the estate of the owner.  An agent of the owner does not include real estate and property management functions where the agent is only responsible for the property management and does not have authority to fund capital or major property rehabilitation on behalf of the owner.

(C)  For purposes of publicly‑owned property only, the owner shall be the Is the chief executive officer of the municipal or state agency which that owns, leases, or controls the use of the publicly owned property.

(D)  A Is a person who holds indicia of ownership in a dwelling or dwelling unit or child care facility furnished by the owner or person in lawful possession for the primary purpose of assuring repayment of a financial obligation shall not be considered an owner unless such person has taken full legal title of a dwelling or child care facility through foreclosure, deed in lieu of foreclosure, or otherwise.  “Owner” does not include a person who holds indicia of ownership given by the person in lawful possession for the primary purpose of assuring repayment of a financial obligation.  Indicia of ownership includes interests in real or personal property that are held as security or collateral for repayment of a financial obligation such as a mortgage, lien, security interest, assignment, pledge, surety bond or guarantee and includes   participation rights of a financial institution used for legitimate commercial purposes in making or servicing the loan.

(E)  Owns a building in which a child care facility is located or owns the child care business, although the owner of the child care business may not own the building.

(19)(22)  “Rental target housing” means target housing offered for lease or rental under a rental agreement as defined in 9 V.S.A. § 4451.  “Rental target housing” does not include a rented single room located within a residential dwelling unit in which the owner of the dwelling unit resides unless a child six years of age or younger resides in or is expected to reside in that dwelling unit.

(20)(23)  “Risk assessment” means an on‑site investigation by a licensed inspector or risk assessor lead risk assessor to determine and report the existence, nature, severity, and location of lead‑ based paint lead hazards, including information gathering about the age and history of the property and occupancy by children under the age of six years, visual inspection, limited wipe sampling, or other environmental sampling techniques, other appropriate risk assessment activities and a report on the results of the investigation.

(21)  “Secretary” means the secretary of the agency of human services.

(22)  “Severely lead‑poisoned” means a confirmed venous blood lead level in a child six years of age or younger that is greater than or equal to 20 micrograms of lead per deciliter of whole blood or as defined by the commissioner.

(23)  “State inspector” means the commissioner or any person who is authorized in writing by the commissioner to conduct inspections for the department.

(24)  “Screen,” “screened,” or “screening” relating to blood lead levels, means the initial blood test to determine the presence of lead in a human.

 (24)(25)  “Target housing” means any dwelling or dwelling unit constructed prior to 1978 and used as a residence, except any 0‑bedroom residential dwelling unit or any residential dwelling unit located in multiple‑unit buildings or projects reserved for the exclusive use of the elderly or persons with disabilities, unless a child six years of age or younger resides in or is expected to reside in that housing.   “Target housing” does not include units in a hotel, motel, or other lodging, including condominiums, that are designed and rented for transient occupancy for travelers or vacationers and not intended to be used as a primary residence 30 days or less.

Sec. 3.  18 V.S.A. § 1752 is amended to read:

§ 1752.   ACCREDITATION OF TRAINING PROGRAMS;
  CERTIFICATION, REGISTRATION AND LICENSURE OF
ENVIRONMENTAL LEAD INSPECTORS AND LEAD
CONTRACTORS, SUPERVISORS AND WORKERS

(a)  No later than six months after promulgation of final federal regulations under section 402 of the Federal Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the The department shall develop a program to administer and enforce the lead‑based paint activities training and certification standards, regulations, or requirements of this chapter and other requirements as established by the administrator of the federal Environmental Protection Agency for persons engaged in lead‑based paint lead abatement activities.  The commissioner shall adopt rules to implement and enforce this chapter, including establishing standards and specifications for registration, licensing, issuing a certificate, and accreditation of training programs both within and outside Vermont.

(b)  The secretary shall adopt emergency rules, and not later than January 1, 1994, the secretary shall adopt permanent rules, establishing standards and specifications for the accreditation of training programs both within and outside Vermont, including the mandatory topics of instruction, the knowledge and performance standards that must be demonstrated by graduates in order to be certified, and required qualifications for training programs and instructors. Such standards shall be designed to protect children, their families, and workers from improperly‑conducted lead‑based paint activities, and shall be at least as protective of human health and the environment as the federal program.  Hands‑on instruction and instruction for identification and proper handling of historic fabric and materials shall be components of the required training. The commissioner shall issue certificates to all persons who satisfactorily complete an essential maintenance practices training program for lead hazard control, approved by the commissioner.

(c)  The commissioner shall certify risk assessors, designers, issue registrations and licenses to laboratories, inspectors, lead contractors, supervisors, abatement workers, and other persons engaged in lead‑based paint activities when such persons individuals, and firms, provided they have successfully completed an accredited a training program approved by the commissioner and met such other requirements as the secretary may, by rule, impose complied with all registration and licensing criteria required by the commissioner.

(d)  After the adoption of rules pursuant to subsection (b) of this section, no No person shall perform for compensation of any kind engage in any activity likely to disturb more than one square foot of lead‑based paint activities without first registering or obtaining a license from the commissioner, as provided in this section.  The commissioner may grant a license to a person who holds a comparable valid license from another state.

(e)  Nothing in this chapter shall be construed to limit the authority of the secretary, the commissioner of health, the commissioner of labor, or the commissioner of environmental conservation under the provisions of any other law.

Sec. 4.  18 V.S.A. § 1754 is amended to read:

§ 1754.  PUBLIC EDUCATION

(a)  Beginning January 1, 1994, the The commissioner of health shall prepare and distribute clear and simple printed materials describing the dangers of lead poisoning, the need for parents to have their child children screened, how to have a child tested and receive a confirmation test, recommended nutrition and housekeeping practices, and materials on other lead hazards in housing, identifying possible sources of lead exposure in housing in addition to lead‑based paint, and describing methods for addressing those sources.  The commissioner shall work with persons and organizations involved in occupations that may involve lead‑based paint hazards or childhood lead poisoning to distribute the materials to their clients, patients, students, or customers whose work involves disturbance of lead‑based paint or preventing and treating elevated blood lead levels in humans, such as realtors, subcontractors, apartment owners, public housing authorities, pediatricians, family practitioners, nurse clinics, child clinics, other health care providers, child care and preschool operators, and kindergarten teachers to encourage them to distribute the materials to their clients, patients, students, or customers.  The commissioner shall also identify those points in time or specific occasions, when members of the public are in contact with public agencies and lead might be an issue, such as building permits, home renovations, and the ANFC and WIC appropriate state and federal programs, and make the materials available on these occasions.

(b)  The commissioner shall prepare an appropriate media campaign to educate the public on lead poisoning prevention.  The commissioner shall encourage professional property managers, rehab rehabilitation and weatherization contractors, minimum housing inspectors, social workers, and visiting nurses to attend education and awareness workshops.

(c)  The commissioner shall develop a program or approve a program, or both, to train owners and managers of rental target housing and child care facilities and their employees to perform essential maintenance practices.  The names and addresses of all persons who attend the approved training program shall be maintained as a public record that the commissioner shall provide to the department of housing and community affairs.

Sec. 5.  18 V.S.A. § 1755 is amended to read:

§ 1755.  UNIVERSAL ACCESS TO SCREENING

(a)  Not later than November 1, 1993, the The commissioner shall publish the results of the department’s lead poisoning prevalence study.  Not later than January 1, 1994, the commissioner shall publish and the guidelines establishing that establish the methods by which and the intervals at which children under six years of age are recommended to should be screened and tested given a confirmation test for blood lead poisoning, according to the age of the children and their probability of exposure to high‑dose sources of lead.  The guidelines shall take into account the recommendations of the U.S. Centers for Disease Control and the American Academy of Pediatrics and shall be updated as those recommendations are changed.  The commissioner may also shall recommend screening for lead poisoning in other high risk groups.

(b)  Not later than January 1, 1994, the Vermont  the commissioner of banking, insurance, securities, and health care administration shall recommend to the general assembly whether lead screening should be a common benefit under the universal access proposals it has presented, and, if so, how such benefits should be financed.  The cost of implementing the Vermont commissioner of banking, insurance, securities, and health care administration’s plan under this chapter shall be included in the unified health care budget to be adopted by the authority effective July 1, 1994.

(c)  Beginning July 1, 1994, all All health care providers who provide primary medical care shall ensure that parents and guardians of children below the age of six are advised of the availability and advisability of screening and testing their children for lead poisoning in accordance with the commissioner’s guidelines,:

(1)  Screen all children one‑ and two‑years old for lead unless the parent or guardian of the child objects on the grounds that the procedure conflicts with the parent or guardian’s moral or religious tenets or practices.

(2)  Conduct a confirmation test of blood lead levels by venous draw for any child whose screening results are ten micrograms of lead per deciliter of blood or more.

(d)(c) Any health care provider or employee thereof making the diagnosis of lead poisoning shall report such diagnosis to the department within such time and using such format as the department shall prescribe.  Any laboratory in Vermont which that analyzes blood samples of children below the age of six Vermont residents for lead levels shall report to the department such all information on blood lead analyses as required by the department may require including data on the number and results of blood lead analyses performed by the laboratory.  All health care providers who analyze blood samples for lead levels or who use laboratories outside Vermont to analyze blood samples of children below the age of six for lead levels shall report to the department such all information as required by the department may require including data on the number and results of such blood lead tests.  The commissioner shall establish procedures to ensure the confidentiality of the children and families.  All blood lead data reports to the department shall include the name, date of birth, date of blood test, and address of the individual whose blood is analyzed and, if known, the owner of the residence of the individual.

(e)  After the guidelines established pursuant to subsection (a) of this section have been in place for two years, the commissioner shall determine the percentage of children below the age of six who are being screened in accordance with those guidelines.  If fewer than 75 percent of such children are receiving such screening, the secretary shall adopt rules to require that all health care providers who provide primary medical care to young children shall ensure that their patients are screened and tested according to the commissioner’s guidelines beginning January 1, 1997.  Such rules shall provide that no screening or testing shall be required pursuant to this subsection if the parent or guardian of the child objects to the child undergoing blood lead screening on the grounds that such screening conflicts with their moral or religious tenets or practices.

Sec. 6.  18 V.S.A. § 1756 is amended to read:

§ 1756.  ANNUAL REPORT 

(a)  The commissioner shall, at least annually, on or before October 15, analyze and summarize all aggregate the information collected during the previous fiscal year relating to lead screening and confirmation testing information provided by physicians, health care facilities, and laboratories and shall provide this information to all other local and state agencies involved with case management and lead hazard reduction.

(b)  The commissioner shall also at least annually on or before October 15 provide to the general assembly, the health community, and the general public an analysis and summary of such data, collected during the previous fiscal year, and a progress report on the commissioner’s efforts to prevent elevated blood lead poisoning in young children levels in a format that is easily understandable to nontechnical readers.  The report shall include:

(1)  The number and percentage of children under the age of six who have been screened and tested for lead poisoning had a confirmation test, and the number found to have lead poisoning at various blood lead levels of those children.

(2)  Estimates of the public and private costs incurred since July 1, 1993 to prevent, correct, or treat lead poisoning.

(3)  An analysis of barriers to universal blood screening of children under the age of six years.

(3)  The number of home visits conducted, work plans issued, and the number and nature of enforcement actions taken based on elevated blood lead levels.

(4)  Any report to the general assembly required by subsection 1757(d) of this title.

(5)  The number of annual EMP compliance certifications filed with the department.

(6)  The number and blood lead levels of all individuals not included in subdivision (1) of this subsection.

(7)  The commissioner’s recommendations for action.

Sec. 7.  18 V.S.A. § 1757 is amended to read:

§ 1757.  LEAD POISONED CHILDREN

(a)  Upon receiving a report that a child under age six has been diagnosed by a qualified physician to have lead poisoning, the a screening test result of ten or more micrograms of lead per deciliter of blood, or a lower level as determined by the commissioner, the commissioner shall take prompt action to confirm the diagnosis ensure that the child obtains a confirmation test pursuant to subsection 1755(b) of this title.

(b)  If the child is severely lead poisoned has an elevated blood lead level, the commissioner shall provide for information on lead hazards to the parents or guardians of the child.

(c)  If the child has a confirmed blood lead level at or above ten micrograms of lead per deciliter of blood and if resources permit, the commissioner:

(1)  Shall provide an inspection of the dwelling unit occupied by the child or the child care center the child attends, by a state inspector or licensed private inspector lead risk assessor, and a plan developed in consultation with the parents, owner, physician, and others involved with the child to minimize the exposure of the child to lead.  The plan developed under this subdivision shall require that any lead hazards identified through the inspection be addressed through interim controls or abatement.

(2)  The commissioner may May inspect and evaluate other dwelling units in a the building in which a severely lead‑poisoned the child has been identified as is living and if it is reasonable to believe that a child under the age of six occupies, receives care, or otherwise regularly frequents the other dwelling units in that building.

(3)  Shall promptly take necessary action to ensure compliance with this section including appropriate enforcement action.  If the commissioner finds a violation of section 1759 of this title, a civil penalty shall be assessed.

(c)  The commissioner shall work with the parents, owner, physician, and others involved with the child to develop a plan to minimize exposure of the child to lead hazards.

(d)  Concerning target housing which is rented or leased, on or before January 1, 1994, the secretary with the concurrence of the commissioner of housing and community affairs shall adopt rules to implement this section including rules which assure that prompt action will be taken to confirm a lead poisoning diagnosis, to inspect the possible sources of lead poisoning, and to secure voluntary compliance or to take necessary enforcement action. Enforcement action shall include providing the child’s parents or guardians and the owner of the dwelling unit with appropriate educational materials on lead poisoning prevention and may include requiring the owner of the dwelling unit to initiate interim controls or abatement of lead‑based paint hazards within a specified time. If resources do not permit the commissioner to provide the inspection and plan pursuant to subsection (b) of this section for at least 80 percent of the children with a confirmed blood lead level at or above ten micrograms of lead per deciliter of blood during any fiscal year, the commissioner shall submit a special report on this lack of resources to the general assembly no later than October 15 following the end of that fiscal year.

(e)  Nothing in this section shall be construed to limit the commissioner’s authority under any other provision of Vermont law.

Sec. 8.  18 V.S.A. § 1758 is amended to read:

§ 1758.  HOUSING REGISTRY LEAD HAZARD DATA

(a)  The department shall issue certificates to all persons who satisfactorily complete a training program on performing essential maintenance practices for lead‑based hazard control and shall compile a list of those persons’ the names of all persons who satisfactorily complete a training program on essential maintenance practices, lead‑safe renovation, and any other lead hazard training programs authorized by the department.

(b)  If additional funds are appropriated to the department in fiscal year 1998, on or before October 1, 1997, the department of housing and community affairs shall establish and maintain a list of housing units which (1) are lead free or (2) have undergone lead hazard control measures and passed independent dust clearance tests. The registry shall be maintained as a public record.

(c)  The department of social and rehabilitation services for children and families, child development division shall identify all child care facilities in which the owners have completed essential maintenance practices or lead hazard control measures and provide the findings to the department annually.

Sec. 9.  18 V.S.A. § 1759 is amended to read:

§ 1759.  ESSENTIAL MAINTENANCE PRACTICES

(a)  For the purposes of this section, all All paint in target housing and child care facilities is presumed to be lead‑based unless a certified lead inspector or lead risk assessor has determined that it is not lead‑based.  All owners of rental target housing and child care facilities shall perform the Essential maintenance practices in rental target housing and child care facilities shall be performed only by a person who has successfully completed an EMP training program approved by the commissioner or a person who works under the direct, on‑site supervision of a person who has successfully completed such training.  That person shall comply with section 1760 of this title and shall take all reasonable precautions to avoid creating lead hazards during any renovations, remodeling, maintenance, or repair project that disturbs more than one square foot of lead‑based paint, pursuant to guidelines issued by the department.  The following essential maintenance practices on their property shall be performed in all rental target housing and child care facilities, unless a lead inspector or a lead risk assessor has certified that the property is lead‑free:

(1)  Take all reasonable precautions to avoid creating lead hazards during any renovation, remodeling, maintenance, or repair project that disturbs a lead‑based painted surface pursuant to guidelines issued by the department. The guidelines shall include the following requirements:

(A)  A prohibition against lead‑based paint removal by burning, water blasting, dry scraping, power sanding, or sandblasting, unless authorized by the department.

(B)  Use of good work practices and safety precautions to prevent the spread of lead dust, including limiting access to work areas to workers, covering the work area with six mil polyethylene plastic or the equivalent, wearing of protective clothing by workers, protecting belongings of occupants by covering or removing them from the work area, misting painted surfaces before disturbing the paint, and wetting sweeping debris.

(C)  At the conclusion of the work, specialized cleaning of the work area shall be performed shall be thoroughly cleaned using methods designed to remove lead dust and recommended by the department.

(2)  Perform visual on‑site inspections of all interior and exterior surfaces and fixtures of the building to identify deteriorated paint and install window well inserts into all windows, or protect window wells by another method approved by the department, no later than July 1, 1998; thereafter, visual on‑site inspections shall be performed annually and upon a change of tenant. Install window well inserts in all windows, or protect window wells by another method approved by the department.

(3)(2)  At least once a year and at each change of tenant, and annually in units in which a child six years of age or younger resides clean all window wells and window sills within the unit and in all areas of the building to which access by tenants is not restricted by the rental agreement.  The cleaning shall be accomplished by using cleaning methods, products, and devices that are effective in the removal of lead‑contaminated dust and recommended by the department perform visual on‑site inspection of all interior and exterior painted surfaces and components at the property to identify deteriorated paint.

(4)(3)  Promptly and safely remove or stabilize lead‑based paint if more than one square foot of deteriorated lead‑based paint is found on any interior or exterior surface located within any area of the building property to which access by tenants is not restricted by the rental agreement or on any exterior porch or an exterior wall, surface or fixture within the exterior porch.  An owner shall restore the assure that all surfaces to be are free of deteriorated lead‑based paint within 30 days after deteriorated lead‑based paint has been visually identified or within 30 days after receipt of a written or oral report of deteriorated lead‑based paint from any person including the department, a tenant, or from an owner of a child care facility.  If Because exterior paint repairs cannot be completed in cold weather, any exterior repair work is identified after November 1 of any year, the repair may be delayed for completion until shall be completed no later than the following May 31 of the following year provided that access to surfaces and components with lead hazards and areas directly below the deteriorated surfaces is restricted by the use of physical barriers or other methods approved by the department.

(5)(4)  If more than one square foot of deteriorated paint is found on any exterior wall surface or fixture not covered by subdivision (4)(3) of this subsection and is located in an area frequented by children six years of age or younger in warm weather, the owner shall:

(A)  promptly and safely repair and stabilize the paint and restore the surface; or

(B)  prohibit access to the area, surface, or fixture to assure that children will not come into contact with the deteriorated lead‑based paint.

(5)  Annually remove all visible paint chips from the ground on the property and assure that any bare soil within four feet of buildings is inaccessible by using any appropriate and effective method, including fencing, groundcover, or other vegetation, or covering the bare soil with stone or other materials recommended by the department. 

(6)  At least once a year, using methods recommended by the department, thoroughly clean all interior horizontal surfaces, except ceilings, in common areas accessible to tenants.

(6)(7) Provide written LBP hazard information prepared or approved by the department to current and prospective tenants and current and prospective owners of child care facilities. At each change of tenant, thoroughly clean all interior horizontal surfaces of the dwelling unit, except ceilings, using methods recommended by the department.

(7)(8)  Post, in a prominent place in buildings containing rental target housing units or a child care facility, a notice to occupants emphasizing the importance of promptly reporting deteriorated paint to the owner or to the owner’s agent.  The notice shall include the name, address, and telephone number of the owner or the owner’s agent.

(8)  Attend a training program offered or approved by the department.  The training, which shall be available to any person who repairs, remodels or renovates property, shall be attended by the owner, the owner’s property manager, or a representative of the owner’s regular maintenance staff.

(9)  Ensure that any person who performs essential maintenance work has completed a department‑approved training program or is being supervised on‑site by a person who has completed the training program and complies with the essential maintenance practices.

(10)  At each change of tenant, the owner shall clean all horizontal surfaces, except ceilings, within all areas of the building used by tenants and not otherwise restricted by the rental agreement.  This cleaning shall be done by using cleaning methods, products and devices prescribed by the department that are effective in cleaning up lead‑contaminated dust, such as vacuum cleaners with HEPA filters, and wet‑cleaning with trisodium phosphate or other lead specific detergents.

(b)  The owner of rental target housing or a child care facility shall perform all the following:

(1)  When the essential maintenance practices are completed, the owner shall sign an affidavit indicating that, to the best of the owner’s knowledge and belief EMP compliance statement certifying that the essential maintenance practices have been performed, including the addresses of the units in which EMPs were performed, the dates they were completed, and by whom they were of completion, and the person who performed the EMPs, and that subdivisions (2) and (3) of this subsection have been or will be complied with.  The owner shall file the affidavit

(2)  File the statement required in subdivision (1) of this subsection with the owner’s liability insurance carrier and the department, and shall provide a copy of the statement to all tenants.  Annually, the owner shall conduct a visual check, perform required essential maintenance practices, and sign and file an affidavit as required by this subsection.

(3)  Provide current and prospective tenants with written information regarding lead hazards approved by the department at the time the owner provides the tenant with the EMP compliance statement.

Sec. 10.  18 V.S.A. § 1760 is amended to read:

§ 1760.   CERTIFICATION; RULES; REPORT; FUTURE DEPARTMENT
UNSAFE WORK PRACTICES

(a)  No later than January 1, 1997, the secretary shall adopt rules that establish methods and practices to be used by licensed inspectors who certify that target housing and child care facilities are lead free or have had lead‑based paint hazards identified and controlled and have passed independent dust clearance tests.  The rules shall include the duration of validity of any certifications and requirements for renewal of certifications.

(b)  By January 1, 1999, the secretary shall report to the general assembly on the need for additional essential maintenance practices or other actions to further prevent lead poisoning in children based on significant:

(1)  Reductions in the number and percentage of poisoned and severely lead‑poisoned children.

(2)  Increases in the number and percentages of owners of rental target housing that have performed essential maintenance practices.

(3)  Increases in the number and percentage of housing units that have achieved higher levels of lead hazard control.

(4)  Advances in lead poisoning prevention technology.

(5)  Impact of public education efforts in reducing the lead levels of children at risk.

(c)  After July 1, 2000, the secretary may adopt rules for the low cost and cost effective implementation of the essential maintenance practices established in section 1759 of this title and additional recommended low cost and cost effective essential maintenance practices and other actions to further prevent lead poisoning in children.

(a)  No person shall disturb more than one square foot of lead‑based paint using unsafe work practices.  The commissioner may include additional unsafe work practices by rule.  Unsafe work practices include the following, unless specifically authorized by the department:

(1)  Removing lead‑based paint by:

(A)  Open flame burning or torching.

(B)  Use of heat guns operated above 1100 degrees Fahrenheit.

(C)  Dry scraping.

(D)  Machine sanding or grinding.

(E)  Uncontained hydro‑blasting or high pressure washing.

(F)  Abrasive blasting or sandblasting without containment and high‑efficiency particulate exhaust controls.

(G)  Chemical stripping using methylene chloride products.

(2)  Failing to employ one or more of the following lead‑safe work practices: 

(A)  Limiting access to interior and exterior work areas.

(B)  Enclosing interior work areas with plastic sheathing or other effective lead dust barrier.

(C)  Using protective clothing.

(D)  Misting painted surfaces before disturbing paint.

(E)  Wetting paint debris before sweeping to limit dust creation.

(F)  Any other measure required by the department.

(b)  If it is determined that a person is disturbing lead‑based paint using unsafe work practices, the commissioner may require the person to cease work and to take action necessary to terminate or mitigate lead hazards.  The order shall identify the unsafe work practice, the location of the work being performed, and the person performing the work.

(c)  No person shall perform, or hire another person to perform, any work for compensation of any kind in any target housing or child care facility if the work is likely to disturb more than one square foot of lead‑based paint unless the person hired holds a current registration or license issued by the department applicable to the work to be performed.

(d)  No person shall perform any renovation in target housing or child care facility for compensation without complying with the pre‑renovation notification requirements pursuant to rules of the U.S. Environmental Protection Agency. 

Sec. 11.  18 V.S.A. § 1760a is added to read:

§ 1760a.  ENFORCEMENT; ADMINISTRATIVE ORDER; PENALTIES

(a)  The commissioner may issue an administrative order when the commissioner determines that there has been a violation of this chapter.  The order shall be served on the respondent in person or by certified mail, return receipt requested, and a copy of the order shall be provided to the attorney general.  An order shall be effective on receipt unless stayed by court order.  An administrative order shall include:

(1)  A statement of the facts that provide the basis for the violation.

(2)  Identification of the applicable statute, rule, permit, assurance, work plan, or order.

(3)  Rights of appeal pursuant to subsection (d) of this section.

(4)  Notice that injunctive relief in the order is effective on receipt unless stayed by court order.

(5)  The amount of any administrative penalty.

(6)  Suspension of registration, certification, or licensure, if any.

(7)  Applicable directives for actions to address any violations described in the order.

(b)  A person who violates a provision of this chapter in target housing or a child care facility shall be subject to an administrative penalty of not more than $10,000.00 for each violation or for each day of a continuing violation.  A violator may be subject to any other available enforcement proceedings, remedies, and penalties.  In assessing a penalty, the commissioner shall consider at least the following:

(1)  The degree of actual or potential impact on public health resulting from the violation.

(2)  The confirmed elevated blood lead level of the child who occupies or regularly frequents the property.

(3)  The extent of the violator’s knowledge of the violation.

(4)  The respondent’s record of compliance with essential maintenance practice requirements.

(5)  Any economic gain derived from the violation, including the estimated costs avoided by noncompliance.

(6)  The deterrent effect of the penalty on the violator and the regulated community.

(7)  The cost to the state of investigation, enforcement, and attorney fees.

(8)  The length of time the violation has existed.

(9)  Any other relevant factors. 

(c)  In lieu of part or all of a civil penalty, the commissioner may accept a contribution to the lead hazard education and cleanup fund.  Penalties or payments paid in lieu of penalties paid pursuant to this section shall be deposited in the lead hazard education and cleanup fund.

(d)  A person may appeal a violation determination and penalty to the superior court within 30 days after the determination is issued.  The superior court review shall be de novo and pursuant to Rule 74 of the Vermont Rules of Civil Procedure. 

(e)  The commissioner may refer violations of this chapter to the attorney general for civil or criminal enforcement.

(f)  The attorney general shall bring the case in the name of the state of Vermont.

(g)  In any civil action brought pursuant to this section in which a temporary restraining order or preliminary injunction is sought, relief shall be obtained upon a showing that there is the probability of success on the merits, and that a violation exists or a violation is imminent and likely to result in substantial harm.  There is no requirement to demonstrate immediate and irreparable injury, loss, or damage for an action under this subsection.

(h)  The attorney general may seek all equitable and legal remedies available, including civil penalties.

(i)  The court shall assess civil penalties pursuant to subsections (b) and (c) of this section.

(j)  Nothing in this section shall limit the commissioner’s authority under any other provision of law.

Sec. 12.  18 V.S.A. § 1761 is amended to read:

§ 1761.  DUTY OF REASONABLE CARE; NEGLIGENCE; LIABILITY

(a)  Owners of target housing and owners of child care facilities shall take reasonable care to prevent exposure to, and the creation of, lead‑based paint lead hazards.  In an action brought under this section, evidence of actions taken or not taken to satisfy the requirements of this chapter, including performing essential maintenance practices, may be admissible evidence of reasonable care or negligence.

(b)  Any person who suffers an injury proximately caused by an owner’s breach of this duty of reasonable care shall have a cause of action to recover damages and for other appropriate equitable relief.

(c)  A person who is severely lead poisoned as a result of a violation of the duty of reasonable care before the age of six, or a parent, legal guardian or other person authorized to act on behalf of that person, shall have a cause of action to recover damages and other appropriate relief.

(d)  The owner of target housing or a child care facility who has reduced lead‑based paint lead hazards by completing risk assessment and controls and who has had a licensed inspector a lead risk assessor certify, pursuant to rules under section 1760 of this title, that identified lead‑based paint lead hazards have been controlled in target housing or child care facility premises and the housing or facility contains no lead‑contaminated dust shall not be liable for injury or other relief claimed to be caused by exposure to lead during the time period covered by the certification.

This immunity does not apply if:

(1)  there was fraud in the certification process; or

(2)  the owner violated conditions of the certification; or

(3)  the owner created lead‑based paint lead hazards during renovation, remodeling, maintenance, or repair after the certification; or

(4)  the owner failed to respond in a timely fashion to notification that lead‑based paint lead hazards may have recurred on the premises.

(e)(d)  A defendant in an action brought under this section has a right of contribution from any other person or persons who have violated subsection (a) of this section.

(f)(e)  The remedies provided under this section shall be the exclusive remedies against owners arising from lead‑based paint lead hazards, except for the following:

(1)  causes of action under 9 V.S.A. chapter 63;

(2)  causes of action for relief under 9 V.S.A. § 4458; and

(3)  common law actions for fraud or fraudulent misrepresentation.

(g)(f)  Nothing in this section shall be construed to limit the right of the commissioner or any agency or instrumentality of the state of Vermont to seek remedies available under any other provision of Vermont statutory law.

(h)(g)  In an action under 9 V.S.A. § 4458, compliance by the landlord with the duties required under section 1759 of this title shall create a conclusive presumption of habitability with respect to lead‑based paint hazards.  However, if a child under the age of six who occupies or regularly frequents the dwelling is lead poisoned as defined in subdivision 1751(b)(16) of this title has a confirmed elevated blood lead level, this presumption shall be rebuttable, not conclusive.  Presumptions under this subsection shall be limited to actions based on a breach of the warranty of habitability under 9 V.S.A. § 4458.

(i)  This section shall apply only to actions arising from acts or omissions that occur on or after July 1, 1996.

Sec. 13.  18 V.S.A. § 1762 is amended to read:

§ 1762.  SECURED LENDERS AND FIDUCIARIES; LIABILITY

(a)  A person who holds indicia of ownership in rental target housing or a child care facility furnished by the owner or person in lawful possession, for the primary purpose of assuring repayment of a financial obligation and takes full legal title through foreclosure or deed in lieu of foreclosure or otherwise shall not be liable as an owner of the property for injury or loss claimed to be caused by exposure to lead of a child on the premises, provided that, on or before the 120th day after the date of possession, the person completes all the following:

(1)  performs essential Essential maintenance practices as required by section 1759 of this title; and .

(2)  fully discloses Full disclosure to all potential purchasers, child care facility operators or tenants of the property of any information in the possession of such the person or the person’s agents, regarding the presence of lead‑based paint lead hazards or a lead‑poisoned child on the property and, upon request, provides, including providing copies of all written reports on lead‑based paint lead hazards to potential purchasers, operators, or tenants.

(b)  The immunity provided in subsection (a) of this section shall expire 365 days after the secured lender or fiduciary takes full legal title.

(c)  A person who holds legal title to rental target housing or a child care facility as an executor, administrator, trustee, or the guardian of the estate of the owner, and demonstrates that in that fiduciary capacity does not have either the legal authority or the financial resources to fund capital or major property rehabilitation necessary to conduct essential maintenance practices shall not be personally liable as an owner for injury or loss caused by exposure to lead by a child on the premises.  However, nothing in this section shall limit the liability of the trust estate for such claims and those claims may be asserted against the trustee as a fiduciary of the trust estate.

Sec. 14.  18 V.S.A. § 1763 is amended to read:

§ 1763.   PUBLIC FINANCIAL ASSISTANCE; RENTAL TARGET
HOUSING AND CHILD CARE FACILITIES

Every state agency or instrumentality that makes a commitment to provide public financial assistance for the purchase or rehabilitation of rental target housing or child care facilities shall give priority to projects in which the property is lead free, the lead hazards have been or will be identified and abated, or lead‑based paint the lead hazards have been or will be identified and controlled and have passed or will pass an independent dust clearance test that determines that the property contains no lead‑contaminated dust prior to occupancy or use.  Priority rental target housing projects may include units occupied by severely lead‑poisoned children with a confirmed venous blood lead level at or greater than ten micrograms of lead per deciliter or at a lower level as determined by the commissioner and units in a building that are likely to contain lead‑based paint lead hazards.  For purposes of this section, “public financial assistance” means any grant, loan, or allocation of tax credits funded by the state or the federal government, or any of their agencies or instrumentalities.

Sec. 15.  18 V.S.A. § 1764 is amended to read:

§ 1764.  LEAD INSPECTORS; FINANCIAL RESPONSIBILITY FOR LEAD HAZARD CONTROL ACTIVITIES

The commissioner may require that a registrant, licensee, or an applicant for a registration or license under section 1752(d) 1752 of this title provide evidence of ability to properly indemnify a person who suffers damage from lead‑based paint the registrant’s or licensee’s activities such as proof of effective liability insurance coverage or a surety bond in an amount to be determined by the commissioner which shall not be less than $300,000.00.  This section shall not restrict or enlarge the liability of any person under any applicable law.

Sec. 16.  18 V.S.A. § 1765 is amended to read:

§ 1765.  LIABILITY INSURANCE

(a)  If the commissioner of banking, insurance, securities, and health care administration determines that lead‑based paint lead hazards have substantially diminished the availability of liability insurance for owners of rental property or child care facilities and that a voluntary market assistance plan will not adequately restore availability, the commissioner shall order liability insurers to provide or continue to provide liability coverage or to participate in any other appropriate remedial program as determined by the commissioner, provided the prospective insured is otherwise in compliance with the provisions of this chapter.

* * *

Sec. 17.  18 V.S.A. § 1766 is added to read:  

§ 1766.  LEAD HAZARD EDUCATION AND CLEANUP FUND

(a)  A fund to be known as the lead hazard education and cleanup fund is created in the state treasury shall be administered by the Vermont housing and conservation board to assist Vermont families and property owners to control lead hazards in housing.  The board shall administer the fund in compliance with 10 V.S.A. § 312 and the policies and priorities of the board lead‑based paint hazard reduction program with particular attention to targeting resources, promoting primary prevention in order to maximize both the number of young children protected from exposure to lead hazards and the number of homes made safe from lead hazards.  Disbursement may be authorized to fund any of the following:

(1)  Free or reduced rate training on essential maintenance practices and lead‑safe work practices for property owners, contractors, child care facility operators and other appropriate persons.

(2)  Public education and outreach.

(3)  Costs minimally necessary to administer the fund.

(4)  Technical assistance to Vermont property owners to identify and control housing‑based lead hazards.

(5)  Collection and analysis of environmental samples.

(6)  Grants and loans to property owners to control lead hazards in housing units likely to be inhabited by families with young children.

(b)  The fund shall consist of loan repayments, recovered disbursements, donations, gifts, administrative penalties related to lead hazards, and any funds appropriated by the general assembly, or received from any other source, private or public.  All balances in the fund at the end of any fiscal year shall be carried forward and remain a part of the fund.  Interest earned by the fund shall remain in the fund. 

(c)  The executive director of the Vermont housing and conservation board or designee, and the commissioner of health or designee, shall annually review receipts and disbursements from the fund, evaluate the effectiveness of the fund in meeting its purposes and goals, evaluate the reasonableness of the cleanup costs, and recommend changes to enhance and encourage abatement of lead hazards in target housing and child care facilities and, on each January 15, submit an annual report of its findings to the general assembly. 

Sec. 18.  18 V.S.A. § 1767 is added to read: 

§ 1767.   TRANSFER OF OWNERSHIP OF TARGET HOUSING; RISK
ASSESSMENT; EMP COMPLIANCE

(a)  At the time a purchase and sale agreement for target housing is executed, the real estate agent and seller shall provide the buyer with a lead paint hazard brochure, materials on other lead hazards in housing, and a disclosure form approved by the commissioner.  The disclosure form shall include any assurance of discontinuance, administrative order, or court order, the terms of which are not completed, and, if the property is rental target housing, verification that the essential maintenance practices have been completed and that a current EMP compliance statement has been filed with the department.

(b)  At a closing for the transfer of title of target housing, real estate agents and sellers shall provide the buyer with a lead‑safe renovation practices packet approved by the commissioner and shall disclose any assurance of discontinuance, administrative order, or court order not disclosed pursuant to subsection (a) of this section, the terms of which are not completed.

(c)  No transfer of title of a rental target housing, building or unit may occur if the building or unit is currently the subject of an assurance of discontinuance, administrative order, or court order unless the assurance or order is amended in writing to transfer to the buyer all remaining obligations under the assurance or order.  

(d)  At the time of transfer of title of rental target housing the real estate agents and sellers shall provide the buyer with information explaining EMP obligations approved by the commissioner. 

(e)  A buyer of rental target housing who has purchased a building or unit that is not in full compliance with section 1759 of this title shall bring the target housing into compliance with section 1759 of this title within 60 days after the closing.  Within the 60‑day period, the buyer may submit a written request for an extension of time for compliance, which the commissioner may grant in writing for a stated period of time for good cause only.  Failure to comply with this subsection shall result in a mandatory civil penalty.

(f)  This section shall not apply to target housing that has been certified lead free.

(g)  Noncompliance with this section shall not affect marketability of title.

Sec. 19.  24 V.S.A. § 2291 is amended to read:

§ 2291.  ENUMERATION OF POWERS

For the purpose of promoting the public health, safety, welfare, and convenience, a town, city, or incorporated village shall have the following powers:

* * *

(23)  To enforce laws related to lead hazards pursuant to chapter 38 of Title 18, including requiring screening and testing of individuals, enforcing the use of safe work practices and essential maintenance practices.  This subdivision confers no new authority to regulate firearms, ammunition, or shooting ranges or circumstances resulting from shooting, handling, storing, or reloading ammunition.

Sec. 20.  GRANTS FOR LEAD HAZARD REDUCTION

The commissioner is authorized to secure grants from public and private sources and to receive and disburse funds that are assigned, donated, or bequeathed to the department to increase lead hazard reduction activities, to promote primary prevention of exposure to lead hazards, and to evaluate primary prevention programs in the state.

Sec. 22.  CONSTRUCTION

Nothing in this act shall be construed to regulate firearms, ammunition, or shooting ranges or circumstances resulting from shooting, handling, storing, or reloading ammunition.

Sec. 23.  EFFECTIVE DATE

This act shall take effect on July 1, 2007, except section 18, relating to transfer of target housing, and the licensing requirement for lead safe renovators shall take effect on July 1, 2008.

Rep. Mrowicki of Putney, for the committee on Human Services, recommended the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND INTENT

The general assembly finds that:

(1)  Lead is highly toxic to humans, particularly to young children, and can cause irreversible damage resulting in long‑lasting, permanent neurological damage, including decreases in I.Q.

(2)  Medical research shows that there is no safe level of lead, and that decreases in I.Q. are greatest for the first ten micrograms of lead per deciliter of blood in young children.

(3)  In February 2007, the Vermont department of health announced that it would lower from ten to five micrograms of lead per deciliter the blood lead level that triggers educational outreach.

(4)  In 2004, four percent of all Vermont children aged one and two years who received lead screening–or approximately 300 children–had blood lead levels at or above ten micrograms per deciliter.  Approximately one third or nearly 3,000 of all children tested had blood lead levels at or above five micrograms.  In 2006, 2.7 percent of all Vermont children under the age of six who received lead screening–or approximately 250 children–had blood lead levels at or above ten micrograms per deciliter.  Approximately 20 percent or nearly 2,000 of all children under the age of six tested had blood lead levels at or above five micrograms per deciliter.

(5)  The primary exposure to lead for Vermont children is lead‑based paint in housing built prior to 1978 when lead was banned in residential paint.   Vermont has over 112,000 owner‑occupied housing units and over 56,000 rental housing units built prior to 1978.

(6)  Vermont’s existing lead law, which has been in place since 1996, attempts to prevent exposing children to lead in rental housing and child care facilities by requiring that EMP be performed in nearly all rental housing units and child care facilities built prior to 1978.  Even though 40 percent of children with blood lead levels above 20 micrograms per deciliter live in owner-occupied housing, the primary provisions under current law that attempt to prevent elevated blood lead levels in children in owner‑occupied housing are related to public awareness.

(7)  The intent of this act is to decrease Vermonters’ exposure to lead in pre-1978 housing and child care facilities.  This act does not address lead in other consumer products, in ammunition, or at shooting ranges.

Sec. 2.  18 V.S.A. § 1751 is amended to read:

§ 1751.  DEFINITIONS

(a)  Words and phrases used in this chapter or in rules adopted pursuant to this chapter and not defined herein shall have the meanings given to them have the same definitions as provided in the Federal Residential Lead‑Based Paint Hazard Reduction Act of 1992.  In the event of unless there is an inconsistency between meanings given in such federal act and meanings given in this chapter, the federal act shall apply except where meanings given in this chapter serve to narrow, limit or restrict the applicability of a word or phrase, in which cases the narrower meaning shall apply in which case, any definition provided in this section that narrows, limits, or restricts shall control.

(b)  For the purposes of this chapter:

(1)  “Abatement” means any set of measures designed to permanently eliminate lead‑based paint hazards in accordance with standards established by appropriate state and federal agencies.  The term includes:

(A)  the removal 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; and .

(B)  all All preparation, cleanup, disposal, and post‑abatement clearance testing activities associated with such measures.

(2)  “Certified inspector” or “licensed inspector” means an individual who has been trained by an accredited training program and certified by the department to perform the duties of an inspector or risk assessor. “Child” or “children” means an individual or individuals under the age of 18 years, except where specified as a child or children six years of age or younger.

(3)  “Child care facility” means a day care facility or family day care home as defined in 33 V.S.A. § 4902 that was constructed prior to 1978.

(4)  “Commissioner” means the commissioner of the department of health.

(5)  “Comprehensive environmental lead inspection” or “inspection” means 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.

(6)  “Department” means the department of health.

(7)  “Deteriorated paint” means any interior or exterior lead‑based paint that is peeling, chipping, chalking, flaking, or cracking or any lead‑based paint located on an interior or exterior surface or fixture that is damaged or deteriorated.

(8)(5)  “Dwelling” means either of the following:

(A)  a single‑family dwelling, A detached family residential unit including attached structures such as porches and stoops; or.

(B)  a A single‑family dwelling residential unit in a structure that contains more than one separate residential dwelling unit, and which is used or occupied, or intended to be used or occupied, in whole or in part, as the home or residence of one or more persons.

(6)  “Elevated blood lead level” means having a blood lead level of at least five micrograms per deciliter of human blood, or a lower threshold as determined by the commissioner.

(7)  “EMP” means essential maintenance practices required by section 1759 of this title.

(9)(8)  “Independent dust clearance” means a visual examination and collection of environmental samples, including dust samples, by a licensed inspector in whose firm or corporation lead inspector or lead assessor who has no financial interest in either the work being performed or the owner of the property to be inspected has no financial interest, and is independent of both the persons performing the work and the owner of the property.  The licensed inspector lead inspector or lead assessor shall use methods specified by the department and analysis by an accredited laboratory to determine that lead exposures do not exceed limits set by the department utilizing current information from the U.S. Environmental Protection Agency or the U.S. Department of Housing and Urban Development.

(9)  “Inspection” means a surface‑by‑surface investigation to determine the presence of lead‑based paint and other lead hazards and the provision of a report explaining the results of the investigation.

(10)  “Interim controls” means a set of measures designed to temporarily reduce human 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 of management and resident education programs.

(11)  “Lead‑based paint” means paint or other surface coatings that contain lead in excess of limits established under section 302(c) of the Federal Lead‑Based Paint Poisoning Prevention Act.

(12)  “Lead contractor” means any person engaged in deleading or lead hazard reduction as a business and includes consultants and inspectors who design, perform, oversee or evaluate lead hazard reduction projects employing one or more individuals licensed by the department under this chapter.

(13)  “Lead‑based paint activities” means:

(A)  in the case of target housing, risk assessment, inspection, and abatement.

(B)  in the case of any public building constructed before 1978, identification of lead‑based paint and materials containing lead‑based paint, deleading, and demolition.  The term “lead‑based paint activities” may be further limited or restricted by rule adopted by the secretary. “Lead abatement worker” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to perform abatements.

(14)  “Lead designer” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to prepare lead abatement project designs, occupant protection plans, and abatement reports.

(14)(15) “Lead‑based paint hazard” or “LBP” “Lead hazard” means any condition that causes exposure to lead inside and in the immediate vicinity of target housing from water, lead‑contaminated dust, lead‑contaminated soil, lead‑contaminated paint that has deteriorated or is present in accessible surfaces, friction surfaces, or impact surfaces, or building materials that would result in adverse human health effects as defined by the department using current information from the U.S. Environmental Protection Agency or the U.S. Department of Housing and Urban Development.

(15)  “Lead‑based paint hazard control” or “LBP hazard control” or “lead hazard control” means a measure or set of measures designed to control or eliminate human exposure to lead‑based paint hazards through methods that include interim controls, abatement, and complete removal.

(16)  “Lead poisoning” means a confirmed blood lead level in a child six years of age or younger greater than or equal to ten micrograms of lead per deciliter of whole blood, unless the commissioner finds by rule that a higher or lower concentration is necessary to protect public health. “Lead inspector” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to conduct inspections.

(17)  “Lead risk assessor” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to conduct risk assessments.

(18)  “Lead‑safe renovator” means any person who has completed a lead‑safe training program approved by the department and has a current registration issued by the department to perform renovations in target housing or child care facilities in which interior or exterior lead‑based paint will be disturbed.

(19)  “Lead supervisor” means any individual who has satisfactorily completed an accredited training program approved by the department and has a current license issued by the department to supervise and conduct abatement projects and prepare occupant protection plans and abatement reports. 

(17)(20)  “Occupant” means any person who resides in, or regularly uses, a dwelling, car mobile dwelling unit, or structure.

(18)(21)  “Owner” means any person who, alone or jointly or severally with others:

(A)  Has legal title to any dwelling or dwelling unit or child care facility with or without accompanying actual possession thereof; or of the property.

(B)  Has charge, care, or control of any dwelling or dwelling unit or child care facility as agent of the owner or guardian of the estate of the owner.  An agent of the owner does not include real estate and property management functions where the agent is only responsible for the property management and does not have authority to fund capital or major property rehabilitation on behalf of the owner.

(C)  For purposes of publicly‑owned property only, the owner shall be the Is the chief executive officer of the municipal or state agency which that owns, leases, or controls the use of the publicly owned property.

(D)  A Is a person who holds indicia of ownership in a dwelling or dwelling unit or child care facility furnished by the owner or person in lawful possession for the primary purpose of assuring repayment of a financial obligation shall not be considered an owner unless such person has taken full legal title of a dwelling or child care facility through foreclosure, deed in lieu of foreclosure, or otherwise.  “Owner” does not include a person who holds indicia of ownership given by the person in lawful possession for the primary purpose of assuring repayment of a financial obligation.  Indicia of ownership includes interests in real or personal property that are held as security or collateral for repayment of a financial obligation such as a mortgage, lien, security interest, assignment, pledge, surety bond or guarantee and includes   participation rights of a financial institution used for legitimate commercial purposes in making or servicing the loan.

(E)  Owns a building in which a child care facility is located or owns the child care business, although the owner of the child care business may not own the building.

(19)(22)  “Rental target housing” means target housing offered for lease or rental under a rental agreement as defined in 9 V.S.A. § 4451.  “Rental target housing” does not include a rented single room located within a residential dwelling unit in which the owner of the dwelling unit resides unless a child six years of age or younger resides in or is expected to reside in that dwelling unit.

(20)(23)  “Risk assessment” means an on‑site investigation by a licensed inspector or risk assessor lead risk assessor to determine and report the existence, nature, severity, and location of lead‑ based paint lead hazards, including information gathering about the age and history of the property and occupancy by children under the age of six years of age or younger, visual inspection, limited wipe sampling, or other environmental sampling techniques, other appropriate risk assessment activities and a report on the results of the investigation.

(21)  “Secretary” means the secretary of the agency of human services.

(22)  “Severely lead‑poisoned” means a confirmed venous blood lead level in a child six years of age or younger that is greater than or equal to 20 micrograms of lead per deciliter of whole blood or as defined by the commissioner.

(23)  “State inspector” means the commissioner or any person who is authorized in writing by the commissioner to conduct inspections for the department.

(24)  “Screen,” “screened,” or “screening” relating to blood lead levels, means the initial blood test to determine the presence of lead in a human.

(24)(25)  “Target housing” means any dwelling or dwelling unit constructed prior to 1978 and used as a residence, except any 0‑bedroom residential dwelling unit or any residential dwelling unit located in multiple‑unit buildings or projects reserved for the exclusive use of the elderly or persons with disabilities, unless a child six years of age or younger resides in or is expected to reside in that housing.   “Target housing” does not include units in a hotel, motel, or other lodging, including condominiums, that are designed and rented for transient occupancy for travelers or vacationers and not intended to be used as a primary residence 30 days or less.

Sec. 3.  18 V.S.A. § 1752 is amended to read:

§ 1752.   ACCREDITATION OF TRAINING PROGRAMS;
  CERTIFICATION, REGISTRATION AND LICENSURE OF
ENVIRONMENTAL LEAD INSPECTORS AND LEAD
CONTRACTORS, SUPERVISORS AND WORKERS

(a)  No later than six months after promulgation of final federal regulations under section 402 of the Federal Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the The department shall develop a program to administer and enforce the lead‑based paint activities training and certification standards, regulations, or requirements of this chapter and other requirements as established by the administrator of the federal Environmental Protection Agency for persons engaged in lead‑based paint lead abatement activities.  The commissioner shall adopt rules to implement and enforce this chapter, including establishing standards and specifications for registration, licensing, issuing a certificate, and accreditation of training programs both within and outside Vermont.

(b)  The secretary shall adopt emergency rules, and not later than January 1, 1994, the secretary shall adopt permanent rules, establishing standards and specifications for the accreditation of training programs both within and outside Vermont, including the mandatory topics of instruction, the knowledge and performance standards that must be demonstrated by graduates in order to be certified, and required qualifications for training programs and instructors. Such standards shall be designed to protect children, their families, and workers from improperly‑conducted lead‑based paint activities, and shall be at least as protective of human health and the environment as the federal program.  Hands‑on instruction and instruction for identification and proper handling of historic fabric and materials shall be components of the required training. The commissioner shall issue certificates to all persons who satisfactorily complete an approved EMP training program for lead hazard control.

(c)  The commissioner shall certify risk assessors, designers, issue registrations and licenses to laboratories, inspectors, lead-safe renovation contractors, lead contractors, supervisors, abatement workers, and other persons engaged in lead‑based paint activities when such persons individuals, and firms, provided they have successfully completed an accredited a training program approved by the commissioner and met such other requirements as the secretary may, by rule, impose complied with all registration and licensing criteria required by the commissioner.

(d)  After the adoption of rules pursuant to subsection (b) of this section Except as provided in subsection 1760(c) of this title, no person shall perform for compensation of any kind engage in any activity likely to disturb more than one square foot of lead‑based paint activities without first registering or obtaining a license from the commissioner, as provided in this section.  The commissioner may grant a license to a person who holds a comparable valid license from another state.

(e)  Nothing in this chapter shall be construed to limit the authority of the secretary, the commissioner of health, the commissioner of labor, or the commissioner of environmental conservation under the provisions of any other law. 

Sec. 4.  18 V.S.A. § 1753 is amended to read:

§ 1753.   ACCREDITATION, REGISTRATION, CERTIFICATION, AND LICENSE FEES

(a)  The commissioner shall assess fees for accrediting training programs and for certifications, registrations, licenses, and license renewals issued in accordance with this chapter.  Fees shall not be imposed on any state or local government or nonprofit training program and may be waived for the purpose of training state employees.

(b)  Each accredited training program, registrant, and licensee shall be subject to the following fees:

Training courses = $480.00 per year

Lead contractors = $600.00 per year

Lead workers = $60.00 per year

Supervisors Lead supervisors = $120.00 per year

Inspectors Lead inspectors = $180.00 per year

Risk assessors Lead risk assessors = $180.00 per year

Designers Lead designers = $180.00 per year

Laboratories = $600.00 per year

Lead-safe renovation contractors Lead‑safe renovators = $50.00 per year

(c)  Each lead abatement project shall be subject to the following permit fees:

(1)  Lead abatement project permit fee $50.00.

(2)  Lead abatement project permit revision $25.00.

(d)  Fees imposed by this section shall be deposited into the lead paint abatement accreditation and licensing special fund.  Monies in the fund may be used by the commissioner only to support departmental accreditation, certification, and licensing activities related to this chapter.  The fund shall be subject to the provisions of subchapter 5 of chapter 7 of Title 32.

Sec. 5.  18 V.S.A. § 1754 is amended to read:

§ 1754.  PUBLIC EDUCATION

(a)  Beginning January 1, 1994, the The commissioner of health shall prepare and distribute clear and simple printed materials describing the dangers of lead poisoning, the need for importance of parents to have having their child children screened, how to have a child tested and receive a confirmation test, recommended nutrition and housekeeping practices, and materials on other lead hazards in housing, identifying possible sources of lead exposure in housing in addition to lead‑based paint, and describing methods for addressing those sources.  The commissioner shall work with persons and organizations involved in occupations that may involve lead‑based paint hazards or childhood lead poisoning to distribute the materials to their clients, patients, students, or customers whose work involves disturbance of lead‑based paint or preventing and treating elevated blood lead levels in humans, such as realtors, subcontractors, apartment owners, public housing authorities, pediatricians, family practitioners, nurse clinics, child clinics, other health care providers, child care and preschool operators, and kindergarten teachers to encourage them to distribute the materials to their clients, patients, students, or customers.  The commissioner shall also identify those points in time or specific occasions, when members of the public are in contact with public agencies and lead might be an issue, such as building permits, home renovations, and the ANFC and WIC appropriate state and federal programs, and make the materials available on these occasions.

(b)  The commissioner shall prepare an appropriate media campaign to educate the public on lead poisoning the prevention of elevated blood lead levels.  To the extent resources permit, educational outreach efforts shall include public service announcements, education through community access channels, direct mailings to homeowners, postings in public places, or other methods that cost effectively communicate this information to the broad public.  The commissioner shall encourage professional property managers, rehab rehabilitation and weatherization contractors, minimum housing inspectors, social workers, and visiting nurses to attend education and awareness workshops.

(c)  The commissioner shall develop a program or approve a program, or both, to train owners and managers of rental target housing and child care facilities and their employees to perform essential maintenance practices.  The names and addresses of all persons who attend the approved training program shall be maintained as a public record that the commissioner shall provide to the department of housing and community affairs.

Sec. 6.  18 V.S.A. § 1755 is amended to read:

§ 1755.  UNIVERSAL ACCESS TO SCREENING

(a)  Not later than November 1, 1993, the The commissioner shall publish the results of the department’s lead poisoning prevalence study.  Not later than January 1, 1994, the commissioner shall publish guidelines establishing that establish the methods by which and the intervals at which children under six years of age are recommended to should be screened and tested given a confirmation test for elevated blood lead poisoning levels, according to the age of the children and their probability of exposure to high‑dose sources of lead.  The guidelines shall take into account the recommendations of the U.S. Centers for Disease Control and the American Academy of Pediatrics and shall be updated as those recommendations are changed.  The commissioner may also shall recommend screening for lead poisoning in other high risk groups.

(b)  Not later than January 1, 1994, the Vermont  the commissioner of banking, insurance, securities, and health care administration shall recommend to the general assembly whether lead screening should be a common benefit under the universal access proposals it has presented, and, if so, how such benefits should be financed.  The cost of implementing the Vermont commissioner of banking, insurance, securities, and health care administration’s plan under this chapter shall be included in the unified health care budget to be adopted by the authority effective July 1, 1994.

(c)  Beginning July 1, 1994 , all All health care providers who provide primary medical care shall ensure that parents and guardians of children below the age of six are advised of the availability and advisability of screening and testing their children for lead poisoning in accordance with the commissioner’s guidelines,:

(1)  Screen for lead, or refer for lead screening, all children one or two years of age unless the parent or guardian of the child refuses to consent.

(2)  Conduct, or refer for, a confirmation test of blood lead levels by venous draw for any child whose screening result is ten micrograms of lead per deciliter of blood or more.

(3)  The requirements of subdivisions (1) and (2) of this subsection, including the blood lead level at which a confirmation test may be required, may be amended by the commissioner by rule to allow for the most effective methods and timing of screening and testing according to scientific studies and according to the guidelines and recommendations referenced in subsection (a) of this section, provided the rules are consistent with the requirements of those subdivisions.

(d)(c) Any health care provider or employee thereof making the diagnosis of lead poisoning shall report such diagnosis to the department within such time and using such format as the department shall prescribe.  Any laboratory in Vermont which that analyzes blood samples of children below the age of six Vermont residents for lead levels shall report to the department such all information on blood lead analyses as required by the department may require including data on the number and results of blood lead analyses performed by the laboratory.  All health care providers who analyze blood samples for lead levels or who use laboratories outside Vermont to analyze blood samples of children below the age of six for lead levels shall report all information required by the department to the department such information as the department may require including data on the number and results of such blood lead tests.  The commissioner shall establish procedures to ensure the confidentiality of the children and families immediately by telephone if the result of any analysis is 45 micrograms or more of lead per deciliter of blood, or by electronic means within 14 days of analysis if the result of the analysis is less than 45 micrograms of lead per deciliter of blood.  All blood lead data reports to the department shall include the name, date of birth, date of blood test, and address of the individual whose blood is analyzed and, if known, the owner of the residence of the individual.

(e)(d) After the guidelines established pursuant to subsection (a) of this section have been in place for two years, the commissioner shall determine the percentage of children below the age of six who are being screened in accordance with those guidelines.  If fewer than 75 percent of such children are receiving such screening, the secretary shall adopt rules to require that all health care providers who provide primary medical care to young children shall ensure that their patients are screened and tested according to the commissioner’s guidelines beginning January 1, 1997.  Such rules shall provide that no screening or testing shall be required pursuant to this subsection if the parent or guardian of the child objects to the child undergoing blood lead screening on the grounds that such screening conflicts with their moral or religious tenets or practices. No health care provider shall be liable for the refusal of a parent or guardian to consent to have a child screened or have a confirmation test of blood lead level, or for a parent’s or guardian’s failure to follow through with a referral for a screening or confirmation test.

Sec. 7.  18 V.S.A. § 1756 is amended to read:

§ 1756.  ANNUAL REPORT 

(a)  The commissioner shall, at least annually, on or before October 15, analyze and summarize all aggregate the information collected during the previous fiscal year relating to lead screening and confirmation testing information provided by physicians, health care facilities, and laboratories, and shall provide this information to all other local and state agencies involved with case management and lead hazard reduction.

(b)  The commissioner shall also at least annually on or before October 15 provide to the general assembly, the health community, and the general public an analysis and summary of such data, collected during the previous fiscal year, and a progress report on the commissioner’s efforts to prevent elevated blood lead poisoning in young children levels in a format that is easily understandable to nontechnical readers.  The report shall include:

(1)  The For each age group for children six years of age or younger, the number and percentage of children under the age of six who have been screened and tested for lead poisoning had a confirmation test, and the number found to have lead poisoning results of those tests at various blood lead levels.

(2)  Estimates of the public and private costs incurred since July 1, 1993 to prevent, correct, or treat lead poisoning.

(3)  An analysis of barriers to universal blood screening of children under the age of six years of age or younger.

(3)  The number of children over the age of six and adults who have had a lead screen or a confirmation test and the number at various blood lead levels.

(4)  An analysis of current data related to studies on the health risks associated with elevated blood lead levels, as well as any information on technological advances related to the prevention of elevated blood lead levels.

(5)  A description of the department’s activities relating to inspections and plans to address sources of lead for children with a confirmed blood lead level at or above ten micrograms of lead per deciliter of blood.  The report shall include the number and percentage of homes inspected and plans developed relative to the number of children with a confirmed blood lead level at or above ten micrograms of lead per deciliter of blood reported to the department and, if that percentage is less than 80, an explanation of the barriers to and efforts of the department to achieve that level.

(6)  The number of annual EMP compliance certifications filed with the department and the number and percentage of child care facilities which the department for children and families, child development division, has identified as having completed EMP or lead hazard control measures pursuant to subsection 1758(c) of this title.

(7)  Findings as required under subsection 1766(c) of this title relative to the lead hazard education and cleanup fund.

(8)  A description of the department’s public education and outreach efforts pursuant to section 1754 of this title, including monies spent and persons and geographical areas targeted.

(9)  An analysis of historical trends related to:  the prevalence of elevated blood lead levels; the filing of EMP compliance certifications; spending on public education programs; and the number, nature, and outcome of enforcement actions.

(10)  The commissioner’s recommendations for action. 

(11)  The commissioner’s 2009 report to the general assembly shall include:  an analysis of provider reimbursement rates for blood lead level screenings and confirmation tests under the Medicaid program and under the primary, private health insurance programs offered to Vermont residents; in consultation with the office of Vermont health access, a cost estimate for full Medicaid reimbursement; and, in consultation with the department of banking, insurance, securities, and health care administration, a cost estimate for a private insurance mandate related to screenings and confirmation tests for all one- and two-year olds.

Sec. 8.   COMMISSIONER’S RECOMMENDATION REGARDING MANDATORY SCREENINGS AND CONFIRMATION TESTS

By January 15, 2009, the commissioner of health shall submit to the house committee on human services and the senate committee on health and welfare a letter containing a recommendation on whether screenings and confirmation tests should be mandatory, as provided in subsection 1755(b) of this title.  Any proposed recommendation by the commissioner shall not be effective unless enacted by the general assembly.

Sec. 9.  18 V.S.A. § 1756a is added to read:

§ 1756a.  SPECIAL REPORT ON INSPECTIONS

In any fiscal year in which the commissioner does not conduct inspections and develop plans to address sources of lead exposure for at least 80 percent of all children six years of age or younger with a confirmed blood lead level at or above ten micrograms of lead per deciliter of blood, the commissioner shall submit to the general assembly by October 15 a report detailing the barriers to and efforts of the department to achieve that level.

Sec. 10.  18 V.S.A. § 1757 is amended to read:

§ 1757.  LEAD POISONED CHILDREN WITH ELEVATED BLOOD LEAD LEVELS

(a)  Upon receiving a report that a child under age six has been diagnosed by a qualified physician to have lead poisoning, the a screening test result of ten or more micrograms of lead per deciliter of blood, or a lower level as determined by the commissioner, the commissioner shall take prompt action to confirm the diagnosis ensure that the child obtains a confirmation test.

(b)  If the child is severely lead poisoned has an elevated blood lead level, the commissioner shall provide for information on lead hazards to the parents or guardians of the child.

(c)  If a child six years of age or younger has a confirmed blood lead level at or above ten micrograms of lead per deciliter of blood, and if resources permit, the commissioner:

(1)  Shall provide an inspection of the dwelling unit occupied by the child or the child care center facility the child attends, by a state inspector or licensed private inspector lead risk assessor, and develop a plan in consultation with the parents, owner, physician, and others involved with the child to minimize the exposure of the child to lead.  The plan developed under this subdivision shall require that any lead hazards identified through the inspection be addressed.

(2)  The commissioner may May inspect and evaluate other dwelling units in a the building in which a severely lead‑poisoned the child has been identified as is living and if it is reasonable to believe that a child under the age of six years of age or younger occupies, receives care, or otherwise regularly frequents the other dwelling units in that building.

(c)  The commissioner shall work with the parents, owner, physician, and others involved with the child to develop a plan to minimize exposure of the child to lead hazards.

(d)  Concerning target housing which is rented or leased, on or before January 1, 1994, the secretary with the concurrence of the commissioner of housing and community affairs shall adopt rules to implement this section including rules which assure that prompt action will be taken to confirm a lead poisoning diagnosis, to inspect the possible sources of lead poisoning, and to secure voluntary compliance or to take necessary enforcement action. Enforcement action shall include providing the child’s parents or guardians and the owner of the dwelling unit with appropriate educational materials on lead poisoning prevention and may include requiring the owner of the dwelling unit to initiate interim controls or abatement of lead‑based paint hazards within a specified time.

(e)  Nothing in this section shall be construed to limit the commissioner’s authority under any other provision of Vermont law.

Sec. 11.  18 V.S.A. § 1758 is amended to read:

§ 1758.  HOUSING REGISTRY LEAD HAZARD DATA

(a)  The department shall issue certificates to all persons who satisfactorily complete a training program on performing essential maintenance practices for lead‑based hazard control and shall compile a list of those persons’ the names of all persons who satisfactorily complete a training program on EMP, lead‑safe renovation, and any other lead hazard training program authorized by the department.

(b)  If additional funds are appropriated to the department in fiscal year 1998, on or before October 1, 1997, the department of housing and community affairs shall establish and maintain a list of housing units which (1) are lead free or (2) have undergone lead hazard control measures and passed independent dust clearance tests. The registry shall be maintained as a public record.

(c)  The department of social and rehabilitation services for children and families, child development division, shall identify all child care facilities in which the owners have completed essential maintenance practices EMP or lead hazard control measures and provide the findings percentage of all child care facilities that the number represents to the department annually by September 1 for the previous fiscal year.

Sec. 12.  18 V.S.A. § 1759 is amended to read:

§ 1759.  Essential maintenance practices

(a)  For the purposes of this section, all paint is presumed to be lead‑based unless a certified inspector has determined that it is not lead‑based.  All owners of rental target housing and child care facilities shall perform the Essential maintenance practices (EMP) in rental target housing and child care facilities shall be performed only by a person who has successfully completed an EMP training program approved by the commissioner or a person who works under the direct, on‑site supervision of a person who has successfully completed such training.  That person shall comply with section 1760 of this title and shall take all reasonable precautions to avoid creating lead hazards during any renovations, remodeling, maintenance, or repair project that disturbs more than one square foot of lead‑based paint, pursuant to guidelines issued by the department.  The following essential maintenance practices EMP on their property shall be performed in all rental target housing and child care facilities, unless a lead inspector or a lead risk assessor has certified that the property is lead‑free:

(1)  Take all reasonable precautions to avoid creating lead hazards during any renovation, remodeling, maintenance, or repair project that disturbs a lead‑based painted surface pursuant to guidelines issued by the department. The guidelines shall include the following requirements:

(A)  A prohibition against lead‑based paint removal by burning, water blasting, dry scraping, power sanding, or sandblasting, unless authorized by the department.

(B)  Use of good work practices and safety precautions to prevent the spread of lead dust, including limiting access to work areas to workers, covering the work area with six mil polyethylene plastic or the equivalent, wearing of protective clothing by workers, protecting belongings of occupants by covering or removing them from the work area, misting painted surfaces before disturbing the paint, and wetting sweeping debris.

(C)  At the conclusion of the work, specialized cleaning of the work area shall be performed shall be thoroughly cleaned using methods designed to remove lead dust and recommended by the department.

(2)  Perform visual on‑site inspections of all interior and exterior surfaces and fixtures of the building to identify deteriorated paint and install window well inserts into all windows, or protect window wells by another method approved by the department, no later than July 1, 1998; thereafter, visual on‑site inspections shall be performed annually and upon a change of tenant. Install window well inserts in all windows, or protect window wells by another method approved by the department.

(3)(2)  At least once a year and at each change of tenant, and annually in units in which a child six years of age or younger resides clean all window wells and window sills within the unit and in all areas of the building to which access by tenants is not restricted by the rental agreement.  The cleaning shall be accomplished by using cleaning methods, products, and devices that are effective in the removal of lead‑contaminated dust and recommended by the department perform visual on‑site inspection of all interior and exterior painted surfaces and components at the property to identify deteriorated paint.

(4)(3)  Promptly and safely remove or stabilize lead‑based paint if more than one square foot of deteriorated lead‑based paint is found on any interior or exterior surface located within any area of the building dwelling to which access by tenants is not restricted by the rental agreement or on any exterior porch or an exterior wall, surface or fixture within the exterior porch.  An owner shall restore the assure that all surfaces to be are free of deteriorated lead‑based paint within 30 days after deteriorated lead‑based paint has been visually identified or within 30 days after receipt of a written or oral report of deteriorated lead‑based paint from any person including the department, a tenant, or from an owner of a child care facility.  If Because exterior paint repairs cannot be completed in cold weather, any exterior repair work is identified after November 1 of any year, the repair may be delayed for completion until shall be completed no later than the following May 31 of the following year provided that access to surfaces and components with lead hazards and areas directly below the deteriorated surfaces is clearly restricted.

(5)(4)  If more than one square foot of deteriorated paint is found on any exterior wall surface or fixture not covered by subdivision (4)(3) of this subsection and is located in an area frequented by children six years of age or younger in warm weather, the owner shall:

(A)  promptly and safely repair and stabilize the paint and restore the surface; or

(B)  prohibit access to the area, surface, or fixture to assure that such children will not come into contact with the deteriorated lead‑based paint.

(5)  For any outdoor area frequented in warm weather by children six years of age or younger, annually remove all visible paint chips from the ground on the property and assure that any bare soil within four feet of buildings is inaccessible by using any appropriate and effective method, including fencing, groundcover, or other vegetation, or covering the bare soil with stone or other materials recommended by the department. 

(6)  At least once a year, using methods recommended by the department, thoroughly clean all interior horizontal surfaces, except ceilings, in common areas accessible to tenants.

(6)(7) Provide written LBP hazard information prepared or approved by the department to current and prospective tenants and current and prospective owners of child care facilities. At each change of tenant, thoroughly clean all interior horizontal surfaces of the dwelling unit, except ceilings, using methods recommended by the department.

(7)(8)  Post, in a prominent place in buildings containing rental target housing units or a child care facility, a notice to occupants emphasizing the importance of promptly reporting deteriorated paint to the owner or to the owner’s agent.  The notice shall include the name, address, and telephone number of the owner or the owner’s agent.

(8)  Attend a training program offered or approved by the department.  The training, which shall be available to any person who repairs, remodels or renovates property, shall be attended by the owner, the owner’s property manager, or a representative of the owner’s regular maintenance staff.

(9)  Ensure that any person who performs essential maintenance work has completed a department‑approved training program or is being supervised on‑site by a person who has completed the training program and complies with the essential maintenance practices.

(10)  At each change of tenant, the owner shall clean all horizontal surfaces, except ceilings, within all areas of the building used by tenants and not otherwise restricted by the rental agreement.  This cleaning shall be done by using cleaning methods, products and devices prescribed by the department that are effective in cleaning up lead‑contaminated dust, such as vacuum cleaners with HEPA filters, and wet‑cleaning with trisodium phosphate or other lead specific detergents.

(b)  The owner of rental target housing or a child care facility shall perform all the following:

(1)  When the essential maintenance practices EMP are completed, the owner shall sign an affidavit indicating that, to the best of the owner’s knowledge and belief EMP compliance statement certifying that the essential maintenance practices EMP have been performed, including the addresses of the units in which EMPs were performed, the dates they were completed, and by whom they were of completion, and the person who performed the EMPs, and that subdivisions (2) and (3) of this subsection have been or will be complied with.  The owner shall file the affidavit

(2)  File the statement required in subdivision (1) of this subsection with the owner’s liability insurance carrier and the department and shall provide a copy of the statement to all tenants.  Annually, the owner shall conduct a visual check, perform required essential maintenance practices, and sign and file an affidavit as required by this subsection.

(3)  Provide current and prospective tenants with written information regarding lead hazards approved by the department at the time the owner provides the tenant with the EMP compliance statement.

Sec. 13.  18 V.S.A. § 1760 is amended to read:

§ 1760.  CERTIFICATION; RULES; REPORT; FUTURE DEPARTMENT
UNSAFE WORK PRACTICES

(a)  No later than January 1, 1997, the secretary shall adopt rules that establish methods and practices to be used by licensed inspectors who certify that target housing and child care facilities are lead free or have had lead‑based paint hazards identified and controlled and have passed independent dust clearance tests.  The rules shall include the duration of validity of any certifications and requirements for renewal of certifications.

(b)  By January 1, 1999, the secretary shall report to the general assembly on the need for additional essential maintenance practices or other actions to further prevent lead poisoning in children based on significant:

(1)  Reductions in the number and percentage of poisoned and severely lead‑poisoned children.

(2)  Increases in the number and percentages of owners of rental target housing that have performed essential maintenance practices.

(3)  Increases in the number and percentage of housing units that have achieved higher levels of lead hazard control.

(4)  Advances in lead poisoning prevention technology.

(5)  Impact of public education efforts in reducing the lead levels of children at risk.

(c)  After July 1, 2000, the secretary may adopt rules for the low cost and cost effective implementation of the essential maintenance practices established in section 1759 of this title and additional recommended low cost and cost effective essential maintenance practices and other actions to further prevent lead poisoning in children.

(a)  All paint in target housing and child care facilities is presumed to be lead‑based unless a lead inspector or lead risk assessor has determined that it is not lead‑based.  Unsafe work practices include the following, unless specifically authorized by the department:

(1)  Removing lead‑based paint by:

(A)  Open flame burning or torching.

(B)  Use of heat guns operated above 1100 degrees Fahrenheit.

(C)  Dry scraping.

(D)  Machine sanding or grinding.

(E)  Uncontained hydro‑blasting or high pressure washing.

(F)  Abrasive blasting or sandblasting without containment and high‑efficiency particulate exhaust controls.

(G)  Chemical stripping using methylene chloride products.

(2)  Failing to employ one or more of the following lead‑safe work practices: 

(A)  Limiting access to interior and exterior work areas.

(B)  Enclosing interior work areas with plastic sheathing or other effective lead dust barrier.

(C)  Using protective clothing.

(D)  Misting painted surfaces before disturbing paint.

(E)  Wetting paint debris before sweeping to limit dust creation.

(F)  Any other measure required by the department.

(b)  No person shall disturb more than one square foot of lead‑based paint using unsafe work practices in rental target housing or in child care facilities. 

(c)  No person shall perform, or hire another person to perform, any work for compensation of any kind in any target housing or child care facility if the work is likely to disturb more than one square foot of lead‑based paint unless the person hired:

(1)  holds a current registration or license issued by the department applicable to the work to be performed;

(2)  performs work that only infrequently and incidentally involves the disturbance of lead-based paint; or

(3)  performs no more than one project that involves the disturbance of lead-based paint in an owner-occupied, single-family dwelling.

(d)  No person shall perform any renovation in target housing or child care facility for compensation without complying with the pre‑renovation notification requirements pursuant to rules of the U.S. Environmental Protection Agency.

(e)  If it is determined that a person is disturbing lead‑based paint using unsafe work practices, the commissioner may require the person to cease work and to take action necessary to terminate the unsafe activity or mitigate lead hazards.  The order shall identify the unsafe work practice, the location of the work being performed, and the person performing the work.

Sec. 14.  18 V.S.A. § 1760a is added to read:

§ 1760a.  ENFORCEMENT; ADMINISTRATIVE ORDER; PENALTIES

(a)  The commissioner may issue an administrative order when the commissioner determines that there has been a violation of this chapter.  The order shall be served on the respondent in person or by certified mail, return receipt requested, and a copy of the order shall be provided to any resident of an affected unit, any other person directly affected by the order, and to the attorney general.  An order shall be effective upon receipt by the respondent unless stayed by court order, and shall provide for compliance within a reasonable amount of time depending on the number and severity of the violations.  An administrative order shall include:

(1)  A statement of the facts that provide the basis for the violation.

(2)  Identification of the applicable statute, rule, permit, assurance, work plan, or order.

(3)  Rights of appeal pursuant to subsection (d) of this section.

(4)  Notice that the order is effective upon receipt by the respondent unless stayed by court order.

(5)  The amount of any administrative penalty.

(6)  Suspension of registration, certification, or licensure issued under this chapter, if any.

(7)  Applicable directives for actions to address any violations described in the order.

(b)  A person who violates a provision of this chapter in target housing or a child care facility shall be subject to an administrative penalty in accordance with section 130 of this title.  A violator may be subject to any other available enforcement proceedings, remedies, and penalties.  In assessing a penalty, the commissioner shall consider at least the following:

(1)  The degree of actual or potential impact on public health resulting from the violation.

(2)  The extent of the violator’s knowledge of the violation.

(3)  The confirmed elevated blood lead level of the child who occupies or regularly frequents the property.

(4)  The respondent’s record of compliance with essential maintenance practice requirements.

(5)  Any economic gain derived from the violation, including the estimated costs avoided by noncompliance.

(6)  The deterrent effect of the penalty on the violator and the regulated community.

(7)  The cost to the state of investigation, enforcement, and attorney fees.

(8)  The length of time the violation has existed.

(9)  Any other relevant factors. 

(c)  In lieu of part or all of a civil penalty, in the discretion of the commissioner, a payment may be made by the respondent to the lead hazard education and cleanup fund.  Penalties paid pursuant to this section shall be deposited in the lead hazard education and cleanup fund.

(d)  A person may appeal a violation determination and penalty to the superior court within 30 days after the determination is issued.  The superior court review shall be de novo and pursuant to the procedures set out in Rule 74 of the Vermont Rules of Civil Procedure.

(e)  The commissioner may refer violations of this chapter to the attorney general for civil or criminal enforcement and possible assessment of civil penalties pursuant to subsections (b) and (c) of this section.

(f)  The attorney general shall bring the case in the name of the state of Vermont.

(g)  In any civil action brought pursuant to this section in which a temporary restraining order or preliminary injunction is sought, relief shall be obtained upon a showing that there is the probability of success on the merits, and that a violation exists or a violation is imminent and likely to result in substantial harm.  There is no requirement to demonstrate immediate and irreparable injury, loss, or damage for an action under this subsection.

(h)  The attorney general may seek all equitable and legal remedies available, including civil penalties.

(i)  The court shall assess civil penalties pursuant to subsections (b) and (c) of this section.

(j)  Nothing in this section shall limit the commissioner’s authority under any other provision of law.

Sec. 15.  18 V.S.A. § 1761 is amended to read:

§ 1761.  DUTY OF REASONABLE CARE; NEGLIGENCE; LIABILITY

(a)  Owners of target housing and owners of child care facilities shall take reasonable care to prevent exposure to, and the creation of, lead‑based paint lead hazards.  In an action brought under this section, evidence of actions taken or not taken to satisfy the requirements of this chapter, including performing essential maintenance practices EMP, may be admissible evidence of reasonable care or negligence.

(b)  Any person who suffers an injury proximately caused by an owner’s breach of this duty of reasonable care shall have a cause of action to recover damages and for all other appropriate equitable relief.

(c)  A person who is severely lead poisoned as a result of a violation of the duty of reasonable care before the age of six, or a parent, legal guardian or other person authorized to act on behalf of that person, shall have a cause of action to recover damages and other appropriate relief.

(d)  The owner of target housing or a child care facility who has reduced lead‑based paint hazards by completing risk assessment and controls and who has had a licensed inspector a lead risk assessor certify, pursuant to rules under section 1760 of this title the Vermont regulations for lead control, that all identified lead‑based paint lead hazards have been controlled in target housing or child care facility premises and the housing or facility contains no lead‑contaminated dust has passed an independent dust clearance test, shall not be liable for injury or other relief claimed to be caused by exposure to lead during the time period covered by the certification.  The lead risk assessor shall determine the time period of the certification and any special conditions.

This immunity does not apply if:

(1)  there was fraud in the certification process; or

(2)  the owner violated conditions of the certification; or

(3)  the owner created lead‑based paint lead hazards during renovation, remodeling, maintenance, or repair after the certification; or

(4)  the owner failed to respond in a timely fashion to notification that lead‑based paint lead hazards may have recurred on the premises.

(e)(d)  A defendant in an action brought under this section has a right of contribution from any other person or persons who have violated subsection (a) of this section is determined to be responsible, in whole or in part, for the child’s blood lead level.

(f)(e)  The remedies provided under this section shall be the exclusive remedies against owners arising from lead‑based paint lead hazards, except for the following:

(1)  causes of action under 9 V.S.A. chapter 63;

(2)  causes of action for relief under 9 V.S.A. § 4458; and

(3)  common law actions for fraud or fraudulent misrepresentation.

(g)(f)  Nothing in this section shall be construed to limit the right of the commissioner or any agency or instrumentality of the state of Vermont to seek remedies available under any other provision of Vermont statutory law.

(h)(g)(1)  In an action under 9 V.S.A. § 4458, compliance by the landlord with the duties required under section 1759 of this title shall create a conclusive presumption of habitability with respect to lead‑based paint hazards.  However except that, if a child under the age of six years of age or younger who occupies or regularly frequents the dwelling is lead poisoned as defined in subdivision 1751(b)(16) of this title has a confirmed blood lead level at or above ten micrograms of lead per deciliter, this presumption shall be rebuttable, not conclusive. 

(2)  Notwithstanding the provisions of subdivision (1) of this subsection, in an action brought under 9 V.S.A. § 4458 while the landlord is in compliance with a plan required by section 1757(c) of this title or during the time period of the certification under subsection (c) of this section, such compliance or certification shall create a conclusive, non-rebuttable presumption of habitability with respect to lead‑based paint hazards.

(3)  Presumptions under this subsection shall be limited to actions based on a breach of the warranty of habitability under 9 V.S.A. § 4458.

(i)  This section shall apply only to actions arising from acts or omissions that occur on or after July 1, 1996.

Sec. 16.  18 V.S.A. § 1762 is amended to read:

§ 1762.  SECURED LENDERS AND FIDUCIARIES; LIABILITY

(a)  A person who holds indicia of ownership in rental target housing or a child care facility furnished by the owner or person in lawful possession, for the primary purpose of assuring repayment of a financial obligation and takes full legal title through foreclosure or deed in lieu of foreclosure or otherwise shall not be liable as an owner of the property for injury or loss claimed to be caused by exposure to lead of a child on the premises, provided that, on or before the 120th day after the date of possession, the person completes all the following:

(1)  performs essential maintenance practices EMP as required by section 1759 of this title; and .

(2)  fully discloses Full disclosure to all potential purchasers, child care facility operators or tenants of the property of any information in the possession of such the person or the person’s agents, regarding the presence of lead‑based paint lead hazards or a lead‑poisoned child on the property and, upon request, provides, including providing copies of all written reports on lead‑based paint lead hazards to potential purchasers, operators, or tenants.

(b)  The immunity provided in subsection (a) of this section shall expire 365 days after the secured lender or fiduciary takes full legal title.

(c)  A person who holds legal title to rental target housing or a child care facility as an executor, administrator, trustee, or the guardian of the estate of the owner, and demonstrates that in that fiduciary capacity does not have either the legal authority or the financial resources to fund capital or major property rehabilitation necessary to conduct essential maintenance practices shall not be personally liable as an owner for injury or loss caused by exposure to lead by a child on the premises.  However, nothing in this section shall limit the liability of the trust estate for such claims and those claims may be asserted against the trustee as a fiduciary of the trust estate.

Sec. 17.  18 V.S.A. § 1763 is amended to read:

§ 1763.   PUBLIC FINANCIAL ASSISTANCE; RENTAL TARGET
HOUSING AND CHILD CARE FACILITIES

Every state agency or instrumentality that makes a commitment to provide public financial assistance for the purchase or rehabilitation of rental target housing or child care facilities shall give priority to projects in which the property is lead free, the lead hazards have been or will be identified and abated, or lead‑based paint the lead hazards have been or will be identified and controlled and have passed or will pass an independent dust clearance test that determines that the property contains no lead‑contaminated dust prior to occupancy or use.  Priority rental target housing projects may include units occupied by severely lead‑poisoned children six years of age or younger with a confirmed venous blood lead level at or greater than ten micrograms of lead per deciliter or at a lower level as determined by the commissioner and units in a building that are likely to contain lead‑based paint lead hazards.  For purposes of this section, “public financial assistance” means any grant, loan, or allocation of tax credits funded by the state or the federal government, or any of their agencies or instrumentalities.

Sec. 18.  18 V.S.A. § 1764 is amended to read:

§ 1764.  LEAD INSPECTORS; FINANCIAL RESPONSIBILITY FOR LEAD HAZARD CONTROL ACTIVITIES

The commissioner may require that a registrant, licensee, or an applicant for a registration or license under section 1752(d) 1752 of this title provide evidence of ability to properly indemnify a person who suffers damage from lead‑based paint the registrant’s or licensee’s activities such as proof of effective liability insurance coverage or a surety bond in an amount to be determined by the commissioner which shall not be less than $300,000.00.  This section shall not restrict or enlarge the liability of any person under any applicable law.

Sec. 19.  18 V.S.A. § 1765 is amended to read:

§ 1765.  LIABILITY INSURANCE

(a)  If the commissioner of banking, insurance, securities, and health care administration determines that lead‑based paint lead hazards have substantially diminished the availability of liability insurance for owners of rental property or child care facilities and that a voluntary market assistance plan will not adequately restore availability, the commissioner shall order liability insurers to provide or continue to provide liability coverage or to participate in any other appropriate remedial program as determined by the commissioner, provided the prospective insured is otherwise in compliance with the provisions of this chapter.

* * *

Sec. 20.  18 V.S.A. § 1766 is added to read:  

§ 1766.  LEAD HAZARD EDUCATION AND CLEANUP FUND

(a)  A fund to be known as the lead hazard education and cleanup fund is created in the state treasury shall be administered by the Vermont housing and conservation board to assist Vermont families and property owners to control lead hazards in housing.  The board shall administer the fund in compliance with 10 V.S.A. § 312 and the policies and priorities of the board’s lead‑based paint hazard reduction program with particular attention to targeting resources, promoting primary prevention in order to maximize both the number of young children protected from exposure to lead hazards and the number of homes made safe from lead hazards.  Disbursement may be authorized to fund any of the following:

(1)  Free or reduced rate training on EMP and lead‑safe work practices for property owners, contractors, child care facility operators and other appropriate persons.

(2)  Public education and outreach.

(3)  Costs minimally necessary to administer the fund.

(4)  Technical assistance to Vermont property owners to identify and control housing‑based lead hazards.

(5)  Collection and analysis of environmental samples.

(6)  Grants and loans to property owners to control lead hazards in housing units likely to be inhabited by families with young children.

(b)  The fund shall consist of loan repayments, recovered disbursements, donations, gifts, administrative penalties related to lead hazards, and any funds appropriated by the general assembly, or received from any other source, private or public.  All balances in the fund at the end of any fiscal year shall be carried forward and remain a part of the fund.  Interest earned by the fund shall remain in the fund. 

(c)  Annually, by September 1, the executive director of the Vermont housing and conservation board or designee, and the commissioner of health or designee, shall annually review receipts and disbursements from the fund for the previous fiscal year, evaluate the effectiveness of the fund in meeting its purposes and goals, evaluate the reasonableness of the cleanup costs, and recommend changes to enhance and encourage abatement of lead hazards in target housing and child care facilities and their findings shall be included in the annual report required under section 1756 of this title. 

Sec. 21.  18 V.S.A. § 1767 is added to read: 

§ 1767.   TRANSFER OF OWNERSHIP OF TARGET HOUSING; RISK
ASSESSMENT; EMP COMPLIANCE

(a)  At the time a purchase and sale agreement for target housing is executed, the real estate agent and seller shall provide the buyer with materials approved by the commissioner, including a lead paint hazard brochure, materials on other lead hazards in housing, and a disclosure form.  The disclosure form shall include any assurance of discontinuance, administrative order, or court order, the terms of which are not completed, and, if the property is rental target housing, verification that the EMP have been completed and that a current EMP compliance statement has been filed with the department.

(b)  At a closing for the transfer of title of target housing, real estate agents, sellers, and other transferors shall provide the buyer or transferee with any materials delineated in subsection (a) of this section not previously disclosed and a lead‑safe renovation practices packet approved by the commissioner and shall disclose any assurance of discontinuance, administrative order, or court order not disclosed pursuant to subsection (a) of this section, the terms of which are not completed.

(c)  No transfer of title of a rental target housing, building or unit may occur if the building or unit is currently the subject of an assurance of discontinuance, administrative order, or court order unless the assurance or order is amended in writing to transfer to the buyer or other transferee all remaining obligations under the assurance or order. 

(d)  At the time of any transfer of title of rental target housing the real estate agents, sellers, and other transferors of title shall provide the buyer or transferee with information approved by the commissioner explaining EMP obligations. 

(e)  A buyer or other transferee of title to rental target housing who has purchased or received a building or unit that is not in full compliance with section 1759 of this title shall bring the target housing into compliance with section 1759 of this title within 60 days after the closing.  Within the 60‑day period, the buyer or transferee may submit a written request for an extension of time for compliance, which the commissioner may grant in writing for a stated period of time for good cause only.  Failure to comply with this subsection shall result in a mandatory civil penalty.

(f)  This section shall not apply to target housing that has been certified lead free.

(g)  Noncompliance with this section shall not affect marketability of title.

Sec. 22.  24 V.S.A. § 2291 is amended to read:

§ 2291.  ENUMERATION OF POWERS

For the purpose of promoting the public health, safety, welfare, and convenience, a town, city, or incorporated village shall have the following powers:

* * *

(23)  To enforce laws related to lead hazards pursuant to chapter 38 of Title 18, including requiring screening and testing of individuals, enforcing the use of safe work practices and EMP.  This subdivision confers no new authority to regulate firearms, ammunition, or shooting ranges or circumstances resulting from shooting, handling, storing, or casting and reloading ammunition.

Sec. 23.  GRANTS FOR LEAD HAZARD REDUCTION

The commissioner of health is authorized to secure grants from public and private sources and to receive and disburse funds that are assigned, donated, or bequeathed to the department to increase lead hazard reduction activities, to promote primary prevention of exposure to lead hazards, and to evaluate primary prevention programs in the state.

Sec. 24.  CONSTRUCTION

Nothing in this act shall be construed to regulate firearms, ammunition, or shooting ranges or circumstances resulting from shooting, handling, storing, or casting and reloading ammunition.

Sec. 25.  SUNSET

Section 1756 of Title 18, requiring the commissioner of health to file an annual report related to lead in housing, shall be repealed on October 16, 2014.

Sec. 26.  EFFECTIVE DATE

This act shall take effect on July 1, 2008, except:

(1)  Sec. 6, subsection 1755(b) of Title 18, relating to mandatory screenings and confirmation tests; Sec. 13, subsection 1760(c) of Title 18, only as it relates to unsafe work practices in owner-occupied housing by hired persons; and Sec. 21, relating to transfer of target housing, shall take effect on July 1, 2009; and

(2)  Sec. 9, relating to a special report on inspections, shall take effect on October 16, 2014.

The bill, having appeared on the Calendar one day for notice, was taken up, and read the second time.

Thereupon, Rep. Trombley of Grand Isle moved to withdraw the report of the committee on General, Housing and Military Affairs.

     Pending the question, Shall the House amend the bill as recommended by the committee on Human Services? Rep. Marcotte of Coventry moved to recommit the bill to the committee on Human Services.

Pending the question, Shall the bill be recommitted to the committee on Human Services? Rep. Marcotte of Coventry demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the bill be recommitted to the committee on Human Services?  was decided in the negative.  Yeas, 39.  Nays, 94.

Those who voted in the affirmative are:

Acinapura of Brandon

Adams of Hartland

Ainsworth of Royalton

Baker of West Rutland

Bostic of St. Johnsbury

Brennan of Colchester

Canfield of Fair Haven

Clark of Vergennes

Clerkin of Hartford

Crawford of Burke

Devereux of Mount Holly

Donaghy of Poultney

Errecart of Shelburne

Flory of Pittsford

Helm of Castleton

Kilmartin of Newport City

Komline of Dorset

Krawczyk of Bennington

Larocque of Barnet

LaVoie of Swanton

Lawrence of Lyndon

Marcotte of Coventry

McDonald of Berlin

McFaun of Barre Town

McNeil of Rutland Town

Morley of Barton

Morrissey of Bennington

Myers of Essex

O'Donnell of Vernon

Otterman of Topsham

Oxholm of Vergennes

Peaslee of Guildhall

Perry of Richford

Scheuermann of Stowe

Shand of Weathersfield

Valliere of Barre City

Wheeler of Derby

Winters of Williamstown

Wright of Burlington

Those who voted in the negative are:

Ancel of Calais

Andrews of Rutland City

Aswad of Burlington

Atkins of Winooski

Audette of S. Burlington

Bissonnette of Winooski

Botzow of Pownal

Bray of New Haven

Browning of Arlington

Chen of Mendon

Cheney of Norwich

Clarkson of Woodstock

Consejo of Sheldon

Copeland-Hanzas of Bradford

Corcoran of Bennington

Courcelle of Rutland City

Davis of Washington

Deen of Westminster

Donahue of Northfield

Donovan of Burlington

Dostis of Waterbury

Edwards of Brattleboro

Emmons of Springfield

Fallar of Tinmouth

Fisher of Lincoln

Fitzgerald of St. Albans City

Frank of Underhill

French of Randolph

Gervais of Enosburg

Gilbert of Fairfax

Godin of Milton

Grad of Moretown

Haas of Rochester

Head of S. Burlington

Heath of Westford

Hosford of Waitsfield

Howard of Rutland City

Howrigan of Fairfield

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Jewett of Ripton

Johnson of South Hero

Keenan of St. Albans City

Keogh of Burlington

Klein of East Montpelier

Kupersmith of S. Burlington

Larson of Burlington

Lenes of Shelburne

Leriche of Hardwick

Lippert of Hinesburg

Lorber of Burlington

Maier of Middlebury

Malcolm of Pawlet

Manwaring of Wilmington

Marek of Newfane

Martin, C. of Springfield

Martin of Wolcott

Masland of Thetford

McAllister of Highgate

McCormack of Rutland City

McCullough of Williston

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Mitchell of Barnard

Mook of Bennington

Moran of Wardsboro

Mrowicki of Putney

Nease of Johnson

Nuovo of Middlebury

Obuchowski of Rockingham

Ojibway of Hartford

Orr of Charlotte

Partridge of Windham

Pearson of Burlington

Pellett of Chester

Peltz of Woodbury

Peterson of Williston

Pillsbury of Brattleboro

Potter of Clarendon

Pugh of S. Burlington

Randall of Troy

Rodgers of Glover

Sharpe of Bristol

Smith of Morristown

Spengler of Colchester

Stevens of Shoreham

Sweaney of Windsor

Trombley of Grand Isle

Westman of Cambridge

Weston of Burlington

Zenie of Colchester

Zuckerman of Burlington

Those members absent with leave of the House and not voting are:

Allard of St. Albans Town

Anderson of Montpelier

Barnard of Richmond

Branagan of Georgia

Condon of Colchester

Evans of Essex

Hube of Londonderry

Johnson of Canaan

Kitzmiller of Montpelier

Koch of Barre Town

Larrabee of Danville

Livingston of Manchester

Monti of Barre City

Shaw of Derby

Turner of Milton

Rep. Haas of Rochester explained her vote as follows:

“Madam Speaker:

     It is hard to imagine how the State of Vermont could ever do enough to increase public awareness of the dangers to children from lead exposure.  But that effort is underway.  Every member of the environmental health team at the Dept. of Health includes lead education in their work with the public.  This bill is an important step to educate all our neighbors.”

Rep. McAllister of Highgate explained his vote as follows:

“Madam Speaker:

     I do not think recommitting the bill will change the fact we were told there was no money, and that is the biggest problem.”

Rep. Morrissey of Bennington explained her vote as follows:

“Madam Speaker:

     I guess our actions speak louder than our words.  What are we so afraid of in developing a solid plan in regards to the critical resources and education piece need for this comprehensive bill?”

     Thereupon, the report of the committee on Human Services was agreed to and third reading ordered.

Recess

At one o’clock and forty-five minutes in the afternoon, the Speaker declared a recess until the fall of the gavel.

At two o’clock and twenty-five minutes in the afternoon, the Speaker called the House to order.

Action on Bill Postponed

H. 709

House bill, entitled

An act relating to campgrounds;

Was taken up and pending the reading of the report of the committee on General, Housing and Military Affairs, on motion of Rep. Wright of Burlington, action on the bill was postponed until the next legislative day.

Favorable Report; Third Reading Ordered

J.R.H. 45

Rep. Oxholm of Vergennes, for the committee on Education, to which had been referred Joint resolution, entitled

Joint resolution urging Congress to repeal the planned Competitive Loan Auction Pilot program for the Federal Family Education Loan program’s PLUS LOANS to parents;

Reported in favor of its passage.  The resolution, having appeared on the Calendar one day for notice, was taken up, read the second time and third reading ordered.

Senate Proposal of Amendment Concurred in

H. 575

     The Senate proposed to the House to amend House bill, entitled

     An act relating to small eligible telecommunications carriers;

     In Sec. 1, 30 V.S.A. §227d(b)(4), by striking out the second sentence in its entirety.

     Which proposal of amendment was considered and concurred in.

Message from the Senate No. 29

     A message was received from the Senate by Mr. Gibson, its Secretary, as follows:

Madam Speaker:

     I am directed to inform the House that the Senate requests the House to return to the custody of the Senate a bill originating in the House of the following title:

H. 737.  An act relating to fiscal year 2008 budget adjustments.

Rules Suspended; Bill Messaged to Senate Forthwith

H. 737

Pending entrance of the bill on the Calendar for notice, on motion of Rep. Adams of Hartland,  the rules were suspended and House bill, entitled

An act relating to fiscal year 2008 budget adjustments;

Was taken up for immediate consideration.

Thereupon, Rep. Adams of Hartland moved that pursuant to the request of the Senate, custody of the bill be returned to the Senate, which was agreed to.

     On motion of Rep. Adams of Hartland, the rules were suspended and the bill was ordered messaged to the Senate forthwith.

Rules Suspended; Bill Recommitted

H. 871

On motion of Rep. Lippert of Hinesburg, the rules were suspended and House bill, entitled

An act relating to professional requirements for the deputy attorney general, assistant attorneys general, probate judges, deputy state’s attorneys, constables and sheriffs;

Appearing on the Calendar for notice, was taken up for immediate consideration. 

Thereupon, Rep. Lippert of Hinesburg moved to recommit the bill to Judiciary, which was agreed to.

Message from the Senate No. 30

     A message was received from the Senate by Mr. Marshall, its Assistant Secretary, as follows:

Madam Speaker:

I am directed to inform the House that the Senate has on its part passed Senate bill of the following title:

S. 358.  An act relating to enhanced driver licenses.

     In the passage of which the concurrence of the House is requested.

Adjournment

At two o’clock and thirty-five minutes in the afternoon, on motion of Rep. Komline of Dorset, the House adjourned until tomorrow at ten o’clock in the forenoon.