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BILL AS INTRODUCED 2007-2008

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H.352

Introduced by Representatives Obuchowski of Rockingham, Head of S. Burlington and Pugh of S. Burlington

Referred to Committee on

Date:

Subject:  Health; housing; lead poisoning; prevention; essential maintenance practices; enforcement; lead hazard education and cleanup revolving fund

Statement of purpose:  This bill proposes to:  (1) improve compliance with essential maintenance practices (EMPs) by imposing and collecting fines from violators and by collecting and maintaining lead hazard data for target housing; (2) require health care providers to test all one‑ and two‑year‑old children for lead; (3) encourage court‑ordered permanent lead hazard controls in cases of serious EMP violations; (4) provide resources for lead‑safe practices and to finance lead hazard education and clean‑up by creating a fund; (5) prohibit unsafe work practices wherever lead‑based paint is likely to be disturbed; (6) increase public awareness of the dangers of lead in housing to humans, particularly children;  and (7) give municipalities authority to enforce lead hazard laws.

AN ACT RELATING TO REDUCING LEAD HAZARDS IN HOUSING

Sec. 1.  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 then 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 licensed by the department to perform the duties of an inspector or risk assessor conduct inspections.  

* * *

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

* * *

(8)  “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 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.

(9)  “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.

(10)  “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 consultant who has no financial interest 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 consultant 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)(11)  “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)(12)  “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)(13)  “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.

(14)  “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.

(15)  “Lead consultant” means any person licensed to engage in the business of designing, project monitoring, inspecting, performing risk assessments, and evaluating lead hazard reduction or abatement projects and licensed by the commissioner.

(16)  “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 design lead abatements projects.

(17)  “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 prepare abatement project designs, occupant protection plans, and abatement reports.

(18)  “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.

(19)  “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.

(20)  “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 prepare, supervise, and conduct occupant protection plans and abatement reports. 

(14)(21)  “Lead‑based paint hazard” or “LBP” “Lead hazard” means any condition that causes exposure to lead 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 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.

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

(18)(23)  “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)(24)  “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.

(20)(25)  “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 minor 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.

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

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

(24)(28)  “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. 2.  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 engage in any activity likely to disturb 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. 3.  18 V.S.A. § 1753 is amended to read:

§ 1753.  ACCREDITATION 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 = $400.00 $480.00 per year

Lead contractors = $500.00 $600.00 per year

Lead workers = $50.00 $60.00 per year

Supervisors Lead supervisors = $50.00 $120.00 per year

Inspectors Lead consultants = $150.00 $180.00 per year

Risk assessors Lead risk assessors = $150.00 $180.00 per year

Designers Lead designers = $150.00 $180.00 per year

Lead‑safe renovators = $50.00 per year

Laboratories = $500.00 $600.00 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. 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 receive a confirmation test, and recommended nutrition and housekeeping practices.  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 per deciliter of blood or more.

(d)(c)  Any health care provider or employee thereof making the diagnosis of lead poisoning with a patient with a confirmation test result of 10 micrograms per deciliter of blood or more, shall report such diagnosis that information to the department within such time and using such format as pursuant to requirements of the department shall prescribe.  Any laboratory in Vermont which that analyzes blood samples of children below the age of six for lead levels shall report to the department such 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 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, and address of the individual whose blood is analyzed and the owner of the residence of that person, if known.

(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 levels in young children 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)  A summary of annual EMP compliance rates.

(4)  A summary of enforcement activities.

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

(6)  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 minor child under age six has been diagnosed by a qualified physician to have lead poisoning a blood lead level of ten micrograms of lead per deciliter, or a lower level as determined by the commissioner, the commissioner shall take prompt action to confirm the diagnosis.

(b)  If the child is severely lead poisoned, the commissioner shall Upon receiving a report that a minor child has an elevated blood lead level, the commissioner shall provide information on lead hazards to the parents or guardians of the child, and, if resources permit, provide for 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.  The commissioner a lead risk assessor, and 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. For any fiscal year in which due to lack of resources the commissioner is unable to provide this inspection for 20 percent or more of the children with a confirmed blood lead level at or above ten micrograms of lead per deciliter of blood, the commissioner shall report this lack of resources to the general assembly no later than October 15, following the end of that fiscal year.

(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, and shall require lead hazards in the target housing to be identified and abated or addressed through interim controls.    

(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 The commissioner shall promptly take necessary enforcement action, including an enforcement action, to control lead hazards in target housing or a child care facilityEnforcement 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. 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 The department of housing and community affairs shall establish and maintain a comprehensive list of target housing units which:

(1)  that as of a specific date, are lead free or lead safe, as determined by the commissioner;

(2)  that have undergone lead hazard control measures and, as of a specific date, passed independent dust clearance tests;

(3)  in which a child has had an elevated blood lead level; and

(4)  otherwise known to the departmentThe registry shall be maintained as a public record.

(c)  The department of social and rehabilitation services 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.

(d)  The data collected under this section shall be released to the public to the extent not prohibited by the American Health Insurance Portability and Accountability Act of 1996 (HIPAA).

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 is presumed to be lead‑based unless a certified state 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 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 a lead‑based painted surface, pursuant to guidelines issued by the department.  The following essential maintenance practices on their property shall be performed on all rental target housing and child care facilities, unless a state 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)  If more than one square foot of deteriorated paint is found on any exterior wall surface or fixture not covered by subdivision (4) 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.

(4)  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.    

(5)  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)  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. 

(6)  At each change of tenant, using methods recommended by the department thoroughly clean all interior horizontal surfaces of the dwelling unit, except ceilings.

(7)  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.

(7)  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 subdivisions (2) and (3) of this subsection have been complied with, including 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 EMPsThe 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 tenantsAnnually, 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 the EPA pamphlet “Protect Your Family from Lead in Your Home” or other written lead hazard information 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 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:  limiting access to interior and exterior work areas; enclosing interior work areas with plastic sheathing or other effective lead dust barrier; using protective clothing; misting painted surfaces before disturbing paint; wetting paint debris before sweeping to limit dust creation; and any other measure required by the department.

(b)  If it is determined that a person is disturbing painted surfaces 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 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 elevated blood lead level of the minor 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.

(d)  A person may appeal a violation determination and penalty to the superior court in Washington County within 30 days after the determination is issued.  The superior court review shall be pursuant to Rule 74 of the Vermont Rules of Civil Procedure.  The appeal shall be limited to a review of the record, and the court shall determine only whether the violation determination and penalty are arbitrary, capricious, or contrary to law.

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

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 hazards by completing risk assessment and controls and who has had a licensed inspector state inspector or 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 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 minor 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 an 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 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 with an elevated blood lead level on the property and, upon request, provides 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 license under section 1752(d) 1753 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.

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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 cleanup fund is created in the state treasury, to be expended by the Vermont housing and conservation board (VHCB) to assist Vermont families and property owners to control lead hazards in housing.  VHCB shall administer the fund in compliance with the policies and priorities of the VHCB lead‑based paint hazard reduction program and 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, fees collected for lead hazard creation, donations, gifts, payments in lieu of penalties, administrative penalties related to lead hazard, and any funds appropriated by the general assembly for this purpose.  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)  Four members of the Vermont housing and conservation board 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.  DEPARTMENT OF HEALTH; LEAD HAZARD CREATION FEE

(a)  No later than January 15, 2008, the department of health shall make recommendations to the general assembly for creation of a program to assess fees on manufacturers and other persons who historically have contributed or are currently contributing to the creation of environmental or occupational lead hazards through the commerce of lead, lead‑based substances, or lead‑added products or who are otherwise responsible for identifiable sources of lead.  The fees collected will be deposited in the lead hazard cleanup fund created in 18 V.S.A. §1766.  The department’s recommendation shall include a schedule of fees, who shall be assessed those fees, and methods of collection. 

(b)  In recommending who should be assessed a fee, the department shall consider the following criteria:

(1)  The person’s past and present responsibility for creating lead hazards.

(2)  The person’s relative responsibility for creating lead hazards based on the person’s market share of products containing lead.

(3)  The lead content of products sold in this state by the person.

(4)  Reports of environmental releases or off‑site transfers of lead by the person under chapter 26 of Title 38.

(5)  The person’s role or potential for causing occupational lead poisoning.

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:

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(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.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us