ASSEMBLY, No. 1984
STATE OF NEW JERSEY
INTRODUCED MAY 6, 1996
By Assemblywoman WRIGHT, Assemblymen ASSELTA, Kramer, Assemblywoman Murphy and Assemblyman Bateman
An ACT concerning lead evaluation and abatement, amending and supplementing P.L.1993, c.288, and repealing sections 14 through 24 of P.L.1993, c.288.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.1993, c.288 (C.26:2Q-2) is amended to read as follows:
2. As used in sections 1 through 12 of P.L.1993, c.288 (C.26:2Q-1 through C.26:2Q-12) and sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill):
"Business firm" means a corporation, company, association, society, firm, partnership or joint stock company, or any sole proprietor, engaged in, advertising, or holding itself out to be in the business of lead evaluation or lead abatement.
"Commissioner" means the Commissioner of Health.
"Department" means the Department of Health.
"Lead abatement" means a process designed either to mitigate or to eliminate permanently lead-based paint hazards on a premises and includes, but is not limited to: the removal of lead-based paint and lead-contaminated dust; the containment or encapsulation of lead-based paint; the replacement of lead-painted surfaces or fixtures; the removal or covering of lead-contaminated soil; and all preparation, cleanup, disposal and post-abatement clearance testing activities associated with such measures.
"Lead evaluation" means a surface-by-surface investigation to determine the presence of lead-based paint and the provision of a report [explaining] detailing the results of the investigation.
"Lead-based paint" means paint or other surface coating material that contains lead in excess of 1.0 milligrams per centimeter squared or in excess of 0.5% by weight, or such other level as may be established by federal law.
"Lead-based paint hazard" means any condition that causes exposure to lead from lead-contaminated dust or soil or lead-contaminated paint that is deteriorated or present in surfaces, that would result in adverse human health effects.
"Surface" means an area such as an interior or exterior wall, ceiling, floor, door, door frame, window sill, window frame, porch, stair, handrail and spindle, or other abradable surface, soil, furniture, a carpet, a radiator or a water pipe.
(cf: P.L.1993, c.288, s.2)
2. Section 4 of P.L.1993, c.288 (C.26:2Q-4) is amended to read as follows:
4. a. The department shall develop, offer, or accredit training courses which shall be required for certification. These training courses shall include instruction in safe and effective evaluation and abatement methods. The training courses shall be developed in accordance with regulations adopted by the [Department of Community Affairs pursuant to sections 14 through 24 of P.L.1993, c.288 (C.52:27D-427 through C.52:27D-437)] department and the "State Uniform Construction Code Act," P.L.1975, c.217 (C.52:27D-119 et seq.).
b. The training course for persons performing lead evaluation shall include, but not be limited to, instruction in:
(1) safe and effective techniques and methods to test for lead hazards and assess lead hazards on premises before, during and after abatement of lead hazards;
(2) risk assessment of the dangers posed by lead hazards on a premises and the effectiveness of various abatement techniques and methods and hazard reduction measures to reduce the risk posed by the presence of lead;
(3) safe work practices, including determining whether occupants must be relocated during lead abatement;
(4) practices to prevent contamination of the premises; and
(5) applicable State and federal requirements.
c. The training course for persons performing lead abatement shall include, but not be limited to, instruction concerning:
(1) safe and effective abatement techniques to remove, cover, encapsulate, or otherwise mitigate lead-based paint and lead-contaminated dust and soil;
(2) possible routes of exposure during abatement of lead hazards;
(3) safe work practices, including determining whether occupants must be relocated during lead abatement;
(4) proper cleanup of lead-contaminated waste generated on the premises during and after lead abatement;
(5) safe and lawful handling, transport and disposal of lead-contaminated waste; and
(6) applicable State and federal requirements.
d. The commissioner is authorized to adopt any applicable federal requirements or guidelines established by federal law, including any requirements or guidelines that apply to homeowners or other property owners, notwithstanding that the requirements or guidelines may be inconsistent with the provisions of sections 1 through 12 of P.L.1993, c.288 (C.26:2Q-1 through C.26:2Q-12).
e. The department may establish continuing education requirements for recertification.
f. A person shall not hold himself out as accredited by the department or otherwise represent that he is competent to offer training unless he has been accredited to provide training pursuant to this section.
(cf: P.L.1993, c.288, s.4)
3. Section 5 of P.L.1993, c.288 (C.26:2Q-5) is amended to read as follows:
5. a. The department may deny, suspend, impose conditions upon, revoke, or refuse to renew a certification for good cause, including but not limited to, the department's finding that:
(1) a person has obtained a certification based upon a misrepresentation or fraud;
(2) a person performed work without a certification as required in section 3 of P.L.1993, c.288 (C.26:2Q-3);
(3) a person engaged in unsafe work practices, violated the rules promulgated by the [Department of Community Affairs pursuant to sections 14 through 24 of P.L.1993, c.288 (C.52:27D-427 through C.52:27D-437)] department, failed to obtain a permit pursuant to the Uniform Construction Code, N.J.A.C.5:23-1.1 et seq. or acted in a manner which posed a health risk to others;
(4) the quality of the person's performance is below standards set by the department and remedial measures such as consultation and training are not accepted or do not result in improvement to a level of acceptable proficiency;
(5) a person made false reports or reports not based on work done;
(6) a person knowingly authorized or permitted the use of the name of a certified person to an uncertified person;
(7) a person falsely represented his certification credentials; or
(8) a person has violated any provision of sections 1 through 12 of P.L.1993, c.288 (C.26:2Q-1 through C.26:2Q-12).
b. An applicant or certificate holder whose application or certification is denied, suspended, conditionally issued, revoked or not renewed is entitled to a hearing pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
c. Denial of, suspension of, imposition of conditions upon, revocation of, or refusal to renew a certification shall not limit the department from pursuing against the applicant or certificate holder any other lawful remedy available to the department.
d. Any person whose certification has been revoked shall be ineligible to apply for certification for three years from the date of revocation.
(cf: P.L.1993, c.288, s.5)
4. Section 11 of P.L.1993, c.288 (C.26:2Q-11) is amended to read as follows:
11. Sections 1 through 12 of P.L.1993, c.288 (C.26:2Q-1 through C.26:2Q-12) and sections 6 through 13 of P.L. c. (C. )(pending before the Legislature as this bill) shall be enforced by the commissioner or his representative, who shall have the right of entry to all premises at which the department has reason to believe that lead abatement or evaluation activities have taken place or are taking place, or to any premises occupied or used by a business firm [subject to sections 14 through 24 of P.L.1993, c.288 (C.52:27D-427 through C.52:27D-437)]; and the right to review any records for the purposes of inspection or investigation.
(cf: P.L.1993, c.288, s.11)
5. Section 12 of P.L.1993, c.288 (C.26:2Q-12) is amended to read as follows:
12. The department[, in consultation with the Department of Community Affairs, ] shall adopt rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to carry out the provisions of sections 1 through 12 of P.L.1993, c.288 (C.26:2Q-1 through C.26:2Q-12).
(cf: P.L.1993, c.288, s.12)
6. (New section) a. A business firm shall neither directly nor indirectly perform lead evaluation or abatement work without first obtaining certification from the department. Certification shall be issued to perform lead evaluation or abatement work if the business firm employs or will employ sufficient numbers and types of personnel certified by the department pursuant to section 3 of P.L.1993, c.288 (C.26:2Q-3) to perform lead abatement work and meets all other requirements that the commissioner may establish pursuant to section 12 of P.L. , c. (C. )(pending before the Legislature as this bill). The certification shall be in writing, shall contain an expiration date, and shall be signed by the commissioner.
A business firm certified by the department pursuant to this subsection shall submit to the department a written statement signed by the owner of the firm verifying that each of its employees or subcontractors performing lead evaluation or abatement work has been certified pursuant to section 3 of P.L.1993, c.288 (C.26:2Q-3) and will perform this work in accordance with all applicable local, State and federal requirements, including all applicable record-keeping requirements.
b. A person or business firm shall not undertake a project involving lead abatement work without first obtaining a construction permit for that project pursuant to section 12 of P.L.1975, c.217 (C.52:27D-130). No permit shall be issued for lead abatement work, except to:
(1) an owner undertaking work on his own premises using his own employees, if those employees are certified by the department pursuant to section 3 of P.L.1993, c.288 (C.26:2Q-3);
(2) a homeowner proposing to perform lead abatement work himself on a dwelling unit that he owns and occupies as a primary place of residence; or
(3) a business firm certified pursuant to this section to perform such work.
The issuance of a construction permit to an individual homeowner proposing to perform lead abatement work on a dwelling unit that he owns and occupies as a primary place of residence shall be accompanied by written information developed by the department explaining the dangers of improper lead abatement, procedures for conducting safe lead abatement, and the availability of certified lead abatement contractors, or of any available training for homeowners. c. Nothing in this section shall be construed to restrict or otherwise affect the right of any business firm to engage in painting, woodworking, structural renovation or other indoor or outdoor contracting services that may result in the disturbance of paint, but a business firm shall not hold itself out as certified by the department or otherwise represent that it has specialized competency to perform lead evaluation or abatement work unless it has been certified or otherwise specifically authorized pursuant to this section.
7. (New section) The certification required pursuant to section 6 of P.L. , c. (C. )(pending before the Legislature as this bill) shall be for a period not to exceed two years and shall not be transferable. A business firm may apply for recertification during the 90-day period before the certification expiration date, or the 90-day period after the certification expiration date; except that if a business firm applies after the certification expiration date, the firm shall not perform any services for which certification is required until the certification is renewed. If a certification has expired for more than 90 days, the business firm is required to obtain a new certification.
A copy of the certification shall be conspicuously displayed for public review in the business office of a business firm engaged in the business of abating lead-based paint hazards or conducting lead evaluations. Additionally, the certification number shall be displayed on all business vehicles and at all lead abatement or lead evaluation jobs in progress.
A certification or recertification shall not be issued until a certification fee has been paid in full to the department. The commissioner may establish application and certification fees by regulation pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), in an amount sufficient to cover the costs to the department of administering and enforcing the provisions of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill).
8. (New section) a. The department may deny, suspend, impose conditions upon, revoke, or refuse to renew a certification issued pursuant to section 6 of P.L. , c. (C. )(pending before the Legislature as this bill) for good cause, including:
(1) violating, or abetting another to commit a violation of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill);
(2) making a false statement on an application for certification, or in providing other information required by the department;
(3) misrepresentation of qualifications, or fraudulently obtaining certification;
(4) engaging in practices during lead abatement work contrary to safe procedures established therefor; and
(5) employing persons to perform lead abatement or lead evaluation work who are not certified pursuant to section 3 of P.L.1993, c.288 (C.26:2Q-3) to perform such work.
b. A business firm whose application or certification is denied, suspended, conditionally issued, revoked, or not renewed is entitled to a hearing pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
c. Denial of, suspension of, the imposition of conditions upon, revocation of, or refusal to renew a certification shall not limit the department from pursuing against the applicant or certificate holder any other lawful remedy available to the department.
d. A business firm whose certification has been revoked shall be ineligible to apply for certification for three years from the date of revocation. This ineligibility shall extend to any other business firm having any proprietor, officer, director, general partner, or shareholder or limited partner with at least a 10% interest, in common with the business firm whose certification was revoked.
9. (New section) If the department has reason to believe that a condition exists that poses an imminent threat to the public health, safety or welfare, the department may initiate a civil action in a court of competent jurisdiction for injunctive relief to enforce or prevent a violation of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill). The court may proceed in the action in a summary manner.
10. (New section) A person who knowingly or purposely:
a. hinders or delays the department in the enforcement of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill);
b. fails to obtain certification required by sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill);
c. refuses to make his certification issued pursuant to section 6 of P.L. , c. (C. )(pending before the Legislature as this bill) accessible to the commissioner; or
d. otherwise violates any provision of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill); is guilty of a disorderly persons offense. If the person is a corporation, all officers, directors, and shareholders owning at least a 10% interest in the corporation may be held liable for any violation by the corporation pursuant to this section.
The owner of a business firm shall be held liable for any failure by an employee or subcontractor of the firm to adhere to the provisions of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill).
11. (New section) As an alternative, or in addition to the provisions of section 10 of P.L. , c. (C. )(pending before the Legislature as this bill), the commissioner may, subject to notice and hearing, impose an administrative civil penalty for a violation set forth in this section not to exceed $1,000 for the first offense and $5,000 for each subsequent offense. If the violation is of a continuing nature, each day it continues constitutes an additional and separate violation. The penalty may be sued for and recovered by and in the name of the commissioner in a civil action in a court of competent jurisdiction by a summary proceeding under "the penalty enforcement law," N.J.S.2A:58-1 et seq. For the purposes of this act, the Superior Court and the municipal court shall have jurisdiction to enforce the provisions of "the penalty enforcement law."
The department may compromise and settle a claim for a penalty under this section in such amount as the department determines to be appropriate and equitable.
a. As used in this section, a violation shall include the:
(1) obstructing, hindering, delaying or interfering by force or otherwise with the commissioner in the exercise of any power or the discharge of any function or duty pursuant to the provisions of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill);
(2) preparing, uttering or rendering of any false statements, reports, documents, plans or specifications permitted or required pursuant to sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill); or
(3) refusal or failure to comply with a ruling, action, order or notice of the commissioner pursuant to sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill).
b. A person shall be deemed to have violated or caused to be violated the provisions of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill) if an officer, agent or employee under his control has violated or caused to be violated any provision of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill).
c. If a person subject to sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill) is a corporation, all officers, directors and shareholders having at least a 10% interest shall be jointly and individually liable for any violation by the corporation. d. The owner of a business firm shall be held liable for any failure by an employee or subcontractor of the firm to adhere to the provisions of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill).
12. (New section) The department shall adopt regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to implement the provisions of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill), including regulations prescribing standards for the performance of lead abatement work. Additionally, the commissioner may adopt any applicable requirements or guidelines established by federal law or regulation, including any requirements or guidelines that apply to homeowners or other property owners, notwithstanding that the requirements or guidelines may be inconsistent with the provisions of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill).
13. (New section) The department shall delegate, by rule or by interagency agreement pursuant to R.S.52:14-4, to the Department of Labor, its administrative and enforcement duties and functions pursuant to the provisions of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill) relating to the certification of business firms to perform lead evaluation or abatement work on public buildings, commercial buildings, bridges or any other buildings or structures that do not contain dwelling units. When the Department of Labor receives such a delegation, the Department of Labor shall be reimbursed by the department in an amount that is sufficient to cover the costs incurred by the Department of Labor in administering and enforcing the provisions of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill). The costs incurred by the Department of Labor in administering and enforcing this act shall be annually certified by the Director of the Office of Management and Budget in the Department of the Treasury. The Department of Health shall have ultimate responsibility for ensuring that lead evaluation and abatement work on all buildings and structures conforms to the requirements of sections 6 through 13 of P.L. , c. (C. )(pending before the Legislature as this bill).
14. Sections 14 through 24 of P.L.1993, c.288 (C.52:27D-427 through 52:27D-437) are repealed.
15. This act shall take effect immediately.
STATEMENT
This bill makes the Department of Health responsible for enforcing standards for lead evaluation and abatement work in all buildings and structures.
The bill repeals sections 14 through 24 of P.L.1993, c.288 (C.52:27D-427 through 52:27D-437) which provide the Department of Community Affairs with responsibility for certifying business firms doing lead evaluation and abatement work, and transfers the provisions of these repealed sections to Title 26 of the Revised Statutes, thereby consolidating the responsibility for enforcing lead evaluation and abatement work standards in the Department of Health. The latter is already required to certify lead evaluators and lead abatement workers pursuant to sections 1 through 12 of P.L.1993, c.288 (C.26:2Q-1 et seq.).
The need for an adequate supply of certified professionals for lead evaluation and abatement work has been intensified by federal government regulations which require the disclosure of lead-based paint for all sales and leases of residential housing. It is anticipated that this requirement will result in over 20,000 lead inspections annually in New Jersey. When combined with the 3,000 annual childhood lead poisoning cases handled by the Department of Health, this increased demand for services will make it difficult for the State to adequately address this problem, and thereby potentially jeopardize the health of more children.
Makes Department of Health responsible for enforcing standards for lead evaluation and abatement work in all buildings and structures.