CHAPTER 276
HB 226-FN – FINAL VERSION
04Mar2009… 0220h
05/27/09 1693s
2009 SESSION
01/03
HOUSE BILL 226-FN
AN ACT relative to the lead paint poisoning law.
SPONSORS: Rep. Bridgham, Carr 2; Rep. DiPentima, Rock 16; Rep. P. McMahon, Merr 3; Sen. DeVries, Dist 18
COMMITTEE: Health, Human Services and Elderly Affairs
This bill makes certain changes to the lead paint law which include:
I. Allowing the commissioner of the department of health and human services to obtain an administrative inspection warrant under RSA 595-B for inspection purposes if the owner of the property denies consent.
II. Clarifying the persons who are to receive a copy of the order for lead hazard reduction.
III. Removing the 2-year limitation on interim controls used as an acceptable alternative to lead hazard abatement.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
04Mar2009… 0220h
05/27/09 1693s
09-0122
01/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to the lead paint poisoning law.
Be it Enacted by the Senate and House of Representatives in General Court convened:
276:1 Lead Paint Poisoning; Duties of the Commissioner. Amend RSA 130-A:2, I(f) to read as follows:
(f) Implement comprehensive case management for cases of lead poisoning when a child’s blood lead level meets or exceeds [15] 10 micrograms per deciliter. Case management shall include the coordination of medical services appropriate for the treatment of the reported lead poisoning.
276:2 New Paragraph; Investigations. Amend RSA 130-A:5 by inserting after paragraph III the following new paragraph:
IV. The commissioner may obtain an administrative inspection warrant under RSA 595-B if consent of the property owner or the owner’s agent for an investigation or inspection is denied.
276:3 Lead Paint Poisoning; Inspections. RSA 130-A:6, I-II are repealed and reenacted to read as follows:
I. The commissioner may, as part of an investigation conducted under RSA 130-A:5, conduct an inspection of any leased or rented dwelling or dwelling unit during business hours, or at a time mutually agreed upon with the owner or the owner’s agent, for the purposes of identifying the presence of lead base substances. The commissioner shall provide the findings of the inspection to the occupant and to the owner or the owner’s agent. If the leased or rented dwelling has multiple units, and if a lead exposure hazard is determined to exist during an investigation conducted under RSA 130-A:5, the commissioner shall conduct inspections of all other dwelling units of the leased or rented dwelling with the owner or owner’s agent for the purposes of identifying the presence of lead base substances. The commissioner shall provide the findings of the inspection to the occupant and the owner or the owner’s agent. When a lead exposure hazard is determined to exist per RSA 130-A:1, XVI(a), (b), or (c), the commissioner shall issue an order in accordance with RSA 130-A:7 requiring lead hazard reduction to the owner and, if appropriate, to the owner’s agent. When a lead exposure hazard is determined to exist per RSA 130-A:1, XVI(d), the commissioner may issue an order in accordance with RSA 130-A:7 requiring lead hazard reduction to the owner and, if appropriate, to the owner’s agent. The commissioner shall provide a copy of the order to the owner or owner’s agent and to the occupant of the dwelling unit. The commissioner shall notify all tenants of the dwelling of lead exposure hazard findings in common areas. Upon request, the owner or owner’s agent shall provide a copy of the order to the occupants of any dwellings or dwelling units located within the same lot at no charge.
II. The commissioner may, as part of an investigation conducted under RSA 130-A:5, if the lead-poisoned child spends 10 hours or more a week at the facility, and after making reasonable efforts to notify the owner of a child care facility and the license holder, conduct an inspection of a child care facility constructed prior to 1978, during business hours or at a time mutually agreed to, for the purposes of identifying the presence of lead base substances. The findings of the inspection shall be provided to the owner, to the license holder, and to the health authority. When a lead exposure hazard is determined to exist per RSA 130-A:1, XVI(a), (b), or (c), the commissioner shall issue an order in accordance with RSA 130-A:7 requiring lead hazard reduction to the owner and to the license holder. When a lead exposure hazard is determined to exist per RSA 130-A:1, XVI(d), the commissioner may issue an order in accordance with RSA 130-A:7 requiring lead hazard reduction to the owner and to the license holder. The commissioner shall provide a copy of the order to the owner and to the license holder and a notice of findings, to the state child care licensing unit, and to the health authority. The owner or license holder shall provide notice of the findings of lead hazard exposure, provided by the commissioner, to the parents or guardians of children who use the child care facility.
276:4 Lead Paint Poisoning; Enforcement. Amend RSA 130-A:7 to read as follows:
130-A:7 Enforcement.
I. Whenever the commissioner has reason to believe that the provisions of RSA 130-A:9, or any rule adopted by the commissioner under this chapter has been violated, the commissioner shall issue a notice of violation. The commissioner may also impose administrative fines under RSA 130-A:14 and may also request injunctive relief under RSA 130-A:17, I.
II. The commissioner, in requiring lead hazard reduction under RSA 130-A:6, I or II, shall do so by written order. The order shall include, as appropriate, the following information:
(a) The findings of the inspection, including the specific locations determined to constitute a lead exposure hazard.
(b) The methods appropriate for lead hazard reduction and copies of rules pertaining to lead hazard reduction adopted under the provisions of this chapter.
(c) The period of time within which lead hazard reduction shall be completed. The time period for lead hazard reduction of an occupied dwelling or dwelling unit shall not exceed 90 days except that the period may be extended at the discretion of the commissioner for the period of time determined to be reasonable by the commissioner under the circumstances of the case.
(d) The standards for reoccupancy of a dwelling or dwelling unit by a child, or the resumption of operations of a child care facility, after the conduct of lead hazard reduction.
(e) Responsibility for verification by a lead inspector or lead risk assessor of lead hazard reduction to the commissioner.
III. Any person subject to an order issued under this section may petition the superior court to review such order. The commissioner may also impose administrative fines under RSA 130-A:14 and may request injunctive relief under RSA 130-A:17, I in the event that an order, served by the commissioner, is not followed or a fine imposed by the commissioner is not paid.
IV. Any order issued by the commissioner that requires lead hazard reduction shall be binding upon and enforceable against the person to whom the order was issued and any other individual or entity that may acquire ownership of, or an interest in, the property that is subject to the order.
V. Interim controls, as defined in this chapter, may be used as an acceptable alternative to lead hazard abatement only with the prior written approval of the commissioner [and for a period not to exceed 2 years. Within that 2-year period the person subject to the order shall either take the steps necessary to eliminate or enclose the lead exposure hazards or remove the dwelling or dwelling unit from the rental market. For orders issued in leased or rented dwellings where no child resides or frequents regularly at the time of inspection and issuance of the order, interim controls may be used for a period exceeding 2 years with the prior written approval of the commissioner if a hardship is claimed by the lessor and approved by the commissioner] and if a lead exposure hazard reduction plan or any other subsequent plan is adopted and in place at the department to address compliance with the intent of this section. When interim controls are approved and maintained in response to an order, the person to whom the order was issued, and any other individual or entity that may acquire ownership of the property that is subject to the order, shall submit to the commissioner a certificate of compliance for interim controls from a licensed risk assessor annually prior to the expiration of the current certificate. When a certificate of compliance for interim controls is not issued by a licensed risk assessor prior to expiration of the current certificate or when an inspection by the commissioner, or designee, reveals that the property no longer meets the requirements of interim controls, the commissioner shall require submission of a certificate of compliance for abatement. The commissioner shall adopt rules, under RSA 541-A, for the procedures for [extensions of] interim controls.
VI. Any order issued by the commissioner shall be recorded in the registry of deeds for the county in which the property is situated and, upon recordation, the order shall run with the property.
276:5 Lead Paint Poisoning; Rulemaking. Amend RSA 130-A:10, III to read as follows:
III. The conduct of inspections and inspection standards for lead inspectors and lead risk assessors, including procedures for issuing certificates of inspection[,] and certifications of compliance[, and certifications when a dwelling or dwelling unit is found to be lead free, certifications when a dwelling unit is found to be lead safe] and for the review and validation of such certificates or certifications by the department for any person who so requests.
276:6 Rulemaking. Amend RSA 130-A:10, X to read as follows:
X. Procedures for notice and opportunity for a hearing prior to the imposition of an administrative fine imposed under RSA 130-A:14.
276:7 Administrative Fines. Amend RSA 130-A:14 to read as follows:
130-A:14 Administrative Fines. The commissioner, after notice and opportunity for a hearing, and pursuant to rules adopted under RSA 541-A, may impose an administrative fine not to exceed $2,000 for each offense upon any person who violates any provision of this chapter or rules adopted under this chapter. Rehearings and appeals from a decision of the commissioner shall be in accordance with RSA 541. Any administrative fine imposed under this section shall not preclude the imposition of further penalties or administrative actions under this chapter. The commissioner shall adopt rules, under RSA 541-A, relative to administrative fines which shall be scaled to reflect the scope and severity of the violation. The sums obtained from the levying of administrative fines under this chapter shall be forwarded to the state treasurer to be deposited into the lead poisoning prevention fund established in RSA 130-A:15.
276:8 Lead Paint Poisoning; Injunctive Relief. Amend RSA 130-A:17 to read as follows:
130-A:17 Injunctive Relief.
I. Either the attorney general or the commissioner may bring a civil action in superior court for appropriate relief, including a temporary or permanent injunction or both, to enforce any provision of this chapter, rules adopted under this chapter, or orders issued pursuant to this chapter, including but not limited to, orders of lead hazard abatement and orders imposing administrative fines.
II. The court hearing shall be held on an expedited basis and as soon as the court’s docket permits.
III. Either party may request that the court hold a consolidated hearing for both temporary and permanent injunctive relief.
276:9 Effective Date.
I. RSA 130-A:7, V as inserted by section 4 of this act shall take effect upon its passage.
II. The remainder of this act shall take effect January 1, 2010.
Approved: July 29, 2009
Effective Date: I. RSA 130-A:7, V as inserted by section 4 shall take effect July 29, 2009.
II. Remainder shall take effect January 1, 2010