Session of 1999
         
HOUSE BILL No. 2314
         
By Representatives Haley and Storm, Adkins, Ballard, Barnes, Benlon,
                 Campbell, Cox, Crow, Findley, Flaharty, Franklin, Gilbert, Hender-
                son, Henry, Huff, Kirk, Morrison, Pauls, Reardon, Rehorn, Sharp,
                Spangler, Swenson and Tomlinson
               
2-8
          
12             AN  ACT enacting the childhood lead poisoning prevention act; requiring
13             licensure of business entities and public agencies; certification of per-
14             sons who provide, engage in or conduct lead-based paint activities;
15             accreditation of training programs; prohibiting certain acts; providing
16             penalties for violations; authorizing a childhood lead poisoning pre-
17             vention program.
18      
19       Be it enacted by the Legislature of the State of Kansas:
20             Section  1. This act shall be known and may be cited as the childhood
21       lead poisoning prevention act.
22             Sec.  2. Definitions. As used in this act:
23             (a) "Abatement" means any measure or set of measures designed to
24       permanently eliminate lead-based paint hazards as defined in the federal
25       program.
26             (b) "Accredited training program" means a training program that has
27       been accredited by the federal program or the secretary to present train-
28       ing courses to individuals engaged in lead-based paint activities.
29             (c) "Business entity" means a company, partnership, corporation, sole
30       proprietorship, association, or other business concern.
31             (d) "Certificate" means an authorization issued by the secretary per-
32       mitting an individual to engage in lead-based paint activities.
33             (e) "Federal program" means subpart L, lead-based paint activities
34       of 40 CFR part 745, as in effect on the effective date of this act.
35             (f) "Lead-based paint" means paint or other surface coatings that
36       contain lead equal to or in excess of one milligram per square centimeter
37       or more than 0.5% by weight.
38             (g) "Lead-based paint activities" means the inspection, assessment
39       and abatement of lead-based paint, including the disposal of waste gen-
40       erated therefrom.
41             (h) "License" means an authorization issued by the secretary per-
42       mitting a business entity to engage in lead-based paint activities.
43             (i) "Public agency" means any state agency or political or taxing sub-

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  1       division of the state and those federal departments, agencies or instru-
  2       mentalities thereof which are not subject to preemption.
  3             (j) "Secretary" means the secretary of health and environment.
  4             (k) "Residential dwelling" means a single, double, triple or quadruple
  5       family dwelling used as a place of residence for habitation by an individual
  6       or the individual's immediate family, or both.
  7             (l) "Habitation" means a place of abode or residence where individ-
  8       uals eat, sleep and reside.
  9             (m) "Immediate family" means spouse, parent, stepparent, child,
10       stepchild or sibling.
11             Sec.  3. The secretary shall administer the provisions of this act. In
12       administering the provisions of this act, the secretary shall be authorized
13       to:
14             (a) Develop and implement a childhood lead poisoning prevention
15       program as necessary to protect the health of the children of Kansas,
16       which may include provisions to:
17             (1) Investigate the extent of childhood lead poisoning in Kansas;
18             (2) develop a data management system designed to collect and ana-
19       lyze information on childhood lead poisoning;
20             (3) develop and conduct programs to educate health care providers
21       regarding the magnitude and severity of and the necessary responses to
22       lead poisoning in Kansas;
23             (4) issue recommendations for the methods and intervals for blood
24       lead screening and testing of children, taking into account recommen-
25       dations by the United States centers for disease control and prevention;
26             (5) develop and issue health advisories urging health care providers
27       to conduct blood lead screening of children;
28             (6) encourage health care providers to ensure that parents and guard-
29       ians of children are advised of the availability and advisability of screening
30       and testing for lead poisoning;
31             (7) develop a program to assist local health departments in identifi-
32       cation and follow-up of cases of elevated blood lead levels in children and
33       other high-risk individuals; and
34             (8) in consultation with appropriate federal, state and local agencies,
35       develop a comprehensive public education program regarding environ-
36       mental lead exposures and lead poisoning by:
37             (A) Identifying appropriate target groups that are in a position to
38       prevent lead poisoning or reduce the number of children who are exposed
39       to lead;
40             (B) assessing the information needed for each of the target groups
41       and determine the best means of educating the members of each target
42       groups; and
43             (C) disseminating the information to the target groups in an effective

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  1       manner.
  2             (b) adopt rules and regulations necessary for the administration of
  3       this act including, but not limited to, licensure of business entities and
  4       public agencies, certification of individuals, accreditation of training pro-
  5       grams, on-site inspections and requirements, notification and record
  6       keeping, procedures and work practice standards relating to lead-based
  7       paint activities as are necessary to protect the public health and safety;
  8             (c) adopt by rules and regulations a reasonable schedule of fees for
  9       the issuance and renewal of certificates and licenses, training program
10       accreditations and on-site inspections. The fees shall be periodically in-
11       creased or decreased consistent with the need to cover the direct and
12       indirect costs to administer the program. The fees shall be based upon
13       the amount of revenue determined by the secretary to be required for
14       proper administration of the provisions of this act. State and local health
15       department personnel certifying for the purpose of environmental inves-
16       tigation of lead poisoned children shall be exempted from licensure fees;
17             (d) conduct on-site inspections of procedures being utilized by a li-
18       censee during an actual abatement project and conduct inspection of the
19       records pertaining to this act;
20             (e) adopt rules and regulations regarding the distribution of lead haz-
21       ard information to owners and occupants of housing prior to conducting
22       renovation activities in housing;
23             (f) develop rules and regulations to control and disposition and reuse
24       of architectural debris that contains lead-based paint.
25             Sec.  4. (a) A business entity or public agency shall not engage in a
26       lead-based paint activity unless the business entity or public agency holds
27       a license issued by the secretary for that purpose.
28             (b) Except as otherwise provided in this act, no individual shall en-
29       gage in lead-based paint activities unless the individual holds a certificate
30       issued by the secretary for that purpose. In order to qualify for a certifi-
31       cate, an individual must have successfully completed an accredited train-
32       ing program and pass a third party exam as required by the secretary. Any
33       individual who owns and resides in a residential dwelling may perform
34       lead-based paint activities within such residential dwelling even though
35       such individual does not hold a certificate for that purpose under this act.
36       All work performed by such individual owner of a residential dwelling
37       must be performed in accordance with state and federal guidelines or
38       statutes, or both.
39             Sec.  5. In order to qualify for a license, a business entity or public
40       agency shall:
41             (a) Ensure that each employee or agent of the business entity or pub-
42       lic agency who will engage in a lead-based paint activity is certified;
43             (b) demonstrate to the satisfaction of the secretary that the business

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  1       entity or public agency is capable of complying with all requirements,
  2       procedures and standards of the United States environmental protection
  3       agency, the United States occupational safety and health administration
  4       and the secretary, as applicable, to lead-based paint activities;
  5             (c) comply with all rules and regulations adopted by the secretary
  6       under this act; and
  7             (d) allow representatives of the secretary, after identification to enter
  8       and inspect any property or premises at any reasonable time for the pur-
  9       pose of inspecting lead-based paint activities as required in order to im-
10       plement provisions of this act.
11             Sec.  6. The secretary shall remit all moneys received from the fees
12       established pursuant to this act to the state treasurer at least monthly.
13       Upon receipt of each remittance, the state treasurer shall deposit the
14       entire amount thereof in the lead-based paint hazard fee fund established
15       in section 7 and amendments thereto.
16             Sec.  7. (a) There is established in the state treasury the lead-based
17       paint hazard fee fund. Revenue from the following sources shall be de-
18       posited in the state treasury and credited to the fund:
19             (1) Fees collected under this act for licensure and certification to
20       engage in lead-based paint activities, accreditation of training programs
21       and fees for evaluation of abatement projects;
22             (2) any moneys recovered by the state under this act, including ad-
23       ministrative expenses, civil penalties and moneys paid under any agree-
24       ment, stipulation or settlement;
25             (3) any moneys collected or received from public or private grants
26       and from gifts and donations; and
27             (4) interest attributable to investment of moneys in the fund.
28             (b) Moneys deposited in the fund shall be expended only for the
29       purpose of administering the Kansas lead poisoning prevention act and
30       for no other governmental purposes.
31             (c) On or before the 10th day of each month, the director of accounts
32       and reports shall transfer from the state general fund to the lead-based
33       paint hazard fee fund interest earnings based on:
34             (1) The average daily balance of moneys in the lead-based paint haz-
35       ard fee fund for the preceding month; and
36             (2) the net earnings rate of the pooled money investment portfolio
37       for the preceding month.
38             (d) All expenditures from the fund shall be made in accordance with
39       appropriation acts upon warrants of the director of accounts and reports
40       issued pursuant to vouchers approved by the secretary for the purposes
41       set forth in this section.
42             Sec.  8. (a) The secretary may refuse to issue a license or may suspend
43       or revoke any license issued under this act if the secretary finds, after

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  1       notice and hearing conducted in accordance with the provisions of the
  2       Kansas administrative procedure act, that the applicant or licensee has:
  3             (1) Fraudulently or deceptively obtained or attempted to obtain a
  4       license;
  5             (2) failed at any time to meet the qualifications for a license or to
  6       comply with any rules and regulations adopted by the secretary under
  7       this act;
  8             (3) failed at any time to meet any applicable federal or state standard
  9       for lead-based paint activities; or
10             (4) employed or permitted an uncertified individual to work on a
11       lead-based paint activity.
12             (b) The secretary may refuse to issue a certificate or may suspend or
13       revoke any certificate issued under this act if the secretary finds, after
14       notice and hearing conducted in accordance with the provisions of the
15       Kansas administrative procedure act, that the applicant for certificate or
16       certificate holder has:
17             (1) Fraudulently or deceptively obtained or attempted to obtain a
18       certificate; or
19             (2) failed at any time to meet qualifications for a certificate or to
20       comply with any provision or requirement of this act or any rules and
21       regulations adopted by the secretary under this act.
22             (c) The secretary may deny, suspend or revoke any accreditation of
23       a training program under this act if the secretary finds, after notice and
24       hearing conducted in accordance with the provisions of the Kansas ad-
25       ministrative procedure act, that the applicant for training program ac-
26       creditation or training provider has:
27             (1) Fraudulently or deceptively obtained or attempted to obtain ac-
28       creditation of a training program;
29             (2) failed at any time to meet the qualifications to obtain accreditation
30       of a training program or to comply with any rules and regulations adopted
31       by the secretary under this act;
32             (3) failed to maintain or provide information on training programs;
33       or
34             (4) falsified information, accreditation or approval records, instructor
35       qualification information or other accreditation or approval information
36       required to be submitted by the secretary.
37             (d) Any individual, business entity or accredited training program ag-
38       grieved by a decision or order of the secretary may appeal the order or
39       decision in accordance with the provisions of the act for judicial review
40       and civil enforcement of agency actions.
41             (e)  (1) If the secretary finds that the public health or safety is en-
42       dangered by the continuation of an abatement project, the secretary may
43       temporarily suspend, without notice or hearing in accordance with the

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  1       emergency adjudication procedures of the provisions of the Kansas ad-
  2       ministrative procedure act, the license of the business entity or public
  3       agency or the certificate of any person engaging in such abatement
  4       project.
  5             (2) In no case shall a temporary suspension of a license or certificate
  6       under this section be in effect for a period of time in excess of 90 days.
  7       At the end of such period of time, the license or certificate shall be re-
  8       instated unless the secretary has suspended or revoked the license or
  9       certificate, after notice and hearing in accordance with the provisions of
10       this act, or the license has expired as otherwise provided under this act.
11             Sec.  9. Whenever an authorized agency of the secretary finds that
12       any individual, business entity, accredited program or public agency is
13       not in compliance with this act or any rules and regulations adopted under
14       this act, it shall be the duty of such agent to notify the individual, business
15       entity, accredited program or public agency in writing of such changes or
16       alterations as the agency shall deem necessary in order to comply with
17       the requirements of this act and any rules and regulations adopted under
18       this act, and the agency shall file a copy of such notice with the secretary.
19       It shall thereupon be the duty of the individual, business entity, accredited
20       program or public agency to make such changes or alterations as are
21       contained in the written notice within five days from the receipt of such
22       notice.
23             Sec.  10. Any individual, business entity, public agency or accredited
24       training program which knowingly violates any provision of this act or any
25       rules and regulations adopted under this act is guilty:
26             (a) For a first offense, of a class C misdemeanor; and
27             (b) for a second offense or subsequent offense of a class B
28       misdemeanor.
29             Sec.  11. (a) Any individual, business entity, accredited training pro-
30       gram or public agency who violates any provision of this act or any rules
31       and regulations adopted under this act, in addition to any other penalty
32       or litigation provided by law, may incur a civil penalty imposed under
33       subsection (b) in a maximum amount not to exceed $1,000 for the first
34       violation, $5,000 for each subsequent violation and, in the case of a con-
35       tinuing violation, every day such previously notified violation continues
36       shall be deemed a separate violation.
37             (b) The secretary, upon finding that any individual, business entity,
38       accredited training program or public agency has violated any provision
39       of this act or any rules and regulations adopted under this act, may impose
40       a civil penalty within the limits provided in this section upon such indi-
41       vidual, business entity, accredited training program or public agency
42       which civil penalty shall be in an amount to constitute an actual and
43       substantial economic deterrent to the violation for which the civil penalty

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  1       is assessed.
  2             (c) The secretary, upon finding that an individual, business entity,
  3       accredited training program or public agency has violated any provision
  4       of this act or rules and regulations adopted under this act, may issue an
  5       order finding such individual, business entity, accredited training program
  6       or public agency in violation of this act and directing the individual, busi-
  7       ness entity, accredited training program or public agency to take such
  8       action as necessary to correct the violation.
  9             (d) No civil penalty shall be imposed under this section except upon
10       the written order of the secretary after notification and hearing, if a hear-
11       ing is requested, in accordance with the provisions of the Kansas admin-
12       istrative procedure act.
13             (e) Any individual, business entity, accredited training program or
14       public agency aggrieved by an order of the secretary made under this
15       section may appeal such order to the district court in the manner provided
16       by the act for judicial review and civil enforcement of agency actions.
17             (f) Any penalty recovered pursuant to the provisions of this section
18       shall be remitted to the state treasurer and deposited in the lead-based
19       paint hazard fee fund.
20             Sec.  12. Notwithstanding any other remedy and in addition to any
21       other remedy, the secretary may maintain, in the manner provided by the
22       act for judicial review and civil enforcement of agency actions, an action
23       in the name of the state of Kansas for injunction or other process against
24       any business entity or individual to restrain or prevent any violation of
25       the provisions of this act or of any rules and regulations adopted under
26       this act.
27             Sec.  13. Licensure, certification or training program accreditation for
28       a business entity, public agency or individual who engages in lead-based
29       paint activities shall not be required until such time as the secretary
30       adopts rules and regulations to implement the provisions of this act.
31             Sec.  14. The Kansas audit privilege and immunity statute does not
32       pertain to this act.
33             Sec.  15. On July 1, 2004, the provisions of this act are hereby
34       repealed.
35        Sec.  16. This act shall take effect and be in force from and after its
36       publication in the Kansas register.