pa022098

Act No. 220

Public Acts of 1998

Approved by the Governor

July 1, 1998

Filed with the Secretary of State

July 1, 1998

EFFECTIVE DATE: July 1, 1998

STATE OF MICHIGAN

89TH LEGISLATURE

REGULAR SESSION OF 1998

Introduced by Senators Shugars and A. Smith

ENROLLED SENATE BILL No. 1047

AN ACT to amend 1978 PA 368, entitled "An act to protect and promote the public health; to codify, revise, consolidate, classify, and add to the laws relating to public health; to provide for the prevention and control of diseases and disabilities; to provide for the classification, administration, regulation, financing, and maintenance of personal, environmental, and other health services and activities; to create or continue, and prescribe the powers and duties of, departments, boards, commissions, councils, committees, task forces, and other agencies; to prescribe the powers and duties of governmental entities and officials; to regulate occupations, facilities, and agencies affecting the public health; to regulate health maintenance organizations and certain third party administrators and insurers; to provide for the imposition of a regulatory fee; to promote the efficient and economical delivery of health care services, to provide for the appropriate utilization of health care facilities and services, and to provide for the closure of hospitals or consolidation of hospitals or services; to provide for the collection and use of data and information; to provide for the transfer of property; to provide certain immunity from liability; to regulate and prohibit the sale and offering for sale of drug paraphernalia under certain circumstances; to provide for penalties and remedies; to provide for sanctions for violations of this act and local ordinances; to repeal certain acts and parts of acts; to repeal certain parts of this act; and to repeal certain parts of this act on specific dates," (MCL 333.1101 to 333.25211) by adding sections 5452, 5453, 5454, 5455, 5456, 5461a, 5462, 5463, 5464, 5465, 5466, 5467, 5471, 5473, and 5476.

The People of the State of Michigan enact:

Sec. 5452. For purposes of this part, the words and phrases defined in sections 5453 to 5460 have the meanings ascribed to them unless the context requires otherwise.

Sec. 5453. (1) "Abatement", except as otherwise provided in subsection (2), means a measure or set of measures designed to permanently eliminate lead-based paint hazards. Abatement includes all of the following:

(a) The removal of lead-based paint and lead-contaminated dust, the permanent enclosure 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 postabatement clearance testing activities associated with such measures.

(b) A project for which there is a written contract or other documentation that provides that a person will be conducting activities in or to a residential dwelling or child occupied facility that will result in the permanent elimination of lead-based paint hazards or that are designed to permanently eliminate lead-based paint hazards.

(c) A project resulting in the permanent elimination of lead-based paint hazards, conducted by a person certified under this act, except a project that is exempt from this part.

(d) A project resulting in the permanent elimination of lead-based paint hazards, conducted by a person who, through their company name or promotional literature, represents, advertises, or holds themselves out to be in the business of performing lead-based paint activities except a project that is exempt from this part.

(e) A project resulting in the permanent elimination of lead-based paint hazards that is conducted in response to a state or local government abatement order.

(2) Abatement does not include any of the following:

(a) Renovation, remodeling, landscaping, or other activity, if the activity is not designed to permanently eliminate lead-based paint hazards, but is instead designed to repair, restore, or remodel a structure, target housing, or dwelling even though the activity may incidentally result in a reduction or elimination of a lead-based paint hazard.

(b) An interim control, operation, and maintenance activity, or other measure or activity designed to temporarily, but not permanently, reduce a lead-based paint hazard.

(c) Any lead-based paint activity performed by the owner of an owner-occupied residential dwelling or an owner-occupied multifamily dwelling containing 4 or fewer units if the activity is performed only in that owner-occupied unit of the multifamily dwelling.

(3) "Accredited training program" means a training program that has been accredited by the department under this part to provide training for individuals engaged in lead-based paint activities.

(4) "Adequate quality control" means a plan or design that ensures the authenticity, integrity, and accuracy of a sample including, but not limited to, a dust sample, a soil or paint chip sample, or a paint film sample. Adequate quality control also includes a provision in a plan or design described in this subsection for representative sampling.

Sec. 5454. (1) "Certified abatement worker" means an individual who has been trained to perform abatements by an accredited training program.

(2) "Certified firm" means a person that performs a lead-based paint activity for which the department has issued a certificate of approval under this part.

(3) "Certified inspector" means an individual who has been trained by an accredited training program and certified by the department under this part to conduct inspections and take samples for the presence of lead in paint, dust, and soil for the purposes of abatement clearance testing.

(4) "Certified project designer" means an individual who has been trained by an accredited training program and certified by the department under this part to prepare abatement project designs, occupant protection plans, and abatement reports.

(5) "Certified risk assessor" means an individual who has been trained by an accredited training program and certified by the department under this part to conduct risk assessments and take samples for the presence of lead in paint, dust, and soil for the purposes of abatement clearance testing.

(6) "Certified supervisor" means an individual who has been trained by an accredited training program and certified by the department under this part to supervise and conduct abatements and to prepare occupant protection plans and abatement reports.

(7) "Child occupied facility" means a building or portion of a building constructed before 1978 that is visited regularly by a child who is 6 years of age or less, on at least 2 different days within a given week, if each day's visit is at least 3hours and the combined weekly visit is at least 6 hours in length, and the combined annual visits are at least 60 hours in length. Child-occupied facility includes, but is not limited to, a day-care center, a preschool, and a kindergarten classroom.

Sec. 5455. (1) "Clearance levels" means the values that indicate the maximum amount of lead permitted in dust on a surface following completion of an abatement activity as listed in rules promulgated by the department.

(2) "Common area" means a portion of a building that is generally accessible to all occupants of the building. Common area includes, but is not limited to, a hallway, a stairway, a laundry and recreational room, a playground, a community center, a garage, and a boundary fence.

(3) "Component" or "building component" means a specific design or structural element or fixture of a building, residential dwelling, or child occupied facility that is distinguished by its form, function, and location. Component or building component, includes but is not limited to, a specific interior or exterior design or structural element or fixture.

(4) "Containment" means a process to protect workers and the environment by controlling exposure to the lead-contaminated dust and debris created during an abatement.

(5) "Course agenda" means an outline of the key topics to be covered during an accredited training program, including the time allotted to teach each topic.

(6) "Course test" means an evaluation of the overall effectiveness of the accredited training program by testing a trainee's knowledge and retention of the topics covered during the accredited training program.

(7) "Course test blueprint" means written documentation identifying the proportion of course test questions devoted to each major topic in the accredited training program curriculum.

Sec. 5456. (1) "Department" means the department of community health.

(2) "Deteriorated paint" means paint that is cracking, flaking, chipping, peeling, or otherwise separating from the substrate of a building component.

(3) "Discipline" means 1 of the specific types or categories of lead-based paint activities identified in this part for which an individual may receive training from an accredited training program and become certified by the department.

(4) "Distinct painting history" means the application history, as indicated by its visual appearance or a record of application, over time of paint or other surface coatings to a component or room.

(5) "Documented methodology" means a method or protocol used to sample and test for the presence of lead in paint, dust, and soil.

(6) "Elevated blood level" or "EBL" means for purposes of lead abatement an excessive absorption of lead that is a confirmed concentration of lead in whole blood of 20 ug/dl, micrograms of lead per deciliter of whole blood, for a single venous test or of 15-19 ug/dl in 2 consecutive tests taken 3 to 4 months apart. For purposes of case management of children under six years of age screened and tested for lead elevated blood level means an excessive absorption of lead that is a confirmed concentration of lead in whole blood of 10 ug/dl.

(7) "Encapsulant" means a substance that forms a barrier between lead-based paint and the environment using a liquid-applied coating, with or without reinforcement materials, or an adhesively bonded covering material.

(8) "Encapsulation" means the application of an encapsulant.

(9) "Enclosure" means the use of rigid, durable construction materials that are mechanically fastened to the substrate in order to act as a barrier between lead-based paint and the environment.

(10) "EPA" means the United States environmental protection agency.

Sec. 5461a. (1) A person shall not provide or offer to provide a training program for lead-based paint activities unless the training program is accredited under the appropriate discipline under this part. A person providing an accredited training program shall comply with the standards for accreditation and training certification prescribed in this part and the rules promulgated under this part.

(2) The department shall accredit a training program if the training program is registered by the department under the department's voluntary registration program by August 30, 1998 if the training program submits an application under section 5462.

Sec. 5462. (1) A person may seek accreditation for a training program to offer courses in lead-based paint activities in 1 or more of the following disciplines:

(a) Inspector.

(b) Risk assessor.

(d) Project designer.

(e) Abatement worker/laborer.

(2) A person may also seek accreditation for a training program to offer refresher courses for each of the disciplines described in subsection (1).

(3) Beginning March 1, 1999, a person shall not provide, offer, or claim to provide EPA-accredited courses in lead-based paint activities without applying for and receiving accreditation from the department under this part.

(4) A person seeking accreditation for a training program shall submit a written application to the department containing all of the following:

(a) If the applicant is a sole proprietorship or corporation, its "doing business as" or corporate identification number.

(b) The fee required by section 5471.

(d) The training program's proposed name, address, and telephone number.

(e) A list of courses and disciplines for which it is seeking accreditation.

(f) A statement signed by the training program manager certifying that the training program meets the requirements established by this part and the rules promulgated under this part.

(g) A copy of the student and instructor manuals or other materials to be used for each course.

(h) A copy of the course agenda for each course.

(i) A description of the facilities and equipment to be used for lecture and hands-on training.

(j) A copy of the course test blueprint for each course.

(k) A description of the activities and procedures that will be used for conducting the hands-on skills assessment for each course.

(l) A copy of the quality control plan as defined in rules promulgated by the department.

(6) The department shall approve an application for accreditation of a training program within 180 days after receiving a complete application from the training program if the department determines that the applicant meets the requirements of this part and the rules promulgated under this part. In the case of approval, the department shall send a certificate of accreditation to the applicant. Before disapproving an application, the department may advise the applicant as to specific inadequacies in the application for accreditation or specific instances where the training program does not meet the requirements of this part or the rules promulgated under this part, or both. The department may request additional information or materials from the training program under this section. If the department disapproves a training program's application for accreditation, the applicant may reapply for accreditation at any time.

(7) A training program shall meet all of the following requirements in order to become accredited to offer courses in lead-based paint activities:

(a) Employ a training manager who has training, education, and experience as described in rules promulgated by the department.

(b) Provide that the training manager described in subdivision (a) designate a qualified principal instructor for each course who has training, education, and experience as described in rules promulgated by the department.

(c) Provide that the principal instructor described in subdivision (b) be responsible for the organization of the course and oversight of the teaching of all course material. A training manager may designate guest instructors as needed to provide instruction specific to the lecture, hands-on activities, or work practice components of a course.

(8) The following documents are recognized by the department as evidence that a training manager or a principal instructor has the education, work experience, training requirements, or demonstrated experience specifically listed in rules promulgated by the department, which documentation is not required to be submitted with the accreditation application but, if not submitted, must be retained by the training program as required by the record-keeping requirements contained in this part:

(a) An official academic transcript or diploma as evidence of meeting the education requirements.

(b) A resume, letter of reference, or documentation of work experience, as evidence of meeting the work experience requirements.

(c) A certificate from a train-the-trainer course or a lead-specific training course, or both, as evidence of meeting the training requirements.

(9) A training program accredited under this part shall ensure the availability of, and provide adequate facilities for, the delivery of the lecture, course test, hands-on training, and assessment activities including, but not limited to, providing training equipment that reflects current work practices and maintaining or updating the equipment and facilities of the training program, as needed.

Sec. 5463. (1) A training program accredited under section 5462 shall provide training courses that meet the following training hour requirements in order to become accredited in the following disciplines:

(a) An inspector course shall last a minimum of 24 training hours, with a minimum of 8 hours devoted to hands-on training activities. The department shall promulgate rules to determine the minimum curriculum requirements for the inspector course.

(b) A risk assessor course shall last a minimum of 16 training hours, with a minimum of 4 hours devoted to hands-on training activities. The department shall promulgate rules to determine the minimum curriculum requirements for the risk assessor course.

(c) A supervisor course shall last a minimum of 32 training hours, with a minimum of 8 hours devoted to hands-on activities. The department shall promulgate rules to determine the minimum curriculum requirements for the supervisor course.

(d) A project designer course shall last a minimum of 8 training hours. The department shall promulgate rules to determine the minimum curriculum requirements for the project designer course.

(e) An abatement worker course shall last a minimum of 16 training hours, with a minimum of 8 hours devoted tohands-on training activities. The department shall promulgate rules to determine the minimum curriculum requirements for the abatement worker course.

(2) The department may promulgate rules to modify 1 or more of the requirements imposed under subsection (1) if changes are needed to comply with federal mandates or for another reason considered appropriate by the department.

(3) For each course offered, the training program shall conduct a course test at the completion of the course and, if applicable, a hands-on skills assessment. Each individual enrolled in the training program must successfully complete the hands-on skills assessment, if conducted for that course, and receive a passing score on the course test in order to pass a course.

(4) The training manager shall maintain the validity and integrity of a hands-on skills assessment to ensure that it accurately evaluates the trainees' performance of the work practices and procedures associated with the course topics contained in rules promulgated under this section and the course test to ensure that it accurately evaluates the trainees' knowledge and retention of the course topics.

(5) A training program's course test shall be developed in accordance with the test blueprint submitted with the training program accreditation application.

(6) A training program shall issue course completion certificates to each individual who passes the training course. The course completion certificates shall include:

(a) The name and address of the individual, along with a unique identification number.

(b) The name of the particular course that the individual passed.

(d) Expiration date of course certificate.

(e) The name, address, and telephone number of the training program.

(7) The training manager shall develop and implement a quality control plan designed to maintain and improve the quality of the training program. The quality control plan shall contain at least both of the following elements:

(a) Procedures for periodic revision of training materials and the course test to reflect innovations in the field.

(b) Procedures for the training manager's annual review of each principal instructor's competence.

(8) The training program shall offer courses that teach the work practice standards for conducting lead-based paint activities and other standards developed by the EPA pursuant to title IV of the TSCA and considered appropriate or necessary by the department. The work practice standards shall be taught in the appropriate courses to provide trainees with the knowledge needed to perform the lead-based paint activities.

(9) The training manager shall ensure that the training program complies at all times with all of the requirements of this section and the rules promulgated under this section.

(10) The training manager shall allow the department to audit the training program to verify the contents of the application for accreditation.

Sec. 5464. (1) A training program may seek accreditation to offer refresher training courses in 1 or more of the disciplines described in section 5462(1). A training program shall meet those minimum requirements contained in rules promulgated by the department in order to obtain department accreditation.

(2) A training program may apply for accreditation of a refresher course concurrently with its application for accreditation of the corresponding training course pursuant to rules promulgated by the department.

(3) The department shall approve an application for accreditation of a refresher course within 180 days after receiving a complete application. Upon approval, the department shall send a certificate of accreditation to the applicant. Before disapproval, the department may advise the applicant as to specific inadequacies in the application for accreditation or specific instances where the continuing education course does not meet the requirements of this part and the rules promulgated under this part, or both. The department may also request additional information or materials retained by the training program. If the department denies a training program's application for accreditation of a refresher course, the applicant may reapply for accreditation at any time.

Sec. 5465. (1) Unless reaccredited, a training program's accreditation under section 5462, including refresher course training accredited under section 5464, expires 1 year after the date of issuance.

(2) A training program seeking reaccreditation shall submit an application to the department no later than 45 days before its accreditation expires.

(3) A training program's application for reaccreditation shall include any fees and information required pursuant to rules promulgated by the department.

(4) Upon request, a training program shall allow the department to audit the training program to verify the contents of the application for reaccreditation.

Sec. 5466. (1) The department may, after notice and an opportunity for hearing pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, suspend, revoke, or modify a training program accreditation or a refresher course training program accreditation if the department determines that a training program, training manager, or other person with supervisory authority over the training program has done 1 or more of the following:

(a) Misrepresented the contents of a training course to the department or the trainees enrolled in the training program, or both.

(b) Failed to submit required information or notifications in a timely manner.

(d) Falsified accreditation records, student certificates, instructor qualifications, or other accreditation-related information or documentation.

(e) Failed to comply with the training standards and requirements of this part and the rules promulgated under this part.

(f) Failed to comply with a federal, state, or local statute, rule, or regulation involving lead-based paint activities.

(g) Made false or misleading statements to the department in its application for accreditation or reaccreditation that the department relied upon in approving the application.

(2) In addition to an administrative or judicial finding of a violation, the execution of a consent agreement in settlement of an enforcement action is considered, for purposes of this section, evidence of a failure to comply with the standards and requirements of this part and the rules promulgated under this part or other relevant statutes or regulations involving lead-based paint activities.

Sec. 5467. (1) An accredited training program shall maintain, and make available to the department, upon request, all of the following records:

(a) Each document that demonstrates the qualifications of a training manager or a principal instructor.

(b) Current curriculum and course materials and documents reflecting changes made to these materials.

(d) Information regarding how the hands-on skills assessment is conducted including, but not limited to, all of the following:

(i) The person conducting the hands-on skills assessment.

(ii) The method of grading the hands-on skills.

(iii) A description of the facilities used.

(iv) The pass/fail rate.

(v) The quality control plan.

(vi) The results of the students' hands-on skills assessments and course tests and a record of each student's participation, including name, social security number, and score, within 10 calendar days of the last day of the course taken.

(vii) Any other material that was submitted to the department as part of the program's application for accreditation.

(2) A training program shall retain the records described in subsection (1) for at least 3-1/2 years at the address specified on the training program accreditation application.

(3) The training program shall notify the department in writing within 30 days of changing the address specified on its training program accreditation application or transferring the records from that address.

Sec. 5471. (1) Fees for a person accredited or seeking accreditation for a training program offering courses or refresher courses in lead-based paint activities are as follows:

(a) Initial application processing fee $100.00.

(b) Initial accreditation fee $475.00 per discipline.

(2) Fees for an individual certified or seeking certification to engage in lead-based paint activities are as follows:

(a) Initial application processing fee $ 25.00.

(b) Certification fee, per year:

(i) Inspector $150.00.

(ii) Risk assessor $150.00.

(iii) Supervisor $ 50.00.

(iv) Project designer $150.00.

(v) Abatement worker/laborer $ 25.00.

(3) Fees for a person certified or seeking certification to engage in lead-based paint activities are as follows:

(a) Initial application processing fee $100.00.

(b) Certification fee, per year $220.00.

(4) If the department increases fees under subsection (5), the increase shall be effective for that fiscal year. The increased fees shall be used by the department as the basis for calculating fee increases in subsequent fiscal years.

(5) By August 1 of each year, the department shall provide to the director of the department of management and budget and to the chairpersons of the appropriations committees of the senate and house of representatives a complete schedule of fees to be collected under this section.

(6) The fees imposed under this part shall not exceed the actual cost of administering this part.

Sec. 5473. The legislature shall annually appropriate to the department an amount sufficient to administer and enforce this part. These funds shall be offset by funds received from federal agencies in the form of grants or other funding provisions. All funds generated by this part shall be deposited into the general fund to be used exclusively by the department to carry out the duties and responsibilities of this part. With fees collected pursuant to this part and funds appropriated by the legislature, the department shall conduct compliance activities that assure the quality of training and protection of worker's and public health and safety. Such activities include, but are not limited to, unannounced inspections of lead abatement project sites.

Sec. 5476. (1) A person who violates this part is subject to an administrative fine up to the following amounts for each violation or each day that a violation continues:

(a) For a first violation $ 2,000.00.

(b) For a second violation $ 5,000.00.

(2) If the department has reasonable cause to believe that a person has violated this part or a rule promulgated under this part, the department may issue a citation at that time or not later than 180 days after discovery of the alleged violation. The citation shall be written and shall state with particularity the nature of the violation as provided for by the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. An alleged violator may request an administrative hearing pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

Enacting section 1. This amendatory act does not take effect unless House Bill No. 5561 of the 89th Legislature is enacted into law.

This act is ordered to take immediate effect.

Secretary of the Senate.

Clerk of the House of Representatives.

Approved

Governor.