HB4853ham002 94TH GENERAL ASSEMBLY

Human Services Committee

Filed: 2/16/2006

09400HB4853ham002 LRB094 17686 LJB 56091 a

AMENDMENT TO HOUSE BILL 4853

AMENDMENT NO. ______. Amend House Bill 4853, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 5. The Illinois Procurement Code is amended by adding Section 50-14.5 as follows:

(30 ILCS 500/50-14.5 new)

Sec. 50-14.5. Lead Poisoning Prevention Act violations. Owners of residential buildings who have committed a willful or knowing violation of the Lead Poisoning Prevention Act are prohibited from doing business with the State of Illinois or any State agency until the violation is mitigated.

Section 10. The Lead Poisoning Prevention Act is amended by changing Sections 2, 3, 4, 5, 6, 7.1, 8, 9, and 12 and by adding Sections 6.01, 6.3, 9.2, and 12.1 as follows:

(410 ILCS 45/2) (from Ch. 111 1/2, par. 1302)

Sec. 2. Definitions. As used in this Act:

"Abatement" means the removal or encapsulation of all leadbearing substances in a residential building or dwelling unit.

"Child care facility" means any structure used by a child care provider licensed by the Department of Children and Family Services or public school structure frequented by children through 6 years of age.

"Delegate agency" means a unit of local government or health department approved by the Department to carry out the provisions of this Act.

"Department" means the Department of Public Health of the State of Illinois.

"Dwelling" means any structure all or part of which is designed or used for human habitation.

"High risk area" means an area in the State determined by the Department to be high risk for lead exposure for children through 6 years of age. The Department shall consider, but not be limited to, the following factors to determine a high risk area: age and condition (using Department of Housing and Urban Development definitions of "slum" and "blighted") of housing, proximity to highway traffic or heavy local traffic or both, percentage of housing determined as rental or vacant, proximity to industry using lead, established incidence of elevated blood lead levels in children, percentage of population living below 200% of federal poverty guidelines, and number of children residing in the area who are 6 years of age or younger.

"Exposed surface" means any interior or exterior surface of a dwelling or residential building.

"Lead abatement contractor" means any person or entity licensed by the Department to perform lead abatement and mitigation.

"Lead abatement worker" means any person employed by a lead abatement contractor and licensed by the Department to perform lead abatement and mitigation.

"Lead bearing substance" means any item containing or coated with lead such that the lead content is more than six-hundredths of one percent (0.06%) lead by weight; or any dust on surfaces or in furniture or other nonpermanent elements of the dwelling; or and any paint or other surface coating material containing more than five-tenths of one percent (0.5%) lead by weight (calculated as lead metal) in the total non-volatile content of liquid paint; , or lead bearing substances containing greater than one milligram per square centimeter or any lower standard for lead content in residential paint as may be established by federal law or regulation; or more than 1 milligram per square centimeter in the dried film of paint or previously applied substance; or item or dust on item object containing lead in excess of the amount specified in the rules and regulations authorized by this Act or a lower standard for lead content as may be established by federal law or regulation.

"Lead hazard" means a lead bearing substance that poses an immediate health hazard to humans.

"Lead poisoning" means the condition of having blood lead levels in excess of those considered safe under State and federal rules and regulations.

"Low risk area" means an area in the State determined by the Department to be low risk for lead exposure for children through 6 years of age. The Department shall consider the factors named in "high risk area" to determine low risk areas.

"Mitigation" means the remediation, in a manner described in Section 9, of a lead hazard so that the lead bearing substance does not pose an immediate health hazard to humans.

"Owner" means any person, who alone, jointly, or severally with others:

(a) Has legal title to any dwelling or residential building, with or without accompanying actual possession of the dwelling or residential building, or

(b) Has charge, care or control of the dwelling or residential building as owner or agent of the owner, or as executor, administrator, trustee, or guardian of the estate of the owner.

"Person" means any one or more natural persons, legal entities, governmental bodies, or any combination.

"Residential building" means any room, group of rooms, or other interior areas of a structure designed or used for human habitation; common areas accessible by inhabitants; and the surrounding property or structures.

"Risk assessment" means a questionnaire to be developed by the Department for use by physicians and other health care providers to determine risk factors for children through 6 years of age residing in areas designated as low risk for lead exposure.

(Source: P.A. 89-381, eff. 8-18-95.)

(410 ILCS 45/3) (from Ch. 111 1/2, par. 1303)

Sec. 3. Lead bearing substance use. No person shall use or apply lead bearing substances:

(a) In or upon any exposed surface of a dwelling or dwelling unit;

(b) In or around the exposed surfaces of a child care facility or other structure frequented by children;

(c) In or upon any fixtures or other objects used, installed, or located in or upon any exposed surface of a dwelling or residential building, or child care facility, or intended to be so used, installed, or located and that, in the ordinary course of use, are accessible to or and chewable by children;

(d) In or upon any items, including, but not limited to, clothing, accessories, jewelry, decorative objects, edible items, candy, food, dietary supplements, toys, furniture, or other articles used by or intended to be and chewable by children;

(e) Within or upon a residential building or dwelling, child care facility, school, playground, park, or recreational area, or other areas regularly frequented by children.

(Source: P.A. 87-175.)

(410 ILCS 45/4) (from Ch. 111 1/2, par. 1304)

Sec. 4. Sale of items toys or furniture containing lead bearing substance. No person shall sell, have, offer for sale, or transfer toys, or furniture, clothing, accessories, jewelry, decorative objects, edible items, candy, food, dietary supplements, or other articles used by or intended to be chewable by children that contains a lead bearing substance.

(Source: P.A. 87-175.)

(410 ILCS 45/5) (from Ch. 111 1/2, par. 1305)

Sec. 5. Sale of objects containing lead bearing substance. No person shall sell or transfer or offer for sale or transfer any fixtures or other objects intended to be used, installed, or located in or upon any surface of a dwelling or residential building, or child care facility, that contains a lead bearing substance and that, in the ordinary course of use, are accessible to or and chewable by children.

(Source: P.A. 87-175.)

(410 ILCS 45/6) (from Ch. 111 1/2, par. 1306)

Sec. 6. Warning statement. No person, firm, or corporation shall have, offer for sale, sell, or give away any lead bearing substance that may be used by the general public unless it bears the warning statement as prescribed by federal regulation. If no regulation is prescribed the warning statement shall be as follows when the lead bearing substance is a lead-based paint or surface coating: "WARNING--CONTAINS LEAD. DRIED FILM OF THIS SUBSTANCE MAY BE HARMFUL IF EATEN OR CHEWED. See Other Cautions on (Side or Back) Panel. Do not apply on toys, or other children's articles, furniture, or interior, or exterior exposed surfaces of any residential building or facility that may be occupied or used by children. KEEP OUT OF THE REACH OF CHILDREN.". If no regulation is prescribed the warning statement shall be as follows when the lead bearing substance contains lead-based paint or a form of lead other than lead-based paint: "WARNING CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD. KEEP OUT OF THE REACH OF CHILDREN.".

(a) The generic term of a product, such as "paint" may be substituted for the word "substance" in the above labeling.

(b) The placement, conspicuousness, and contrast of the above labeling shall be in accordance with Section 191.101 of the regulations promulgated under the provisions of the Federal Hazardous Substances Act.

(Source: P.A. 87-175.)

(410 ILCS 45/6.01 new)

Sec. 6.01. Warning statement where supplies sold.

(a) Any retailer, store, or commercial establishment that offers paint or other supplies intended for the removal of paint shall display, in a prominent and easily visible location, a poster containing, at a minimum, the following:

(1) a statement that dry sanding and dry scraping of paint in dwellings built before 1978 is dangerous;

(2) a statement that the improper removal of old paint is a significant source of lead dust and the primary cause of lead poisoning; and

(3) the phone number and Internet website address of the Department or delegate agency where customers can obtain additional information.

(b) The Department shall provide sample posters that commercial establishments may use. The Department shall make these posters available in hard copy and via download from the Department's Internet website.

(410 ILCS 45/6.3 new)

Sec. 6.3. Information provided by the Department of Healthcare and Family Services.

(a) The Director of Healthcare and Family Services shall provide, upon request of the Director of Public Health, an electronic record of all children less than 7 years of age who receive Medicaid, Kidcare, or other health care benefits from the Department of Healthcare and Family Services. The records shall include a history of claims filed for each child and the health care provider who rendered the services. On at least an annual basis, the Director of Public Health shall match the records provided by the Department of Healthcare and Family Services with the records of children receiving lead tests, as reported to the Department under Section 7 of this Act.

(b) The Director shall prepare a report documenting the frequency of lead testing and elevated blood and lead levels among children receiving benefits from the Department of Healthcare and Family Services. On at least an annual basis, the Director shall prepare and deliver a report to each health care provider who has rendered services to children receiving benefits from the Department of Healthcare and Family Services. The report shall contain the aggregate number of children receiving benefits from the Department of Healthcare and Family Services to whom the provider has provided services, the number and percentage of children tested for lead poisoning, and the number and percentage of children having an elevated lead level. The Department of Public Health may exclude health care providers who provide specialized or emergency medical care and who are unlikely to be the primary medical care provider for a child. Upon the request of a provider, the Department of Public Health may generate a list of individual patients treated by that provider according to the claims records and the patients' lead test results.

(410 ILCS 45/7.1) (from Ch. 111 1/2, par. 1307.1)

Sec. 7.1. Child care facilities must require lead blood level screening for admission. By January 1, 1993, each day care center, day care home, preschool, nursery school, kindergarten, or other child care facility, licensed or approved by the State, including such programs operated by a public school district, shall include a requirement that each parent or legal guardian of a child between the ages of 6 months through 6 years provide a statement from a physician or health care provider that the child has been risk assessed, as provided in Section 6.2, if the child resides in an area defined as low risk by the Department, or screened for lead poisoning as provided for in Section 6.2, if the child resides in an area defined as high risk. This statement shall be provided prior to admission and subsequently in conjunction with required physical examinations.

Nothing in this Section shall be construed to require any child to undergo a lead blood level screening or test whose parent or guardian objects on the grounds that the screening or test conflicts with his or her religious beliefs.

Child care facilities that participate in the Illinois Child Care Assistance Program (CCAP) shall annually send or deliver to the parents or guardians of children enrolled in the facility's care an informational pamphlet regarding awareness of lead paint poisoning. Pamphlets shall be produced and made available by the Department and shall be downloadable from the Department's Internet website. The Department of Human Services and the Department of Public Health shall assist in the distribution of the pamphlet.

(Source: P.A. 89-381, eff. 8-18-95.)

(410 ILCS 45/8) (from Ch. 111 1/2, par. 1308)

Sec. 8. Inspection of buildings occupied by a person screening positive. A representative of the Department, or delegate agency, may, after notification that an occupant of the dwelling unit in question is found to have a blood lead value of the value set forth in Section 7, upon presentation of the appropriate credentials to the owner, occupant, or his representative, inspect dwelling or dwelling units, at reasonable times, for the purposes of ascertaining that all surfaces accessible to children are intact and in good repair, and for purposes of ascertaining the existence of lead bearing substances. Such representative of the Department, or delegate agency, may remove samples or objects necessary for laboratory analysis, in the determination of the presence of lead-bearing substances in the designated dwelling or dwelling unit.

If a building is occupied by a child of less than 3 years of age screening positive the Department, in addition to all other requirements of this Section, must inspect the dwelling unit and common place area of the child screening positive.

The Department shall inspect units where (i) children under the age of 6 reside, at the request of a parent or guardian of the child or (ii) a pregnant woman resides, at the pregnant woman's request.

Following the inspection, the Department or its delegate agency shall:

(1) Prepare an inspection report which shall:

(A) State the address of the dwelling unit.

(B) Describe the scope of the inspection, the inspection procedures used, and the method of ascertaining the existence of a lead bearing substance in the dwelling unit.

(C) State whether any lead bearing substances were found in the dwelling unit.

(D) Describe the nature, extent, and location of any lead bearing substance that is found.

(E) State either that a lead hazard does exist or that a lead hazard does not exist. If a lead hazard does exist, the report shall describe the source, nature and location of the lead hazard. The existence of intact lead paint does not alone constitute a lead hazard for the purposes of this Section.

(F) Give the name of the person who conducted the inspection and the person to contact for further information regarding the inspection and the requirements of this Act.

(2) Mail or otherwise provide a copy of the inspection report to the property owner and to the occupants of the dwelling unit. If a lead bearing substance is found, at the time of providing a copy of the inspection report, the Department or its delegate agency shall attach an informational brochure.

(Source: P.A. 87-175; 87-1144.)

(410 ILCS 45/9) (from Ch. 111 1/2, par. 1309)

Sec. 9. Procedures upon determination of lead hazard.

(1) If the inspection report identifies a lead hazard, the Department or delegate agency shall serve a mitigation notice on the property owner that the owner is required to mitigate the lead hazard, and shall indicate the time period specified in this Section in which the owner must complete the mitigation. The notice shall include information describing mitigation activities which meet the requirements of this Act.

(2) If the inspection report identifies a lead hazard, the owner shall mitigate the lead hazard in a manner prescribed by the Department and within the time limit prescribed by this Section. The Department shall adopt rules regarding acceptable methods of mitigating a lead hazard. If the source of the lead hazard identified in the inspection report is lead paint or any other leaded surface coating, the lead hazard shall be deemed to have been mitigated if:

(A) The surface identified as the source of the hazard is no longer in a condition that produces a hazardous level of leaded chips, flakes, dust or any other form of leaded substance, that can be ingested or inhaled by humans, or;

(B) If the surface identified as the source of the hazard is accessible to children and could reasonably be chewed on by children, the surface coating is either removed or covered, the surface is removed, or the access to the leaded surface by children is otherwise prevented as prescribed by the Department.

(3) Mitigation activities which involve the destruction or disturbance of any leaded surface shall be conducted by a licensed lead abatement contractor using licensed lead abatement workers. The Department may prescribe by rule mitigation activities that may be performed without a licensed contractor or worker. The Department may, on a case by case basis, grant a waiver of the requirement to use licensed lead abatement contractors and workers, provided the waiver does not endanger the health or safety of humans.

(4) The Department shall establish procedures whereby an owner, after receiving a mitigation notice under this Section, may submit a mitigation plan to the Department or delegate agency for review and approval.

(5) When a mitigation notice is issued for a dwelling unit inspected as a result of an elevated blood lead level in a pregnant woman or a child, or if the dwelling unit is occupied by a child under 6 years of age or a pregnant woman, the owner shall mitigate the hazard within 30 days of receiving the notice; otherwise, the owner shall complete the mitigation within 90 days.

(6) An owner may apply to the Department or its delegate agency for an extension of the deadline for mitigation. If the Department or its delegate agency determines that the owner is making substantial progress toward mitigation, or that the failure to meet the deadline is the result of a shortage of licensed abatement contractors or workers, or that the failure to meet the deadline is because the owner is awaiting the review and approval of a mitigation plan, the Department or delegate agency may grant an extension of the deadline.

(7) The Department or its delegate agency may, after the deadline set for completion of mitigation, conduct a follow-up inspection of any dwelling for which a mitigation notice was issued for the purpose of determining whether the mitigation actions required have been completed and whether the activities have sufficiently mitigated the lead hazard as provided under this Section. The Department or its delegate agency may conduct a follow-up inspection upon the request of an owner or resident. If, upon completing the follow-up inspection, the Department or its delegate agency finds that the lead hazard for which the mitigation notice was issued is not mitigated, the Department or its delegate agency shall serve the owner with notice of the deficiency and a mitigation order. The order shall indicate the specific actions the owner must take to comply with the mitigation requirements of this Act, which may include abatement if abatement is the sole means by which the lead hazard can be mitigated. The order shall also include the date by which the mitigation shall be completed. If, upon completing the follow-up inspection, the Department or delegate agency finds that the mitigation requirements of this Act have been satisfied, the Department or delegate agency shall provide the owner with a certificate of compliance stating that the required mitigation has been accomplished.

(8) When mitigation notices are issued for 2 or more dwelling units in a building within a 5-year time period, the Department may inspect common areas in the building and shall inspect units where (i) children under the age of 6 reside, at the request of a parent or guardian of the child or (ii) a pregnant woman resides, at the pregnant woman's request. All lead hazards must be mitigated in a reasonable time frame, as determined by rules adopted by the Department by December 31, 2006.

(Source: P.A. 87-175; 87-1144.)

(410 ILCS 45/9.2 new)

Sec. 9.2. Owner's obligation to post notice. The owner of a dwelling unit or residential building who has received a mitigation notice under Section 9 of this Act shall post notices in common areas of the building specifying the identified lead hazards. The posted notices, drafted by the Department and sent to the property owner with the notification of lead hazards, shall indicate the following:

(1) that a unit or units in the building have been found to have lead hazards;

(2) that other units in the building may have lead hazards;

(3) that the Department recommends that children 6 years of age or younger receive a blood lead screening; and

(4) where to seek further information.

Once the Department determines that a lead hazard has been mitigated, the owner may remove notices posted pursuant to this Section.

(410 ILCS 45/12) (from Ch. 111 1/2, par. 1312)

Sec. 12. Violations of Act.

(a) Violation of any Section of this Act other than Section 6.01 or Section 7 shall be punishable as a Class A misdemeanor. A violation of Section 6.01 shall be a petty offense.

(b) In cases where a person is found to have mislabeled, possessed, offered for sale or transfer, sold or transferred, or given away lead-bearing substances, a representative of the Department shall confiscate the lead-bearing substances and retain the substances until they are shown to be in compliance with this Act.

(c) In addition to any other penalty provided under this Act, the court in an action brought under subsection (e) may impose upon any person who violates or does not comply with a notice of deficiency and a mitigation order issued under subsection (7) of Section 9 of this Act or who fails to comply with subsection (3) or subsection (5) of Section 9 of this Act a civil penalty not exceeding $2,500 for each violation, plus $250 for each day that the violation continues.

Any civil penalties collected in a court proceeding shall be deposited into a delegated county lead poisoning screening, prevention, and abatement fund or, if no delegated county or lead poisoning screening, prevention, and abatement fund exists, into the Lead Poisoning Screening, Prevention, and Abatement Fund established under Section 7.2.

(d) Whenever the Department finds that an emergency exists that requires immediate action to protect the health of children under this Act, it may, without administrative procedure or notice, cause an action to be brought by the Attorney General or the State's Attorney of the county in which a violation has occurred for a temporary restraining order or a preliminary injunction to require such action as is required to meet the emergency and protect the health of children.

(e) The State's Attorney of the county in which a violation occurs or the Attorney General may bring an action for the enforcement of this Act and the rules adopted and orders issued under this Act, in the name of the People of the State of Illinois, and may, in addition to other remedies provided in this Act, bring an action for a temporary restraining order or preliminary injunction as described in subsection (d) or an injunction to restrain any actual or threatened violation or to impose or collect a civil penalty for any violation.

(Source: P.A. 92-447, eff. 8-21-01.)

(410 ILCS 45/12.1 new)

Sec. 12.1. Attorney General and State's Attorney report to General Assembly. The Attorney General and State's Attorney offices shall report to the General Assembly annually the number of lead poisoning cases that have been referred by the Department for enforcement due to violations of this Act or for failure to comply with a notice of deficiency and mitigation order issued pursuant to subsection (7) of Section 9 of this Act.

Section 99. Effective date. This Act takes effect upon becoming law.".