HB5789ham002 95TH GENERAL ASSEMBLY

Rep. Harry Osterman

Filed: 4/28/2008

09500HB5789ham002 LRB095 19904 RPM 49508 a

AMENDMENT TO HOUSE BILL 5789

AMENDMENT NO. ______. Amend House Bill 5789, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 5. The Lead Poisoning Prevention Act is amended by changing Sections 2, 6, and 12 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 total weight or a lower standard for lead content as may be established by federal or State law or regulation; or any dust on surfaces or in furniture or other nonpermanent elements of the dwelling; or any paint or other surface coating material containing more than five-tenths of one percent (0.5%) lead by total 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 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 bearing substance" does not include firearm ammunition or components as defined by the Firearm Owners Identification Card Act.

"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. 94-879, eff. 6-20-06.)

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

Sec. 6. Warning statement.

(a) Children's products. Effective January 1, 2010, no person, firm, or corporation shall sell, have, offer for sale, or transfer toys, 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 contain a total lead content in any component part of the item that is more than 0.004% (40 parts per million) but less than 0.06% (600 parts per million) by total weight or a lower standard for lead content as may be established by federal or State law or regulation, unless that item bears a warning statement that indicates that at least one component part of the item contains lead.

The warning statement shall be as follows: "WARNING: CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. MAY GENERATE DUST CONTAINING LEAD."

An entity is in compliance with this subsection (a) if the warning statement is provided on the children's product or on the label on the immediate container of the children's product. This subsection (a) does not apply to any product for which federal law governs warning in a manner that preempts State authority.

(b) Other leadbearing substances. 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, except as otherwise provided in subsection (a) of this Section, 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. MAY GENERATE DUST CONTAINING LEAD. 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.".

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

(d) (b) The placement, conspicuousness, and contrast of the above labeling shall be in accordance with 16 C.F.R. 1500.121.

(e) A retail entity with no role or control over the manufacture, importation, or distribution of a product covered under subsection (a) or subsection (b) of this Section and no reasonable means of knowing the lead content of a product covered under subsection (a) or subsection (b) of this Section is not responsible for compliance with those subsections. Nothing in this Section shall require a retail entity to test a product to determine lead content.

(f) Subsection (b) of this Section does not apply to any component part of a consumer electronic product, including, but not limited to, personal computers, audio and video equipment, calculators, wireless phones, game consoles, and handheld devices incorporating a video screen used to access interactive software and their associated peripherals, that is not accessible to a child through normal and reasonably foreseeable use and abuse of the product. A component part is not accessible under this subsection (f) if the component part is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product. Paint, coatings, and electroplating, singularly or in any combination, are not sufficient to constitute a sealed covering or casing for purposes of this Section.

(g) Notwithstanding any other rulemaking authority that may exist, neither the Governor nor any agency or agency head under the jurisdiction of the Governor has any authority to make or promulgate rules to implement or enforce the provisions of this amendatory Act of the 95th General Assembly. If, however, the Governor believes that rules are necessary to implement or enforce the provisions of this amendatory Act of the 95th General Assembly, the Governor may suggest rules to the General Assembly by filing them with the Clerk of the House and the Secretary of the Senate and by requesting that the General Assembly authorize such rulemaking by law, enact those suggested rules into law, or take any other appropriate action in the General Assembly's discretion. Nothing contained in this amendatory Act of the 95th General Assembly shall be interpreted to grant rulemaking authority under any other Illinois statute where such authority is not otherwise explicitly given. For the purposes of this amendatory Act of the 95th General Assembly, "rules" is given the meaning contained in Section 1-70 of the Illinois Administrative Procedure Act, and "agency" and "agency head" are given the meanings contained in Sections 1-20 and 1-25 of the Illinois Administrative Procedure Act to the extent that such definitions apply to agencies or agency heads under the jurisdiction of the Governor.

(Source: P.A. 94-879, eff. 6-20-06.)

(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 cause the Department to issue a written warning for a first offense and shall be a petty offense for a second or subsequent offense if the violation occurs at the same location within 12 months after the first 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.

(c-5) In addition to any other penalty provided under this Act, the court in an action brought under subsection (e) of this Section may impose a civil penalty not exceeding $2,500 for each violation, plus $250 for each day the violation continues for any violation of Section 4, Section 5, or Section 6 of this Act. Any penalties collected in a court proceeding shall be deposited into the Lead Poisoning Screening, Prevention, and Abatement Fund established under Section 7.2 of this Act.

(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. 94-879, eff. 6-20-06.)".