72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1566
Senate Bill 477
Sponsored by COMMITTEE ON WATER AND LAND USE
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires residential rental properties with dwelling units
constructed prior to 1978 to be lead-free or lead-safe.
Establishes registration and certification programs for
properties subject to lead-free or lead-safe requirement. Limits
liability of owner of certified property, subject to certain
conditions.
Creates crime of falsifying lead-based paint settlement offer.
Establishes maximum punishment of one year's imprisonment, $5,000
fine, or both.
Prohibits casualty insurance policy exclusion of certain
damages arising from lead-based paint hazards. Requires casualty
insurers to offer coverage for lead-based paint hazards.
Creates Lead Poisoning Prevention Coordinating Council to
coordinate lead-based paint hazard mitigation efforts statewide.
Establishes Lead-Free or Lead-Safe Property Revolving Loan Fund
and authorizes sale of bonds to finance abatement of lead-based
paint hazards. Allows appropriate agency to perform abatement of
nuisance lead-based paint hazard at property required to be
lead-free or lead-safe if owner does not abate nuisance.
Allows tax credit for costs incurred for purpose of making
property with pre-1978 dwelling unit lead-free or lead-safe.
Provides for screening of children for elevated blood lead
levels.
Specifies program features for informing public of lead-based
paint hazards. Creates Lead Poisoning Prevention Commission to
advise on program content.
A BILL FOR AN ACT
Relating to lead; and appropriating money.
Whereas nearly one million children in the United States may
have levels of lead in their blood in excess of 10 micrograms per
deciliter; and
Whereas unless prevented or treated, elevated blood lead levels
may result in impairment of the ability to think, concentrate,
and learn; and
Whereas a significant cause of lead poisoning in children is
the ingestion of lead particles from deteriorating or abraded
lead-based paint from older, poorly maintained residences; and
Whereas the health and development of children is endangered by
chipping or peeling lead-based paint or excessive amounts of
lead-contaminated dust in poorly maintained homes; and
Whereas 90 percent of lead-based paint still remaining in
occupied housing exists in units built before 1960, with the
remainder in units built before 1978; and
Whereas the dangers posed by lead-based paint can be
substantially reduced and largely eliminated by taking measures
to prevent paint deterioration and limiting the exposure of
children to paint chips and lead dust; and
Whereas the deterioration of lead-based paint in older
residences results in increased expenses each year for the state
in the form of special education and other education expenses,
medical care for lead-poisoned children, and expenditures for
delinquent youth and others needing special supervision; and
Whereas older housing units remain an important part of
Oregon's housing stock, particularly for those of modest or
limited incomes; and
Whereas the existing system of enforcing housing codes has
proven ineffective in inducing widespread lead-based paint hazard
abatement, mitigation, and control; and
Whereas the financial incentives currently in place have not
proven sufficient to motivate landlords and other property owners
to undertake widespread and effective lead-based paint hazard
abatement; and
Whereas insurance coverage generally is not available to
property owners to protect them against potentially ruinous legal
actions brought on behalf of lead-poisoned children; and
Whereas the possibility of liability exposure among property
owners has led many owners to abandon older properties or to
place the properties under the ownership of shell corporations in
order to avoid personal liability; and
Whereas knowledge of lead-based paint hazards, abatement, and
risk avoidance is not sufficiently widespread, especially outside
urban areas; now, therefore,
Be It Enacted by the People of the State of Oregon:
{ +
ACT TITLE + }
SECTION 1. { + Sections 2 to 9, 13 to 16, 18 to 21 and 30 to
33 of this 2003 Act shall be known and may be cited as the Lead
Poisoning Prevention Act. + }
{ +
DEFINITIONS + }
SECTION 2. { + As used in sections 2 to 9, 13 to 16 and 18 to
21 of this 2003 Act, unless the context requires otherwise:
(1) 'Abatement' means a set of measures designed to permanently
eliminate lead-based paint or lead-based paint hazards.
'Abatement' includes the removal of lead-based paint hazards, the
permanent enclosure or encapsulation of lead-based paint, the
replacement of components or fixtures painted with lead-based
paint and the removal or permanent covering of hazards based in
the soil.
(2) 'Affected property' means a room or group of rooms within a
residential rental property constructed prior to 1978 that form a
single independent habitable dwelling unit for occupation by one
or more individuals and that has living facilities with permanent
provisions for living, sleeping, eating, cooking and sanitation.
'Affected property' does not include:
(a) A dwelling unit area that is not normally utilized for
day-to-day activities of the occupants;
(b) A hotel or motel unit or seasonal or transient lodging
unless the unit or lodging is occupied for more than 30 days by a
person at risk;
(c) An area that is secured and inaccessible to occupants;
(d) A unit that is not offered for rent;
(e) A property owned by the federal government; or
(f) A property owned by a state or local government or a public
corporation, if the property is subject to lead standards that
are equal to or more stringent than the requirements for
lead-safe status under section 6 of this 2003 Act.
(3) 'Change in occupancy' means a change of tenant in which the
affected property is vacated and possession is either surrendered
to the owner or abandoned.
(4) 'Complainant' means a person at risk, the authorized
representative of or attorney for a person at risk, and the
parent or legal guardian of a minor person at risk.
(5) 'Deteriorated' means peeling, chipping, chalking or
cracking, or otherwise damaged or separated.
(6) 'Dwelling unit' means:
(a) A single-family dwelling, including porches, stoops and
other attached structures; or
(b) A housing unit in a structure that contains more than one
separate housing unit, and in which each housing unit is used or
occupied, or intended to be used or occupied, in whole or in
part, as the home or separate living quarters of one or more
persons.
(7) 'Elevated blood lead level' means a quantity of lead in
whole venous blood that exceeds 15 micrograms per deciliter.
(8) 'Encapsulation' means the application of a covering or
coating that acts as a barrier between the lead-based paint and
the environment, the durability of which relies on adhesion with
the painted surface, and on the integrity of the existing bonds
between paint layers and between the paint and the substrate.
(9) 'Exterior surfaces' means:
(a) All fences and porches that are part of an affected
property;
(b) All outside surfaces of an affected property that are
accessible to a child under the age of six years and:
(A) Are attached to the outside of an affected property; or
(B) Consist of other buildings that are part of the affected
property; and
(c) All painted surfaces within a multifamily rental dwelling
unit that are common to individual dwelling units and are
accessible to a child under the age of six years, including but
not limited to, surfaces of stairways, hallways, entrance areas,
recreation areas, laundry areas and garages.
(10) 'Friction surface' means an interior or exterior surface
that is subject to abrasion or friction, including, but not
limited to, painted window, floor and stair surfaces.
(11) 'Hazard reduction' means measures designed to reduce or
eliminate human exposure to lead-based paint hazards through
methods including interim controls, abatement or a combination of
the two.
(12) 'HEPA vacuuming' means the use of a high efficiency
particulate air vacuum device capable of filtering out particles
0.3 microns or greater in size from a body of air at a minimum
efficiency of 99.97 percent.
(13) 'Inspection' means a comprehensive investigation to
determine the presence of lead-based paint hazards and the
provision of a report explaining the results of the
investigation.
(14) 'Interim controls' means a set of measures designed to
temporarily reduce human exposure to lead-based paint hazards. '
Interim controls' includes, but is not limited to, repairs,
painting, temporary containment of dust and debris to the
worksite, specialized cleaning, clearance, ongoing lead-based
paint maintenance and the establishment and operation of
management and resident education programs.
(15) 'Lead-based paint' means a surface coating that contains
lead in an amount equal to or greater than 1.0 milligram per
square centimeter or 0.5 percent by weight.
(16) 'Lead-based paint hazard' means:
(a) Surface dust in a dwelling unit utilized by a person at
risk that contains a mass per area amount of lead equal to or
greater than 40 micrograms per square foot on floors or 250
micrograms per square foot on interior windowsills based on wipe
samples;
(b) A lead-based paint on a friction surface and where the dust
lead levels on the nearest horizontal surface underneath the
friction surface are equal to or greater than the dust levels
described in paragraph (a) of this subsection;
(c) Deteriorated lead-based paint damaged by repeated impact of
a force from a related building material;
(d) A surface on which there is evidence of teeth marks of a
child; or
(e) Any other deteriorated lead-based paint in or on the
exterior of any residential building or any facility utilized by
a person at risk.
(17) 'Owner' means a person that, alone or with others, owns,
holds or controls the freehold or leasehold title or part of the
title to property, with or without actually possessing it. '
Owner' includes an agent or employee of the owner and includes a
contact person named in the registration for an affected property
under section 5 of this 2003 Act. 'Owner' does not include a
mortgage lender or the holder of a reversionary interest in
property.
(18) 'Permanent' means having an expected design life of at
least 20 years.
(19) 'Person at risk' means a child under the age of six years
or a pregnant woman, if the child or woman utilizes an affected
property by residing or regularly spending at least 24 hours per
week in the affected property.
(20) 'Wipe sample' means a sample:
(a) Collected by wiping a representative surface of known area,
as determined by the ASTM International standard E1728-02 '
Standard Practice for Field Collection of Settled Dust Samples
Using Wipe Sampling Methods for Lead Determination by Atomic
Spectrometry Techniques' or an equivalent method approved by the
Department of Environmental Quality; and
(b) With lead determination conducted by a laboratory
accredited under the American Industrial Hygiene Association's
Environmental Lead Laboratory Accreditation Program or a similar
accreditation program recognized by the United States
Environmental Protection Agency. + }
{ +
PURPOSE AND INTENT + }
SECTION 3. { + (1) The purpose of sections 2 to 9, 13 to 16,
18 to 21, 23 and 30 to 33 of this 2003 Act is to:
(a) Substantially reduce, and eventually eliminate, the
incidence of childhood lead poisoning in this state;
(b) Increase the supply of affordable rental housing in this
state in which measures have been taken to substantially reduce
the risk of childhood lead poisoning;
(c) Make enforcement of lead-based paint hazard control
standards in this state more certain and more effective;
(d) Improve public awareness of lead safety issues; and
(e) Educate property owners and tenants about practices that
can reduce the incidence of lead poisoning.
(2) To accomplish the purpose described in subsection (1) of
this section, the Legislative Assembly intends that sections 2 to
9, 13 to 16, 18 to 21, 23 and 30 to 33 of this 2003 Act:
(a) Provide protection from potentially ruinous tort actions
for those property owners that undertake specified lead-based
paint hazard abatement measures;
(b) Ensure the availability and affordability of casualty
insurance and coverage for lead-based paint hazards to property
owners that undertake specified lead-based paint hazard abatement
measures;
(c) Mandate the testing of children likely to suffer the
consequences of lead poisoning so that prompt diagnosis,
treatment and prevention of harm are possible;
(d) Provide a mechanism to facilitate prompt payment of medical
and rehabilitation expenses and relocation costs for persons at
risk who are affected by childhood lead poisoning; and
(e) Define the scope of authority of state agencies for lead
hazard control, mitigation, education and insurance availability,
and provide for the coordination of agency efforts. + }
{ +
LEAD-FREE AND LEAD-SAFE PROPERTY PROGRAM + }
SECTION 4. { + (1) The Department of Environmental Quality
shall administer and enforce the programs created pursuant to
sections 2 to 9, 13 to 16 and 18 to 21 of this 2003 Act. To the
extent of available funding, the department may contract with any
agency, individual or group for the provision of program
services.
(2) The department may adopt rules under ORS 183.310 to 183.550
for carrying out the programs established pursuant to sections 2
to 9, 13 to 16 and 18 to 21 of this 2003 Act. + }
SECTION 5. { + (1) The owner of an affected property shall
register the property with the Department of Environmental
Quality. The owner shall register each affected property using
forms prepared by the department. A registration must include,
but need not be limited to, the following information:
(a) The name and address of the owner;
(b) The address of the affected property;
(c) If applicable, the name and address of each property
manager for the affected property;
(d) The name and address of each insurance company providing
casualty insurance or lead-based paint hazard coverage for the
affected property, together with the policy numbers of the
insurance or coverage provided;
(e) The name and address of a contact person in this state with
respect to the affected property;
(f) The date of construction of the affected property;
(g) The date of the latest change in occupancy of the affected
property; and
(h) The latest date, if any, on which the affected property was
certified to be in compliance with section 6 of this 2003 Act,
and the name and address of the person, if any, who conducted an
inspection.
(2) An owner shall renew the registration for a property every
two years. An owner shall notify the department of a change in
the registration information no later than 30 days after the
change.
(3) Registration information provided by an owner under this
section is a public record available for inspection under ORS
192.420.
(4) The department, by rule, shall prescribe fees for the
registration, renewal of a registration or change in registration
of affected properties.
(5) Moneys received from fees prescribed pursuant to this
subsection are continuously appropriated to the department for
the administration and enforcement of sections 2 to 9, 13 to 16
and 18 to 21 of this 2003 Act. + }
SECTION 6. { + (1) An affected property must be in lead-free
or lead-safe status and have a current Department of
Environmental Quality certification of that status.
(2) The department may certify an affected property as
lead-free if the owner of the affected property submits to the
department an inspection report indicating that the affected
property has been tested for the presence of lead in accordance
with rules adopted by the department under section 4 of this 2003
Act and stating that:
(a) All interior surfaces of the affected property are
lead-free; and
(b)(A) All painted exterior surfaces of the affected property
that were deteriorated have been restored with non-lead-based
paint; or
(B) The painted exterior surfaces of the affected property are
not deteriorated.
(3) The department may certify an affected property as
lead-safe if a person licensed under ORS 701.515 has completed
the following treatments to abate lead-based paint hazards in
compliance with the rules adopted by the department:
(a) Visual review of all painted exterior and interior
surfaces;
(b) Removal and repainting of deteriorated painted exterior and
interior surfaces;
(c) Stabilization and repainting of any painted exterior or
interior surfaces that have lead-based paint hazards;
(d) Repair of any structural defect that the owner knows or
reasonably should know is causing the paint to deteriorate;
(e) Stripping and repainting, or replacing, of all interior
windowsills and window troughs, or encapsulation of those sills
and troughs, with vinyl, metal or any other durable material that
renders the surface smooth and cleanable;
(f) Installation of caps of vinyl, aluminum or other material
in all window wells in a manner approved by the department that
makes the window wells smooth and cleanable;
(g) Fixing the top sash in place on all windows, other than
treated or replacement windows, that are free of lead-based paint
on the friction surfaces;
(h) Rehanging all doors as necessary to prevent the rubbing
together of a lead-painted surface with another surface;
(i) Making all bare floors smooth and cleanable;
(j) Ensuring that all kitchen and bathroom floors are overlaid
with a smooth water-resistant covering; and
(k) HEPA-vacuuming and washing of the interior of the affected
property with high phosphate detergent or a department approved
equivalent. + }
SECTION 7. { + (1) Inspections of an affected property to
ensure continuing lead-free or lead-safe status must occur at
intervals of not greater than three years.
(2) Except as provided in subsections (3) and (4) of this
section, the requirement for an inspection of a property that is
certified as lead-free may be satisfied by the owner filing with
the Department of Environmental Quality, under penalty of
perjury, a statement that the tenants occupying an affected
property have not changed since the last inspection and that, to
the best of the owner's belief, no person at risk is utilizing
the affected property.
(3) If the requirement for inspection of an affected property
is satisfied by the filing of a statement under subsection (2) of
this section, upon a change in tenancy or upon a person at risk
utilizing the affected property, the property must be inspected
as provided in subsection (4) of this section.
(4) The owner of an affected property with lead-based paint on
any exterior surface that has been certified as lead-free under
section 6 of this 2003 Act shall submit to the department every
three years a certification by an inspector licensed under ORS
701.515 stating that the exterior painted surfaces of the
affected property are not deteriorated.
(5) The department shall order an inspection of an affected
property at the expense of the owner of the affected property if
the department is notified that the affected property does not
reasonably appear to be lead-free or lead-safe and that a person
at risk utilizes the affected property. Except as provided in
subsection (6) of this section, an inspection required under this
subsection must be completed within 90 days after the department
is notified.
(6) If the department is notified that a person at risk who
utilizes the affected property has an elevated blood lead level,
the inspection under subsection (5) of this section must be
completed within 15 days after the department is notified.
(7) The inspector shall submit a verified report of the result
of the inspection under subsection (5) of this section to the
department and any tenant of the affected property. + }
SECTION 8. { + (1) The Department of Environmental Quality may
enter into agreements, with the Department of Consumer and
Business Services and any municipality administering a building
inspection program under ORS 455.148 or 455.150, for the
Department of Consumer and Business Services or municipality to
act as agents of the Department of Environmental Quality in
identifying and issuing notices for violations of section 5, 6 or
7 of this 2003 Act.
(2) Any administrative action by the Department of Consumer and
Business Services or a municipality under this section must be
reported to the Department of Environmental Quality. The
Department of Environmental Quality shall issue an annual report
outlining specifically the enforcement actions brought pursuant
to this section, the identity of the owners of the affected
properties, the authority bringing the enforcement action, the
nature of the action and the civil penalties imposed or civil
relief obtained. + }
SECTION 9. { + (1) If an owner of an affected property intends
to make repairs or perform maintenance work that will disturb the
paint on interior surfaces of an affected property, the owner
shall give any tenant in the affected property notice as provided
in ORS 90.322 and shall make reasonable efforts to ensure that
when the work is performed all tenants are absent from the
worksite and all persons at risk are absent from the affected
property.
(2) If a tenant must leave an affected property for a period of
24 hours or more in order to allow an owner to perform work that
will disturb the paint on interior surfaces, the owner shall pay
the resulting reasonable expenses of the tenant.
(3) If an owner has made reasonable efforts to cause the tenant
to temporarily leave an affected property in order to perform
work that will disturb the paint on interior surfaces and the
tenant refuses to leave the affected property, the owner is not
liable for any damages arising from the tenant's refusal to
leave.
(4) If an owner has made reasonable efforts to gain access to
an affected property in order to perform any work required for
compliance with section 6 or 7 of this 2003 Act, and the tenant
refuses to allow access after receiving the required notice of
the need for access, the owner is not liable for any damages
arising from the tenant's refusal to allow access. A landlord may
obtain liability protection under this subsection without taking
the actions described in ORS 90.322 (7). + }
SECTION 10. { + The Department of Environmental Quality may
impose a civil penalty, not to exceed $5,000, on a person that
fails to comply with a provision of sections 5 to 7 of this 2003
Act. The department shall impose a civil penalty under this
section in the manner provided in ORS 183.090. + }
SECTION 11. { + (1) Section 6 (1) of this 2003 Act becomes
operative January 1, 2006.
(2) Initial inspection for purposes of certifying an affected
property as lead-free under section 6 of this 2003 Act must occur
on or before January 1, 2006, unless the owner has obtained an
extension of time for the property under subsection (3) of this
section.
(3) Notwithstanding subsection (1) of this section, an owner of
five or more affected properties may apply to the Department of
Environmental Quality for an extension of time in which to bring
one or more of the properties into compliance with section 6 of
this 2003 Act. If an owner receives an extension of time under
this subsection, the owner shall bring the properties into
compliance with section 6 of this 2003 Act on or before January
1, 2009. The department may grant a request for an extension of
time only if:
(a) The owner of the property states under penalty of perjury
that the property for which an extension of time is sought is not
utilized by a person at risk as defined in section 2 of this 2003
Act; and
(b) The owner of the property has complied with the
requirements of section 6 of this 2003 Act for more than 50
percent of the affected properties of the owner. + }
SECTION 12. { + Section 11 of this 2003 Act is repealed
January 2, 2010. + }
{ +
LOANS AND BONDS + }
SECTION 13. { + (1) The Lead-Free or Lead-Safe Property
Revolving Loan Fund is established separate and distinct from the
General Fund. The fund shall consist of proceeds received from
the sale of revenue bonds issued pursuant to section 14 of this
2003 Act, any moneys accrued to the fund from gifts, grants or
donations and any moneys appropriated for that purpose by the
Legislative Assembly. Moneys in the fund are continuously
appropriated to the Department of Environmental Quality to assist
owners of affected properties in meeting the standards for
lead-free certification or lead-safe certification under section
6 of this 2003 Act.
(2) The department may make interest-bearing loans from the
Lead-Free or Lead-Safe Property Revolving Loan Fund to the owners
of affected properties for the purpose of bringing affected
properties into compliance with section 6 of this 2003 Act. An
owner of a property with a pre-1978 dwelling unit occupied by the
owner is eligible for a loan under this section in the same
manner as an owner of an affected property.
(3) The proceeds from the repayment of, and interest on, any
loans from the Lead-Free or Lead-Safe Property Revolving Loan
Fund, minus any repayment obligation to bondholders and
administrative costs, must be returned to the fund and used for
the purpose of making loans under this section.
(4) The department shall take action as necessary to apply for
any available federal assistance for lead-based paint hazard
reduction to be used in conjunction with the Lead-Free or
Lead-Safe Property Revolving Loan Fund. + }
SECTION 14. { + (1) The Department of Environmental Quality
may authorize issuance of revenue bonds as provided in ORS
286.033 in an amount not to exceed $_____ for the purpose of
funding the Lead-Free or Lead-Safe Property Revolving Loan Fund.
(2) The State Treasurer, at the request of the Department of
Environmental Quality, from time to time, may issue and sell
bonds in the name of and on behalf of the State of Oregon in
compliance with the applicable provisions of ORS 286.010,
286.020, 286.031 to 286.061 and 286.105 to 286.135 in the
principal amount the department considers necessary to carry out
the purposes of this section, or to pay or refund any bonds
previously issued by the department for such purposes.
(3) Notwithstanding ORS 286.061, all bonds issued under this
section shall be special revenue obligations of the State of
Oregon and, unless paid from the proceeds of other bonds, shall
be payable as to principal, redemption premium, if any, and
interest, solely from the revenues or assets in the Lead-Free or
Lead-Safe Property Revolving Loan Fund as may be pledged
therefor, subject to existing agreements with the holders of any
bonds, in accordance with any bond declaration. Bonds may be paid
from any source available under this section. All moneys received
from the sale of bonds, net of sales costs, shall be deposited
into the Lead-Free or Lead-Safe Property Revolving Loan Fund.
(4) The State Treasurer shall contract with the Oregon
Department of Administrative Services for the administration and
disbursement of funding provided by this section. + }
{ +
NUISANCE ABATEMENT + }
SECTION 15. { + (1) If the Department of Environmental
Quality, or the Department of Consumer and Business Services or a
municipality acting under an agreement described in section 8 of
this 2003 Act, or a combination thereof, sends written notice of
two or more violations of section 6 of this 2003 Act at the same
affected property, or initiates two or more administrative or
civil actions pursuant to section 8 of this 2003 Act for
violations of section 6 of this 2003 Act at the same affected
property, unless the violations are corrected within the time
provided in a notice or order, the affected property shall be
considered a nuisance.
(2) The Department of Environmental Quality may use moneys from
the Lead-Free or Lead-Safe Property Revolving Loan Fund to abate
lead-based paint hazards at a property that is considered a
nuisance under this section. Upon reasonable notice, the
department may provide for persons licensed under ORS 701.515 for
lead-based paint activity to enter the property and proceed with
lead-based paint hazard abatement and dust and debris disposal.
(3) The Department of Environmental Quality may bring an action
or proceeding against the property owner to recover reasonable
and necessary expenses incurred by the department for abating the
nuisance, including administrative and legal expenses. The
department's certification of expenses is prima facie evidence
that the expenses are reasonable and necessary.
(4) The Department of Environmental Quality or persons
performing abatement of a nuisance under this section are not
liable to an owner of the affected property for costs or damages
that may result from actions taken under this section, including
but not limited to, loss of rent and the cost of temporary
relocation of tenants. This subsection does not preclude
liability for costs or damages as a result of gross negligence or
intentional misconduct. + }
SECTION 16. { + (1) If an owner of an affected property fails
to comply with the lead-free or lead-safe standards under section
6 of this 2003 Act, a complainant may seek injunctive relief from
a court with jurisdiction against the owner of the affected
property in the form of a court order to compel compliance with
the standards of section 6 of this 2003 Act.
(2) A court may not grant the injunctive relief requested
pursuant to subsection (1) of this section unless, at least 30
days prior to the filing of the request for the injunction, the
owner of the affected property has received written notice of the
violation of standards under section 6 of this 2003 Act and has
failed to bring the affected property into compliance with the
applicable standards. The owner of the affected property receives
notice for purposes of this subsection only if one of the
following occurs:
(a) A complainant has, in writing, notified the owner of an
affected property that the property fails to meet the
requirements for either lead-free or lead-safe status under
section 6 of this 2003 Act;
(b) The Department of Environmental Quality, or the Department
of Consumer and Business Services or a municipality acting under
an agreement described in section 8 of this 2003 Act, has, in
writing, notified the owner of the affected property of
violations of section 6 of this 2003 Act at the affected
property; or
(c) An administrative or civil action pursuant to section 8 of
this 2003 Act has been successfully brought by the state or a
municipality to enforce section 6 of this 2003 Act arising out of
violations at the affected property.
(3) A person who prevails in an action under subsection (1) of
this section is entitled to reasonable attorney fees.
(4) A circuit court shall give priority to hearing an action
brought under this section. + }
SECTION 17. { + Sections 5, 7 to 10 and 13 to 16 of this 2003
Act become operative January 1, 2006. + }
{ +
OWNER LIABILITY AND LIABILITY PROTECTION + }
SECTION 18. { + (1) An owner of an affected property is immune
from civil liability to a complainant for injuries or damages
resulting from exposure of a person at risk to a lead-based paint
hazard at an affected property if:
(a) The property is certified as lead-free or as lead-safe
under section 6 of this 2003 Act;
(b) The property owner has made a qualified offer to the
complainant pursuant to section 19 of this 2003 Act, regardless
of whether the qualified offer has been accepted or rejected; and
(c) The elevated blood lead level of the person at risk was
first documented by testing more than 60 days after certification
of the affected property as lead-free or lead-safe pursuant to
section 6 of this 2003 Act.
(2) The immunity from civil liability provided by subsection
(1) of this section applies notwithstanding the alleged basis for
liability.
(3) The immunity described in subsection (1) of this section
does not apply if it is shown that:
(a) The owner obtained the certification of the affected
property as lead-free or lead-safe by fraud;
(b) The owner violated a condition of the certification;
(c) During renovation, remodeling, maintenance or repair of the
affected property after certification, the owner created a
lead-based paint hazard that was present in the affected property
at the time the person at risk was exposed to a lead-based paint
hazard or first was tested with an elevated blood lead level;
(d) The owner failed to respond in a timely manner to
notification by a tenant or by the Department of Environmental
Quality that a lead-based paint hazard might be present; or
(e) The lead poisoning or lead exposure was caused by a source
of lead in the affected property other than lead-based paint.
(4) A complainant may not bring an action against an owner of
an affected property that has been certified as lead-free or
lead-safe under section 6 of this 2003 Act for injuries or
damages resulting from exposure of a person at risk to a
lead-based paint hazard unless the complainant documents the
alleged injury or damage with a test for elevated blood lead
levels and presents the owner of the affected property with
written notice of the claim and test results.
(5) If the test results described in subsection (4) of this
section show a blood lead level in the person at risk of less
than 15 micrograms per deciliter, a complainant may not recover
damages from the owner of the affected property unless the
complainant can show by clear and convincing evidence that the
injury or damage to the person at risk resulted from exposure to
lead-based paint and was knowingly caused by the owner.
(6) If the test results described in subsection (4) of this
section show an elevated blood lead level, the owner may make a
qualified offer under section 19 of this 2003 Act.
(7) If a person at risk is tested and found to have an elevated
blood lead level within 60 days after the person begins utilizing
an affected property that is certified as being in compliance
with section 6 of this 2003 Act, there is a rebuttable
presumption that the exposure to lead-based paint occurred before
the person began utilizing the affected property.
(8) A former owner of an affected property may qualify for the
immunity from liability available under this section and section
19 of this 2003 Act in the same manner as the owner of the
affected property. + }
SECTION 19. { + (1) An owner of an affected property may
qualify for liability protection under section 18 of this 2003
Act by making a qualified offer to a complainant. A qualified
offer must be made in writing and delivered by certified mail,
return receipt requested, within 30 days after the owner is
presented with notice of the tested elevated blood lead level
under section 18 of this 2003 Act.
(2) Except as provided in this subsection, if a complainant
does not accept a qualified offer within 30 days after receipt of
the offer, the offer is considered rejected. By mutual agreement,
the parties may extend the period for acceptance of the qualified
offer.
(3) Subject to the right in subsection (5) of this section,
acceptance of a qualified offer by a complainant discharges and
releases all potential liability of the owner, the owner's
insured or principal, and any participating coowner to the
complainant for alleged injury or damage caused by the lead-based
paint hazard in the affected property.
(4) An owner may not represent to a complainant that an offer
of settlement in an action resulting from a lead-based paint
hazard in an affected property is a qualified offer unless:
(a) The affected property has been certified as lead-free or
lead-safe under section 6 of this 2003 Act; and
(b) The person making the representation reasonably believes
that the settlement offer satisfies all requirements of this
section.
(5) If a settlement offer purports to be a qualified offer
without satisfying the requirements of this section, any
settlement resulting from the offer is voidable by the
complainant.
(6) If a person presenting a settlement offer misrepresents
that the offer is a qualified offer, the statute of limitations
otherwise applicable to commencement of an action for injury or
damage to a person at risk from an elevated blood lead level
ceases to run until the misrepresentation is discovered or
reasonably should have been discovered. + }
SECTION 20. { + (1) A copy of a qualified offer must be sent
to the Department of Environmental Quality. The department shall
maintain a copy of the qualified offer in the case management
file of the person at risk.
(2) The department shall notify the complainant of state and
local resources available for lead poisoning prevention and
treatment.
(3) A qualified offer must include payment for reasonable
expenses and costs incurred by or on behalf of the person at risk
with an elevated blood lead level for:
(a)(A) The relocation of the household of the person at risk to
lead-free, lead-safe or post-1977 housing without a scheduled
return to the affected property and payment of all expenses
necessitated by the relocation, including but not limited to:
(i) Moving and hauling of belongings;
(ii) HEPA vacuuming of all upholstered furniture;
(iii) Payment of a security deposit for the lead-free,
lead-safe or post-1977 housing;
(iv) Installation and connection of utilities and appliances;
(v) Subsidizing rent; and
(vi) Incidental outlays; or
(B) The temporary relocation of the household of the person at
risk to lead-free, lead-safe or post-1977 housing while necessary
hazard reduction treatments are being performed in the affected
property to make that affected property lead-safe;
(b) Medical treatment for the person at risk as determined by
the treating physician or other health care provider of the
person at risk to be necessary to mitigate the effects of lead
exposure; and
(c) Reasonable attorney fees.
(4) Subsection (3)(b) of this section applies only if coverage
of the medical treatment is not otherwise available to the person
at risk by the Oregon Health Plan or by a health insurance
policy. An insurer does not have a right of subrogation for
medical treatment payments made under this section.
(5) The maximum amounts payable under a qualified offer made
under this section are:
(a) $10,000 for relocation as described in subsection (3)(a) of
this 2003 Act.
(b) $25,000 for medical treatment as described in subsection
(3)(b) of this section.
(6) All payments under a qualified offer must be paid to the
provider of the service, except that payment of incidental
expenses may be paid directly to the complainant.
(7) The state may not consider payments made under a qualified
offer to be income or an asset of a complainant for purposes of
determining eligibility under any state or, unless otherwise
provided by federal law, any federal entitlement program.
(8) A qualified offer must include a written statement by the
owner of the affected property, under the penalties of perjury,
that the affected property is certified under section 6 of this
2003 Act.
(9) Notwithstanding ORS 40.190 and 40.195, a qualified offer
may be admitted into evidence for any proper purpose. + }
SECTION 21. { + (1) In an action on behalf of a person at risk
for alleged injuries or damages resulting from exposure to
lead-based paint hazards, the owner of an affected property that
is not in compliance with section 6 of this 2003 Act during the
period the affected property is utilized by the person at risk is
presumed to have failed to exercise reasonable care with respect
to lead-based paint hazards during that period.
(2) The owner has the burden of rebutting the presumption in
subsection (1) of this section by clear and convincing evidence.
(3) The plaintiff in a successful action against an owner of an
affected property is entitled to recover reasonable attorney
fees. + }
SECTION 22. { + (1) As used in this section:
(a) 'Complainant' has the meaning given that term in section 2
of this 2003 Act.
(b) 'Lead-based paint hazard' has the meaning given that term
in section 2 of this 2003 Act.
(c) 'Qualified offer' means an offer described in sections 19
and 20 of this 2003 Act.
(2) A person commits the crime of falsifying a lead-based paint
settlement offer if the person:
(a) Presents an offer to a complainant in settlement of an
action resulting from exposure to a lead-based paint hazard; and
(b) Knowingly misrepresents that the settlement offer is a
qualified offer.
(3) Falsifying a lead-based paint settlement offer is a Class A
misdemeanor. + }
{ +
INSURANCE + }
SECTION 23. { + (1) As used in this section, 'affected
property,' 'inspection,' 'lead-based paint hazard' and ' owner'
have the meanings given those terms in section 2 of this 2003
Act.
(2) An insurer authorized by the Department of Consumer and
Business Services to issue casualty insurance to rental property
owners may not exclude coverage for injury or damage caused by
exposure to lead-based paint hazards. An insurance policy may
limit the amounts payable under the coverage required by this
subsection to the maximum amounts described in section 20 (5) of
this 2003 Act.
(3) All insurers issuing casualty insurance policies, covering
affected properties that are in compliance with section 6 of this
2003 Act shall offer coverage for bodily injury caused by
exposure to lead-based paint hazards. The coverage must apply to
all claims made more than 60 days after certification of the
affected property as lead-free or lead-safe under section 6 of
this 2003 Act that assert bodily injury resulting from exposure
to lead-based paint hazards on the insured affected property.
Policy limits for the offered coverage must be in amounts equal
to or greater than the underlying policy limits of the applicable
policy insuring the affected property.
(4) Notwithstanding subsection (3) of this section, an insurer
may withhold the coverage for bodily injury caused by exposure to
lead-based paint hazards if, at the time insurance is sought, the
owner refuses to present to the insurer proof that the property
is certified as lead-free or lead-safe under section 6 of this
2003 Act.
(5) The Director of the Department of Consumer and Business
Services may excuse casualty insurers from the requirements of
subsection (3) of this section if the director:
(a) Determines that coverage for bodily injury from exposure to
lead-based paint hazards is not available, other than as surplus
lines insurance, for affected properties that are in compliance
with section 6 of this 2003 Act; and
(b) Orders the formation of a market assistance plan under ORS
735.210 to provide coverage of at least $300,000 per property for
bodily injury resulting from exposure to lead-based paint hazards
at affected properties complying with section 6 of this 2003
Act. + }
SECTION 24. { + The Department of Consumer and Business
Services shall:
(1) Issue timely advisory bulletins to all department
authorized casualty insurers regarding insurer responsibilities
under section 23 of this 2003 Act; and
(2) Issue timely advisory bulletins to all department licensed
insurance agents outlining the provisions of section 23 of this
2003 Act and the new requirements for department authorized
insurers. + }
SECTION 25. { + (1) The prohibition in section 23 (2) of this
2003 Act on excluding coverage for injuries or damages caused by
lead-based paint becomes operative March 1, 2004.
(2) Notwithstanding subsection (1) of this section, for a
policy that prior to March 1, 2004, excludes coverage for losses
or damages caused by lead-based paint hazards, the prohibition in
section 23 (2) of this 2003 Act becomes operative on the earlier
of March 1, 2006, or 60 days after certification under section 6
of this 2003 Act of the property covered under the policy.
(3) The coverage requirement in section 23 (3) of this 2003 Act
becomes operative January 1, 2006, subject to any action before,
on or after January 1, 2006, by the Director of the Department of
Consumer and Business Services pursuant to section 23 (5) of this
2003 Act. + }
SECTION 26. { + Section 24 of this 2003 Act is repealed July
1, 2007. + }
{ +
TAX CREDIT + }
SECTION 27. { + (1) There is allowed a credit against tax due
under ORS chapter 316, or if the taxpayer is a corporation under
ORS chapter 317, for taxpayers that incur expenses for the
abatement of lead-based paint hazards necessary to obtain
certification of property with a pre-1978 dwelling as lead-free
or lead-safe under section 6 of this 2003 Act if the taxpayer:
(a) Has the required abatement of lead-based paint hazards as
defined in section 2 of this 2003 Act performed by a contractor
licensed under ORS 701.515; and
(b) Obtains a written report by an inspector licensed under ORS
701.515 that the abatement of lead-based paint hazards at the
property has been completed in accordance with all applicable
requirements and that the property is lead-free or lead-safe as
described in section 6 (2) and (3) of this 2003 Act.
(2) The tax credit in this section is available to a taxpayer
for the removal of lead-based paint on property with a pre-1978
dwelling unit owned and occupied by the taxpayer to the same
extent that the credit is available to the owner of a property
described in subsection (1) of this section.
(3) The tax credit allowed by this section may not exceed the
lesser of the amount paid for the lead-based paint hazard
reduction or $2,500 for each property.
(4) Any tax credit otherwise allowed under this section that is
not used by the taxpayer in a particular tax year may be carried
forward and offset against the taxpayer's tax liability for the
next succeeding tax year. Any credit remaining unused in such
next succeeding tax year may be carried forward and used in the
second succeeding tax year. Any credit remaining unused in such
second succeeding tax year may be carried forward and used in the
third succeeding tax year. Any credit remaining unused in such
third succeeding tax year may be carried forward and used in the
fourth succeeding tax year. Any credit remaining unused in such
fourth succeeding tax year may be carried forward and used in the
fifth succeeding tax year, but may not be used in any tax year
thereafter. + }
SECTION 28. { + Section 27 of this 2003 Act applies to tax
years beginning on or after January 1, 2004. + }
SECTION 29. { + As used in this section and sections 30 to 33
of this 2003 Act:
(1) 'Affected property,' 'elevated blood lead level, ' '
lead-based paint hazard,' 'owner' and 'person at risk' have the
meanings given those terms in section 2 of this 2003 Act.
(2) 'Lead-free and lead-safe housing' means affected properties
complying with section 6 of this 2003 Act. + }
{ +
LEAD POISONING PREVENTION COMMISSION + }
SECTION 30. { + (1) There is established the Lead Poisoning
Prevention Commission consisting of 15 members. The membership of
the commission must consist of the following:
(a) The members of the Lead Poisoning Coordinating Council
created under section 31 of this 2003 Act.
(b) One member of the Senate, appointed by the President of the
Senate.
(c) One member of the House of Representatives, appointed by
the Speaker of the House of Representatives.
(d) Nine members appointed by the Governor. The members
appointed by the Governor must include:
(A) An advocate for children;
(B) A health care provider;
(C) A parent of a lead-poisoned child;
(D) A representative of local government;
(E) Two owners of rental property in this state;
(F) A representative from the insurance industry that offers
casualty insurance in this state;
(G) A person licensed under ORS 701.515 (3)(a) to (d); and
(H) One public member.
(2) The term of a member appointed by the Governor is four
years. A member appointed by the Governor is not eligible for
reappointment.
(3) The commission shall elect one member to serve as
chairperson and one member to serve as vice chairperson for the
terms and with the duties and powers necessary for the
performance of the functions of those offices as the commission
determines.
(4) Members of the task force who are appointed by the Governor
are entitled to compensation and expenses in the manner and
amounts provided for in ORS 292.495. Claims for compensation and
expenses incurred in performing functions of the commission shall
be paid out of funds appropriated to the Department of Human
Services for that purpose.
(5) The commission shall:
(a) Study and collect information on the effectiveness of
sections 2 to 9, 13 to 16, 18 to 21, 23 and 30 to 33 of this 2003
Act in fulfilling the legislative purposes and intentions
described in section 3 of this 2003 Act;
(b) Make policy recommendations on achieving the legislative
purposes described in section 3 of this 2003 Act;
(c) Consult with:
(A) The Department of Environmental Quality on the
implementation, administration and enforcement of sections 5 to
7, 13 to 16 and 18 to 21 of this 2003 Act;
(B) The Department of Consumer and Business Services on the
implementation, administration and enforcement of section 23 of
this 2003 Act; and
(C) The Department of Human Services on the implementation of
sections 30 to 33 of this 2003 Act; and
(d) Write and submit a biennial report to the Governor on the
results of implementing, administering and enforcing sections 5
to 7, 13 to 16, 18 to 21, 23, and 30 to 33 of this 2003 Act. + }
{ +
LEAD POISONING PREVENTION COORDINATING COUNCIL + }
SECTION 31. { + (1) The Director of Human Services, or a
designee, shall create and chair a Lead Poisoning Prevention
Coordinating Council. The council shall include a member
appointed by the Director of the Department of Environmental
Quality, a member appointed by the Director of the Department of
Consumer and Business Services and a member appointed by the
Construction Contractors Board.
(2) The Department of Human Services, in consultation with the
council and the Lead Poisoning Prevention Commission established
under section 30 of this 2003 Act, shall:
(a) Establish a statewide program for the prevention,
screening, diagnosis and treatment of lead poisoning; and
(b) Establish a program for the elimination of the sources of
lead poisoning through research, educational, epidemiologic and
clinical activities as may be necessary. + }
{ +
INFORMATION PROGRAMS + }
SECTION 32. { + (1) In addition to any other programs
developed under ORS 431.920 for educating the public, the
Department of Human Services shall sponsor a series of public
service announcements on radio, television, the World Wide Web
and print media about the nature of lead-based paint hazards, the
importance of lead-free and lead-safe housing, and the purposes
and responsibilities set forth in sections 2 to 9, 13 to 16, 18
to 21 and 30 to 33 of this 2003 Act. The department coordinating
this public information initiative shall seek the participation
and involvement of private industry organizations, including
organizations involved in real estate, insurance, mortgage
banking and pediatrics.
(2) The department, in consultation with the Lead Poisoning
Prevention Commission and Lead Poisoning Prevention Coordinating
Council, shall develop culturally and linguistically appropriate
information pamphlets regarding childhood lead poisoning, the
importance of testing for elevated blood lead levels and
preventing and treating childhood lead poisoning, and where
appropriate, the requirements of sections 5 to 7, 13 to 16, 18 to
21 and 30 to 33 of this 2003 Act. The information pamphlets must
be distributed:
(a) By the owner of any affected property at the time of the
initiation of a rental agreement to a new tenant whose household
includes a person at risk or any woman less than 40 years of age;
(b) By the health care provider at the time of a child's birth
and at the time of any immunization of a child less than six
years of age, to the parent or legal guardian of the child,
unless the health care provider has given an information pamphlet
to the parent or legal guardian within the prior 12 months; and
(c) By the operator of any child care facility, preschool or
kindergarten class on or before October 15 of each calendar year
to the parent or legal guardian of a child less than six years of
age.
(3) The department shall establish guidelines and a trainer's
manual for a lead-safe housing awareness seminar with a total
class time of three hours or less. Courses may be offered by
professional associations and community organizations with a
training capacity, existing accredited educational institutions
and for-profit educational providers. Course proposals may be
reviewed and approved, on the criteria of seminar content and
qualifications of instructors, by the department. + }
{ +
SCREENING + }
SECTION 33. { + (1) The Department of Human Services shall
establish a program for early identification of persons at risk
with elevated blood lead levels. The program shall systematically
screen persons at risk in the target populations identified in
subsection (2) of this section for the presence of elevated blood
lead levels. The department shall, after consultation with
recognized professional medical groups and other sources as the
department considers appropriate, adopt rules establishing:
(a) The methods and intervals for screening children under six
years of age for lead poisoning and elevated blood lead levels;
and
(b) Guidelines for the medical follow-up on children found to
have elevated blood lead levels.
(2) In developing screening programs to identify persons at
risk with elevated blood lead levels, the department shall give
priority to screening:
(a) Children enrolled in the Oregon Health Plan who are one,
two, three and six years of age;
(b) Children under the age of six years who exhibit delayed
cognitive development or other symptoms of childhood lead
poisoning;
(c) Persons at risk who reside in the same dwelling unit, or
recently resided in the same dwelling unit, as a person who has a
tested blood lead level of 10 micrograms per deciliter or
greater;
(d) Persons at risk who reside, or who have recently resided,
in buildings or geographical areas where significant numbers of
cases of lead poisoning or elevated blood lead levels have been
reported within the preceding three years;
(e) Persons at risk who reside, or recently resided, in
affected properties contained in buildings that during the
preceding three years have been subject to an enforcement action
described in section 8 of this 2003 Act, nuisance abatement under
section 15 of this 2003 Act, or request for injunctive relief
pursuant to section 16 of this 2003 Act;
(f) Persons at risk who reside or recently resided in an
affected property that has the same owner as another affected
property that, during the preceding three years, has been subject
to an enforcement action described in section 8 of this 2003 Act,
nuisance abatement under section 15 of this 2003 Act, or request
for injunctive relief pursuant to section 16 of this 2003 Act;
and
(g) Persons at risk who reside in other buildings or
geographical areas that the department reasonably determines to
have a significant risk of persons with blood lead levels of 10
micrograms per deciliter or greater.
(3) The department shall maintain comprehensive records of all
screenings conducted pursuant to this section. The records shall
be indexed geographically and by owner in order to determine the
location of areas of relatively high incidence of lead poisoning
and other elevated blood lead levels. The statistical data for
geographic areas are public records under ORS 192.420.
(4) All cases or probable cases of lead poisoning, as defined
by the department by rule, found in the course of screenings
conducted pursuant to this section must be reported immediately
to the affected individual, or the parent or legal guardian of
the affected individual, and to the Department of Environmental
Quality. + }
SECTION 34. { + The Department of Human Services shall
establish the screening and record keeping programs described in
section 33 of this 2003 Act on or before April 1, 2004. + }
{ +
REAL ESTATE AGENCY + }
SECTION 35. { + The Real Estate Agency shall:
(1) Require persons issued or renewed licenses by the agency to
demonstrate familiarity with sections 5 and 6 of this 2003 Act;
and
(2) Develop an educational program for real estate brokers and
salespersons regarding property owner duties and responsibilities
under sections 5 and 6 of this 2003 Act. + }
SECTION 36. { + The Real Estate Agency shall impose
requirements and adopt educational programs under section 35 of
this 2003 Act on or before July 1, 2005. + }
{ +
CAPTIONS + }
SECTION 37. { + The unit captions used in this 2003 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2003 Act. + }
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