Chapter 04-223

Chapter 223

2004 -- S 3170 SUBSTITUTE A AS AMENDED

Enacted 6/30/04

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- LEAD HAZARD MITIGATION

Introduced By: Senators J Montalbano, McCaffrey, Walaska, Felag, and Cote

Date Introduced: June 03, 2004

It is enacted by the General Assembly as follows:

SECTION 1. Section 23-24.6-17 of the General Laws in Chapter 23-24.6 entitled "Lead

Poisoning Prevention Act" is hereby amended to read as follows:

23-24.6-17. Lead hazard reduction. [Effective until July 1, ~~2007~~ 2008.] -- (a) The

director shall promulgate lead hazard reduction regulations. These regulations shall:

(1) Specify the circumstances under which owners of dwellings, dwelling units, or

premises must undertake lead hazard reduction in order to remedy conditions that present a clear

and significant health risk to occupants of the dwelling, dwelling unit, or premises;

(2) Define lead hazard reduction with respect to both the sources of lead that must be

treated and acceptable and unacceptable treatment methods;

(3) Require owners to make all reasonable efforts to ensure that occupants are not

present during the lead hazard reduction; variances may be granted according to regulations;

provided, that the owners are not responsible for providing alternative housing. If the occupants

refuse to vacate the premises after all reasonable efforts by the owner to ensure compliance

within this section, then the owners are exempt from any liability arising out of the occupants'

noncompliance. If the occupants are required to vacate the premises for a three (3) day period or

longer, there shall be a pro-rata adjustment or abatement of the rent during the period of lead

hazard reduction;

(4) Specify containment and clean up measures to be taken as part of lead hazard

reduction activities;

(5) Contain measures to protect the occupational safety and health of lead inspectors,

contractors, supervisors, workers, and other persons who perform lead hazard reduction which

may be more, but not less, stringent than applicable federal standards; and

(6) Specify the circumstances under which owners of dwellings, dwelling units, or

premises must undertake lead hazard reduction to at least the lead safe level of protect occupants

and neighbors.

(b) (1) Until July 1, ~~2004~~ 2005, the owner of any dwelling, dwelling unit, or premises

shall be considered as an "innocent owner", and liability as to lead poisoning is limited to the

reduction of any lead hazard as determined by a comprehensive environmental lead inspection

within the requirements of the Housing Maintenance and Occupancy Code, chapter 24.3 of title

45. The "innocent owner" provision will cease upon the owner's unreasonable failure to correct

any lead paint violation within ninety (90) days of notice as provided in that chapter. Provided,

any owner who has received notices on three (3) or more properties shall be presumed to be an

unreasonable failure to correct.

(2) "Innocent owner" status, and the limits on liability set forth in this subsection, shall

not apply to any incident of childhood lead poisoning reported to the department on or after July

1, ~~2004~~ 2005, and liability for lead poisonings after July 1, ~~2004~~ 2005, but shall include such

correction of lead hazards as may be required by this chapter.

hazard reduction as required by department regulations shall be issued a notice of violation by the

director in the manner provided by the Housing Maintenance and Occupancy Code, chapter 24.3

of title 45. In addition to any other enforcement authority granted under this chapter, the

department shall have the authority to utilize pertinent provisions of that code in enforcing this

section in the same manner as an enforcing officer under the code, including but not limited to the

provisions of sections 45-24.3-17 -- 45-24.3-21, except that the director or his or her designee

may provide a reasonable time up to ninety (90) days for the correction of any violation alleged

and, except where there exists a hardship as to financing the lead hazard reduction, or where

material, personnel, or weather delays the reduction completion. Except as herein provided, if

after ninety (90) days following the date of issuance of a notice of violation by the department,

the owner has failed to correct the lead hazards, the department shall issue a second notice of

violation.

(d) (1) One or more lead paint waste depositories shall be established and be in operation

by January 1, 1993. The department of environmental management shall work with the solid

waste management corporation to promulgate regulations governing these lead paint waste

depositories.

(2) Each lead paint waste depository may set fees to cover the costs of lead paint waste

storage, reduction, consolidation, incineration, and/or out of state disposal.

SECTION 2. Sections 42-128.1-8, 42-128.1-9, 42-128.1-10, 42-128.1-11 and 42-128.1-

12 of the General Laws in Chapter 42-128.1 entitled "Lead Hazard Mitigation [Repealed

effective July 1, 2007.]" are hereby amended to read as follows:

42-128.1-8. Duties of property owners of pre-1978 rental dwellings. [Repealed

effective July 1, ~~2007~~ 2008.] -- (a) Property owners of pre-1978 rental dwellings, which have

not been made lead safe or have not been lead hazard abated, shall mitigate lead hazards and shall

comply with all the following requirements:

(1) Learn about lead hazards by taking a lead hazard awareness seminar;

(2) Evaluate the dwelling unit and premises for lead hazards consistent with the

requirements for a lead hazard control evaluation;

(3) Correct identified lead hazards by meeting and maintaining the lead hazard

mitigation standard;

(4) Provide tenants: (i) basic information about lead hazard control; (ii) a copy of the

independent clearance inspection; and (iii) information about how to give notice of deteriorating

conditions;

(5) Correct lead hazards within thirty (30) days after notification from the tenant of a

dwelling unit with an at risk occupant, or as provided for by section 34-18-22.

(b) New property owners of a pre-1978 rental dwelling that is occupied by an at risk

occupant shall have up to sixty (60) days to meet requirements for lead hazard mitigation, if those

requirements were not met by the previous owner at the time of transfer, provided that the new

property owner has the property visually inspected within ten (10) business days after assuming

ownership to determine conformity with the lead hazard control standard.

ownership or tenancy after July 1, ~~2004~~ 2005; provided further that unless requested and agreed

to by an at-risk occupant, meeting the lead hazard mitigation standard shall not be construed to

authorize a property owner to compel or cause a person, who is in tenancy on January 1, ~~2003~~

2004, and remains in tenancy continuously thereafter, to vacate a rental unit temporarily or

otherwise.

(d) If the tenant receives no response to the notification, if the response is in the tenant's

opinion unsatisfactory, or if the remedy performed is in the tenant's opinion unsatisfactory, the

tenant may request a review of the matter by the housing resources commission. After its review

of the matter, the housing resources commission shall either send notice to the property owner in

which notice shall be issued in a manner substantially similar to a notice of violation issued by

the director pursuant to the Housing Maintenance Code, chapter 24.3 of title 45, or promptly

inform the tenant of the reasons why the notice is not being issued.

42-128.1-9. Insurance coverage. [Repealed effective July 1, ~~2007~~ 2008.] -- (a) The

department of business regulation shall by January 1, 2003, establish a uniform policy with regard

to exclusion for lead poisoning and shall adopt any rules and requirements that may be necessary

to assure the availability of insurance coverage for losses and damages caused by lead poisoning,

in accordance with the provisions of this chapter, which policy and rules shall apply to liability

coverage available to property owners. The department of business regulation shall have the

authority and is empowered, consistent with the requirements of chapter 35 of this title, to

promulgate rules and regulations which shall enable it to compile and analyze data and to make

determinations with regard to the availability of and rates for lead liability coverage.

(b) Except as otherwise provided by this chapter, no insurance company licensed or

permitted by the department of business regulation to provide liability coverage to rental property

owners shall exclude, after June 30, ~~2004~~ 2005, coverage for losses or damages caused by lead

poisoning. The department of business regulation shall not permit, authorize or approve any

exclusion for lead poisoning, except as specifically provided for by this chapter, that was not in

effect as of January 1, 2000, and all previously approved exclusions shall terminate June 30, ~~2004~~

2005. As of July 1, ~~2004~~ 2005, coverage for lead poisoning shall be included in the policy or

offered by endorsement, as set forth in this section.

policies covering pre-1978 rental housing in compliance with the requirements of this chapter for

lead hazard mitigation or with the requirements of chapter 24.6 of title 23 for lead safe housing,

within the state of Rhode Island, shall, effective July 1, ~~2004~~ 2005, include in the policy coverage

for liability for injury, damage, or death resulting from occurrences of lead poisoning in an

amount equal to and no less than the underlying policy limits for personal injury/bodily injury

coverage provided under the policy so issued to a residential rental property owner. The property

owner shall, if requested by the insurer, present to the insurance company, either: (1) proof of

certificate of compliance of an independent clearance inspection and of any affidavit of visual

inspection required to maintain the validity of the independent clearance inspection; (2) proof of

meeting the mitigation standard in the form of a clearance exam showing that lead hazards are

mitigated; or (3) proof of abatement. This proof shall be prima facie evidence of compliance with

the requirements of this chapter. In any subsequent renewal, the insurer may require any

continuing proof whenever the certificate is expiring, has expired, or is otherwise invalidated.

(d) For residential rental properties that have not been brought into compliance with the

requirements for lead hazard mitigation pursuant to this chapter or for lead hazard reduction

pursuant to chapter 24.6 of title 23, effective July 1, ~~2004~~ 2005, for residential rental property

owners who own or owned a substantial legal or equitable interest in one property and have had

no more than one unremediated dwelling unit at which a child was poisoned prior to July 1, ~~2004~~

2005, and for residential property owners who own or owned more than one property and have

had no more than two unremediated dwelling units at which a child was poisoned prior to July 1,

~~2004~~ 2005, an insurance company, which provides liability insurance to a residential rental

property owner, shall either offer lead liability coverage for bodily injury, which shall be equal to

the underlying limits of liability coverage for the property, by endorsement, or shall assist the

insured in placing lead liability coverage through the program commonly known as the Rhode

Island FAIR Plan either directly or through one of the insurance company's agents or brokers, and

the Rhode Island FAIR Plan shall make available liability coverage for damages caused by lead

poisoning to the class of property owners described in this subsection. If the insured seeks lead

liability coverage with the FAIR Plan, the FAIR Plan may use reasonable underwriting

guidelines, as approved by the department of business regulation to underwrite the property. Any

property owner, who fails to remediate a property, after a notice of violation subsequent to June

30, ~~2004~~ 2005, and any property which is not remediated after notice of a violation subsequent to

June 30, ~~2004~~ 2005, shall not be eligible to receive an offer of coverage and shall be subject to

cancellation and non-renewal of that coverage if the property is not found to be in compliance

with the lead law within ninety (90) days of the date of issuance of the notice by the director, or

the housing resources commission, as applicable.

(e) Rates for lead poisoning liability coverage, as specified in subsections (c) and (d) of

this section, shall be approved by the department of business regulation, notwithstanding any

limits on rate approval authority established by the provisions of chapter 65 of title 27 and subject

to the provisions of sections 27-44-6 and 27-44-7, using the following standards:

(1) That they are not excessive, inadequate, or unfairly discriminatory;

(2) That consideration is given to:

(i) Past and prospective loss experience within the state of Rhode Island;

(ii) A reasonable margin for profits and contingencies;

(iii) Past and prospective expenses specifically applicable to the state of Rhode Island:

(iv) Any other data, including data compiled in other states, especially regarding

experience data for lead liability coverages, that the department may deem necessary; and

(v) Past history of the owner with regard to lead poisoning or any associated violations.

(f) The department of business regulation shall have the authority and is empowered,

consistent with the requirements of chapter 35 of this title, to promulgate rules and regulations to

enable it to compile and analyze data and to make determinations with regard to the availability

of and rates for lead liability coverage. In order to effect the purposes of this section insurers shall

file, on or before October 1, ~~2003~~ 2004, the proposed language of endorsements for lead liability

coverage and the proposed rates for that coverage with the department.

(g) All endorsements, rates, forms and rules for lead liability coverage approved by the

department of business regulation to be effective on or after July 1, 2004 are hereby extended to

be effective July 1, 2005. Prior to July 1, 2005, insurers and advisory organizations shall continue

to utilize all endorsements, rates, forms and rules in effect on June 30, 2004 for lead liability

coverage. The department shall not approve any new endorsements, rates, forms or rules for lead

liability coverage in pre-1978 residential rental properties unless the filings are submitted in

accordance with the provisions of this act. The department is hereby authorized to promulgate

reasonable rules and regulations to carry out the provisions of this section.

42-128.1-10. Right to housing where lead hazards are corrected. [Repealed effective

July 1, ~~2007~~ 2008.] -- (a) Pregnant women and families with children under six (6) years of age

shall be deemed to have a right, to housing in which lead hazards have been mitigated or abated.

(b) Injunctive Relief. - Effective July 1, ~~2004~~ 2005, if the property owner of a rental

dwelling fails to comply with such standards for lead hazard mitigation, or abatement, as

applicable, a right of private action shall exist that allows households that include an at risk

occupant to seek injunctive relief from a court with jurisdiction against the property owner in the

form of a court order to compel compliance with requirements for lead hazard control or

mitigation. A person who prevails is entitled to an award of the costs of the litigation and

reasonable attorneys' fees in an amount to be fixed by the court. Cases brought before the court

under this section shall be granted an accelerated hearing.

42-128.1-11. Enforcement. [Repealed effective July 1, ~~2007~~ 2008.] -- (a) The standards

for lead hazard control and for lead hazard mitigation in pre-1978 housing shall be considered

basic housing standards and shall be enforceable through the provisions of this chapter and

through procedures established in chapter 24.2 of title 45 and chapter 24.3 of title 45.

(b) Minimum Housing Standards and Housing Maintenance and Occupancy Code. - In

order to establish consistency between state and local programs pertaining to enforcement of

standards for housing and housing occupancy and to provide for broadly available, multiple

means of identifying instances of noncompliance with this chapter and enforcing the requirements

of this chapter, the following provisions regarding Minimum Housing Standards and Housing

Maintenance and Occupancy Code shall be effective:

(1) The ordinances, rules, and regulations for "Minimum Housing Standards" adopted

pursuant to section 45-24.2-3 shall on or before July 1, ~~2004~~ 2005, include provisions for lead

hazard control.

(2) The Housing Maintenance and Occupancy Code, established by chapter 24.3 of title

23, shall, effective July 1, ~~2004~~ 2005, include provisions consistent with a continuing and

ongoing responsibility for lead hazard mitigation as required by the department of health

standards.

42-128.1-12. Independent evaluation. [Repealed effective July 1, ~~2007~~ 2008.] -- In

order to assure the effectiveness of the lead hazard awareness mitigation program established by

this chapter and to recommend any changes, which may be necessary to appropriate, the auditor

general shall:

(1) (i) Conduct a performance audit for the period ending December 31, 2003, of the

duties and responsibilities assigned to the state agencies and to political subdivisions by this

chapter and by the Lead Poisoning Prevention Act, chapter 24.6 of title 23, and of the

effectiveness of this chapter in meeting its purposes. The auditor general may contract with

independent firms and organizations with expertise in lead poisoning prevention and lead hazard

mitigation to assist with the evaluation of matters set forth in this subsection.

(ii) The auditor general's report shall be submitted to the governor, the speaker of the

house, the president of the senate, the chairperson of the housing resources commission and the

director of health, on or before March 31, ~~2004~~ 2005, and shall contain, as appropriate,

recommendations: (A) to make the programs established by this chapter and by the Lead

Poisoning Prevention Act more effective in achieving their respective purposes; and (B) to

address any unreasonable hardships caused by this chapter or likely to be caused by this chapter

with its full implementation July 1, ~~2004~~ 2005.

(iii) The performance audit required by this subdivision shall, in addition to the

examination of effectiveness of administration and the efficiency and adequacy of state agencies

and political subdivisions in the performance of their duties under this chapter and the Lead

Poisoning Prevention Act, include consideration of the following matters:

(A) The number and type and date of public service announcements required by section

42-128.1-6(1);

(B) The availability and distribution of education materials specified by section 42-

128.1-6(2)(i);

persons who have participated in those seminars;

(D) The number of "mitigation inspectors," average length of time necessary to conduct

the inspections, the cost of meeting standards per inspection, and the availability of inspectors to

conduct the inspections, at a reasonable cost needed in the various geographic areas of the state;

(E) The availability of programs to assist property owners, especially low and moderate

income property owners;

(2) Conduct a performance audit for the period ending June 30, 2006, of the duties and

responsibilities, as assigned by this chapter, to state agencies and political subdivisions and of the

effectiveness of this chapter in meeting its purposes, especially with regard to increasing the

supply of housing in which lead hazards have been mitigated and in reducing the incidence and

severity of lead poisoning in Rhode Island. The auditor general may contract with independent

firms and organizations with expertise in lead poisoning prevention and lead hazard mitigation to

assist with the evaluation of matters set forth in this chapter. The auditor general's report shall be

submitted to the governor, the speaker of the house, the president of the senate, the chairperson of

the housing resources commission and the director of health, on or before January 1, 2007, and

shall contain, as appropriate, recommendations: (i) to make the programs established by this

chapter more effective in achieving the respective purposes; and (ii) to redress any unreasonable

hardships caused by this chapter or likely to be caused by this chapter.

SECTION 3. Notwithstanding any provisions of this act to the contrary, if an insurer, the

Fair plan or an insurance producer has acted in good faith reliance on the July 1, 2004 effective

date set forth in the act prior to its amendment, such insurer, insurance producer, or the Fair plan

shall be immune from any and all liability arising out of such act; provided, however, that any

proceeds received by any insurer, the Fair plan or by any insurance producer as the result of any

increase in premiums charged in anticipation of said July 1, 2004 effective date shall be refunded

in full not later than sixty (60) days after the effective date of this act.

SECTION 4. Section 6 of Chapter 187 of the Public Laws of 2002, and Section 6 of

Chapter 188 of the Public Laws of 2002 are hereby amended to read as follows:

SECTION 6. Sunset provision. – This act shall be and is hereby repealed effective July 1,

~~2007~~ 2008.

SECTION 5. This act shall take effect upon passage.

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LC03592/SUB A

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