0001|                            HOUSE BILL 273
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0002|     43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003|                            INTRODUCED BY
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0004|                              RICK MIERA
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0005|     
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0006|                                   
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0007|     
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0008|  FOR THE LEGISLATIVE HEALTH AND HUMAN SERVICES COMMITTEE
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0009|                              
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0010|                           AN ACT
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0011|     RELATING TO HEALTH; CREATING A PROGRAM TO PREVENT LEAD
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0012|     POISONING IN CHILDREN; PROVIDING POWERS AND DUTIES; PROVIDING
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0013|     FOR TRAINING AND CERTIFICATION CONCERNING LEAD HAZARD
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0014|     ACTIVITIES IN TARGET HOUSING; PROVIDING FOR ENFORCEMENT;
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0015|     CREATING A FUND; PROVIDING FOR FEES, SANCTIONS AND PENALTIES;
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0016|     PROVIDING FOR SUNSET OF THE PROGRAM; MAKING AN APPROPRIATION.
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0017|     
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0018|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0019|          Section 1.  SHORT TITLE.--This act may be cited as the
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0020|     "Lead Hazard Act".
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0021|          Section 2.  PURPOSES.--The purposes of the Lead Hazard
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0022|     Act are to:
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0023|               A.  establish, pursuant to federal requirements, a
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0024|     program in the department for prevention of childhood lead
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0025|     poisoning through regulation of work practices for lead hazard
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0001|     identification, risk assessment, reduction and abatement in
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0002|     target housing;
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0003|               B.  establish the legislative and regulatory
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0004|     framework necessary for New Mexico to be eligible for federal
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0005|     funding to identify and abate lead hazards for children and
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0006|     help prevent childhood lead poisoning;
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0007|               C.  permit New Mexico to administer and enforce
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0008|     rules developed pursuant to Title 4 of the federal Toxic
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0009|     Substances Control Act rather than having the United States
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0010|     environmental protection agency administer and enforce the
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0011|     program in the state;
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0012|               D.  provide for certification of professionals
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0013|     conducting lead hazard activities in target housing,
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0014|     accreditation of training providers and development of work-
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0015|     practice standards for target housing; and
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0016|               E.  provide for reciprocity of certification and
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0017|     accreditation with other states.
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0018|          Section 3.  DEFINITIONS.--As used in the Lead Hazard Act:
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0019|               A.  "child" means a person less than six years of
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0020|     age;
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0021|               B.  "department" means the department of health;
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0022|               C.  "federal requirements" means:
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0023|                    (1)  Title 4 of the federal Toxic Substances
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0024|     Control Act and rules adopted by the environmental protection
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0025|     agency pursuant to that act as they relate to target housing;
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0001|     and
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0002|                    (2)  rules or requirements adopted by the
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0003|     department of housing and urban development regarding
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0004|     eligibility for grants to states and local governments;
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0005|               D.  "housing for the elderly" means retirement
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0006|     communities or housing reserved for households composed of one
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0007|     or more persons sixty-two years of age or older;
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0008|               E.  "interim control activity" means any measure or
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0009|     set of measures designed to temporarily reduce current or
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0010|     potential human exposure to a lead hazard;
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0011|               F.  "lead-based paint" means paint or other surface
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0012|     coatings that contain lead equal to or in excess of one
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0013|     milligram per square centimeter or one-half of one percent by
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0014|     weight;
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0015|               G.  "lead hazard" means a substance, surface or
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0016|     object that contains lead and that, due to its condition,
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0017|     location or nature, may contribute to human lead poisoning or
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0018|     lead exposure;
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0019|               H.  "lead hazard abatement" means any measure or
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0020|     set of measures designed to permanently eliminate a lead
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0021|     hazard, as specified under federal requirements;
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0022|               I.  "lead hazard activities" includes lead hazard
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0023|     identification, risk assessment, reduction and abatement in
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0024|     target housing;
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0025|               J.  "lead hazard identification" means the on-site
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0001|     inspection of target housing for the presence of actual or
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0002|     potential lead hazards;
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0003|               K.  "lead hazard reduction" means actions designed
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0004|     to minimize lead hazards in target housing, including lead
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0005|     hazard abatement and interim control activities;
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0006|               L.  "lead hazard risk assessment" means an on-site
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0007|     investigation of target housing to determine the existence,
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0008|     nature, severity and location of lead hazards;
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0009|               M.  "lead poisoning" or "lead exposure" means a
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0010|     confirmed concentration of lead in whole blood of a child of
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0011|     ten or more micrograms of lead per deciliter of whole blood;
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0012|               N.  "secretary" means the secretary of health;
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0013|               O.  "target housing" means:
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0014|                    (1)  housing constructed prior to 1978, except
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0015|     housing for the elderly or persons with disabilities unless
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0016|     one or more children reside or are expected to reside in such
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0017|     housing, and except for zero-bedroom dwellings;
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0018|                    (2)  a child-occupied facility, which is a
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0019|     residence or other building or portion of a building,
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0020|     constructed prior to 1978, visited regularly by the same child
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0021|     on at least two different days within the week, Sunday through
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0022|     Saturday, when each day's visit lasts at least three hours,
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0023|     the combined weekly visit lasts at least six hours and the
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0024|     combined annual visits last at least sixty hours.  Child-
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0025|     occupied facilities include daycare centers, preschools and
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0001|     kindergarten classrooms; or
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0002|                    (3)  all structures attached to target housing
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0003|     and the real property upon which target housing stands that
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0004|     may include a lead hazard; and
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0005|               P.  "zero-bedroom dwelling" means any residential
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0006|     dwelling in which the living area is not separated from the
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0007|     sleeping area, and includes efficiencies, studio apartments,
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0008|     dormitory housing, military barracks and rentals of individual
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0009|     rooms in residential dwellings.
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0010|          Section 4.  DEPARTMENT--POWERS AND DUTIES.--
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0011|               A.  The department is the designated state agency
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0012|     for implementation of federal requirements and shall develop
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0013|     and implement a lead hazard program that meets but is no more
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0014|     stringent than federal requirements.
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0015|               B.  The department shall:
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0016|                    (1)  establish a program for prevention of
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0017|     childhood lead poisoning through regulation of work practices
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0018|     for lead hazard identification, risk assessment, reduction and
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0019|     abatement in target housing;
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0020|                    (2)  adopt and promulgate rules that:
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0021|                         (a)  require certification of
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0022|     individuals and firms that offer to perform lead hazard
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0023|     activities in target housing;
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0024|                         (b)  set training requirements for
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0025|     individuals and firms directly and substantially involved in
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0001|     the performance of lead hazard activities in target housing;
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0002|                         (c)  establish accreditation standards
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0003|     for programs that train persons involved in lead hazard
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0004|     activities in target housing, including:  1) minimum
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0005|     requirements for the accreditation of training providers; 2)
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0006|     minimum training curriculum requirements; 3) minimum training
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0007|     hour requirements; 4) minimum hands-on training requirements;
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0008|     5) minimum trainee competency and proficiency requirements; 6)
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0009|     minimum requirements for training program quality control; and
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0010|     7) criteria and procedures for suspension, revocation and
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0011|     modification of accredited training programs;
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0012|                         (d)  establish standards for performing
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0013|     lead hazard activities in target housing, taking into account
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0014|     reliability, effectiveness and safety;
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0015|                         (e)  establish criteria and procedures
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0016|     for suspension and revocation of professional certification;
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0017|     and
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0018|                         (f)  provide for enforcement of the Lead
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0019|     Hazard Act and the rules adopted pursuant to that act;
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0020|                    (3)  dedicate suitable staff and acquire
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0021|     suitable space, equipment, supplies and other items necessary
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0022|     to carry out the provisions of the Lead Hazard Act and rules
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0023|     adopted pursuant to that act; and
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0024|                    (4)  apply for and expend available federal
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0025|     funds for lead hazard activities and implementation of the
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0001|     lead hazard program.
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0002|               C.  In order to carry out the purposes of the Lead
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0003|     Hazard Act and to ensure that lead hazard activities do not
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0004|     create additional health hazards, the department may:
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0005|                    (1)  with prior notification enter target
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0006|     housing where lead hazard activities are being conducted by a
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0007|     paid inspector or contractor for the purpose of monitoring the
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0008|     conduct of those lead hazard activities, at reasonable times
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0009|     and without undue delay;
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0010|                    (2)  enter and inspect the facilities of an
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0011|     individual or firm providing lead hazard activities training
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0012|     for the purpose of monitoring training activities and
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0013|     equipment, at reasonable times and without undue delay; and 
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0014|                    (3)  collect information from any individual
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0015|     involved in lead hazard activities or training about lead
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0016|     hazard activities.
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0017|               D.  The department may, depending on availability
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0018|     of funding:
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0019|                    (1)  collect and analyze data on the:
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0020|                         (a)  extent of lead-based paint hazards
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0021|     in New Mexico;
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0022|                         (b)  lead hazard activities in New
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0023|     Mexico; and
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0024|                         (c)  certification, accreditation and
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0025|     enforcement activities of the department; and
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0001|                    (2)  conduct public education programs on the
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0002|     nature and consequences of lead poisoning, the need for
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0003|     accredited training providers and the need for certified
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0004|     personnel for lead hazard activities.
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0005|          Section 5.  COMPLIANCE--ENFORCEMENT.--
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0006|               A.  Lead hazard activities shall be performed by
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0007|     certified personnel and shall comply with department rules
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0008|     adopted pursuant to the Lead Hazard Act.  Lead hazard training
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0009|     providers shall be accredited by the department and comply
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0010|     with department rules.
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0011|               B.  The department shall enforce the provisions of
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0012|     the Lead Hazard Act and rules adopted pursuant to that act by
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0013|     issuance of appropriate orders or decisions and through
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0014|     sanctions and penalties established by federal rules and state
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0015|     rules adopted pursuant to the Lead Hazard Act.  Penalties
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0016|     collected pursuant to this section shall be deposited in the
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0017|     general fund.
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0018|               C.  State enforcement rules shall make provision
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0019|     for:
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0020|                    (1)  inspections to determine compliance with
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0021|     rules and standards developed pursuant to the Lead Hazard Act; 
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0022|                    (2)  sampling techniques to determine
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0023|     compliance with rules and standards developed pursuant to the
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0024|     Lead Hazard Act; 
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0025|                    (3)  follow-up for complaints;
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0001|                    (4)  sanctions and penalties;
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0002|                    (5)  flexible remedies; and
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0003|                    (6)  compliance assistance.
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0004|          Section 6.  APPEAL.--
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0005|               A.  A person aggrieved by a sanction or penalty
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0006|     issued pursuant to the Lead Hazard Act or rules adopted
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0007|     pursuant to that act may appeal to the secretary within thirty
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0008|     days after receipt of notice of the sanction or penalty.  A
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0009|     hearing shall be held within sixty days on each appeal filed.
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0010|     The secretary shall appoint a hearing officer to hear the
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0011|     appeal and provide for due process.  The hearing officer shall
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0012|     report his findings to the secretary, who shall make the final
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0013|     decision.  The party may appeal the decision of the secretary
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0014|     to the district court.  An appeal to the district court shall
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0015|     be on the record.
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0016|               B.  While an appeal is pending, compliance with a
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0017|     sanction or penalty shall not be required unless the secretary
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0018|     determines by a separate finding that the violation was
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0019|     intentional or that there exists a hazardous condition that
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0020|     requires immediate compliance with the sanction or penalty so
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0021|     as to eliminate a public health hazard.
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0022|          Section 7.  RECIPROCITY.--The department may establish
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0023|     liaison with other states having lead hazard activities
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0024|     programs to assure maximum consistency of program requirements
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0025|     to facilitate reciprocity of certification and accreditation
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0001|     with other states.
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0002|          Section 8.  FUND CREATED--FEES.--
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0003|               A.  The "lead hazard fund" is created in the state
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0004|     treasury.  The fund shall consist of appropriations; lead
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0005|     hazard activities fees; and public or private grants, gifts
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0006|     and donations.  Money in the fund at the end of a fiscal year
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0007|     shall not revert to the general fund.  The fund shall be
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0008|     administered by the department, and money in the fund is
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0009|     appropriated to the department to carry out the provisions of
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0010|     the Lead Hazard Act and rules adopted pursuant to that act.
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0011|               B.  The department may collect reasonable fees for
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0012|     certification, accreditation and other reviews as may be
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0013|     necessary to carry out the provisions of the Lead Hazard Act
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0014|     and rules adopted pursuant to that act.
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0015|          Section 9.  EXPIRATION OF PROGRAM.--The lead hazard
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0016|     activities program established pursuant to the Lead Hazard Act
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0017|     shall expire on June 30, 2003, unless continued by the
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0018|     legislature.
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0019|          Section 10.  DELAYED REPEAL.--This act is repealed July
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0020|     1, 2003.
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0021|                              
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