Title of Regulation: 18VAC15-30. Virginia Lead-Based Paint Activities Regulations (amending 18VAC15-30-52, 18VAC15-30-164, 18VAC15-30-166, 18VAC15-30-790, 18VAC15-30-810).

Statutory Authority: §§ 54.1-201 and 54.1-501 of the Code of Virginia.

Public Hearing Information:

September 24, 2013 - 10 a.m. - Department of Professional and Occupational Regulation, 9960 Mayland Drive, Suite 200, Board Room 1, Richmond, VA

Public Comment Deadline: October 25, 2013.

Agency Contact: Trisha Henshaw, Executive Director, Virginia Board for Asbestos, Lead, and Home Inspectors, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8595, FAX (866) 350-5354, or email alhi@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia provides general authority to the board to promulgate regulations in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) necessary to assure continued competency, to prevent deceptive or misleading practices by practitioners, and to effectively administer the regulatory system.

Section 54.1-501 of the Code of Virginia requires the board to promulgate regulations, including but not limited to the prescription of fees, procedures, and qualifications for the issuance and renewal of lead program licenses.

Purpose: The board intends to amend its lead-based paint activities regulations to remove the requirement that the lead license expiration date corresponds with the lead training expiration date. The current result is that the expiration dates of lead licenses may vary from one license cycle to another causing confusion among the regulant population. Most licenses issued under the Department of Professional and Occupational Regulation (DPOR) have a license cycle of one or two years and the expiration date is the last day of the month in which the license was issued. Amending these regulations will allow the lead program license cycle to be consistent with other programs housed under DPOR, which will in turn lessen the confusion among the regulant population, resulting in a benefit to the public welfare.

Substance: A subsection is added to 18VAC15-30-52 and 18VAC15-30-790 to address the training requirement as a qualification for licensure. The amendments also modify the specific entry requirements for each discipline to refer to the newly created subsection.

18VAC15-30-164 is amended by removing the connection between the license expiration date and the training expiration date.

Amendments to 18VAC15-30-166 (i) emphasize the valid time period for training and explain that the training must be discipline specific, (ii) state the consequences of not completing training on time or not taking the proper training for the license discipline, and (iii) amend the requirement that accredited training providers certify their continued compliance with the Virginia regulations every 24 months instead of 48 months to make the regulation consistent with how often providers actually certify their continued compliance.

A subsection is added to 18VAC15-30-810 that states that a regulant failing to keep his license and training current is grounds for denial of an application, denial of renewal, or discipline.

Issues: The primary advantage to the public is that regulants should better understand that they must keep their training valid in addition to their license. Whereas the license proves minimum competency, the required training teaches the standards for conducting lead-based paint activities as described in 18VAC15-30 and the standards adopted by the U.S. Environmental Protection Agency. A properly trained regulant population would benefit the general public. No disadvantage has been identified.

The primary advantage to DPOR and the Commonwealth is an amended regulation that can be administered effectively and is anticipated to provide a reasonable level of public protection with a minimum intrusion into the conduct of commerce. No disadvantage has been identified.

The primary advantage to the regulated community and government officials is that training requirements are clarified. No disadvantage has been identified.

Summary:

The proposed amendments (i) clarify training requirements upon entry and renewal of an individual or training provider license, (ii) remove the requirement that the lead license expiration date corresponds with the lead training expiration date, and (iii) change the time frame that accredited lead training providers must certify continued compliance to 24 months.

18VAC15-30-52. Qualifications for licensure - individuals.

A. General. Applicants shall meet all applicable entry requirements at the time application is made.

B. Name. The applicant shall disclose his full legal name.

C. Age. The applicant shall be at least 18 years old.

D. Address. The applicant shall disclose a physical address. A post office box is only acceptable when a physical address is also provided.

E. Training. The applicant shall provide documentation of having satisfactorily completed the board-approved initial training program and all subsequent board-approved refresher training programs as specified in subsection F of this section. Board-approved initial training programs shall be valid for 36 months after the last day of the month wherein completed. Board-approved refresher training programs shall be satisfactorily completed no later than 36 months after the last day of the month wherein the board-approved initial training program was completed and once each 36 months thereafter.

E. F. Specific entry requirements.

1. Worker. Each applicant for a lead abatement worker licensure license shall provide evidence of successful completion of a board-approved initial lead abatement worker course training in accordance with subsection E of this section.

2. Project designer.

a. Each applicant for a lead project designer licensure license shall provide evidence of successful completion of a board-approved initial lead project designer course and successful completion of a board-approved initial lead abatement supervisor course and one of the following: training and board-approved lead abatement supervisor training in accordance with subsection E of this section.

b. Each applicant for a lead project designer license shall also provide evidence of successful completion of one of the following:

a. (1) A bachelor's degree in engineering, architecture, or a related profession, and one year experience in building construction and design or a related field; or

b. (2) Four years of experience in building construction and design or a related field.

3. Supervisor.

a. Each applicant for a lead abatement supervisor licensure license shall provide evidence of:

(1) Successful completion of a board-approved initial lead abatement supervisor course training in accordance with subsection E of this section; and

(2) One year experience as a licensed lead abatement worker or two years experience in a related field (e.g., lead, asbestos or environmental remediation) or in the building trades.

b. Each applicant shall pass a board-approved licensing examination for supervisors within 36 months after completion of the board-approved lead abatement supervisor initial training course or the board-approved lead supervisor refresher course. Applicants who fail the examination three times must provide to the board evidence, after the date of their third examination failure, of having retaken and satisfactorily completed the initial training requirements and make new application to the board. The applicant is then eligible to sit for the examination an additional three times.

c. A licensed lead abatement supervisor may perform the duties of a licensed lead abatement worker.

4. Inspector.

a. Each applicant for a lead inspector licensure license shall provide evidence of successful completion of a board-approved initial lead inspector course training in accordance with subsection E of this section.

b. Each applicant shall pass a board-approved licensing examination for lead inspector within 36 months after completion of the board-approved lead inspector initial training course or the board-approved lead inspector refresher course. Applicants who fail the examination three times must provide to the board evidence, after the date of their third examination failure, of having retaken and satisfactorily completed the initial training requirements and make new application to the board. The applicant is then eligible to sit for the examination an additional three times.

5. Risk assessor.

a. Each applicant for a lead risk assessor licensure license shall provide evidence of successful completion of a board-approved initial lead risk assessor training course and successful completion of a board-approved initial lead inspector training course that was at least three days in length and one of the following: in accordance with subsection E of this section.

b. Each applicant for a lead risk assessor license shall also provide evidence of successful completion of one of the following:

(1) Certification or licensure as an industrial hygienist, a professional engineer, a registered architect or licensure in a related engineering/health/environmental field;

(2) A bachelor's degree and one year of experience in a related field (e.g., lead, asbestos, environmental remediation work, or construction);

(3) An associate's degree and two years experience in a related field (e.g., lead, asbestos, environmental remediation work, or construction); or

(4) A high school diploma or its equivalent, and at least three years experience in a related field (e.g., lead, asbestos, environmental remediation work, or construction).

b. c. Each applicant shall pass a board-approved licensure examination for risk assessor within 36 months after completion of the board-approved lead risk assessor initial training course or the board-approved lead risk assessor refresher course. Applicants who fail the examination three times must provide to the board evidence, after the date of their third examination failure, of having retaken and satisfactorily completed the initial training requirements and make new application to the board. The applicant is then eligible to sit for the examination an additional three times.

F. G. Training verification. Training requirements shall be verified by submittal to the board of the training certificate issued by the accredited lead training provider for that course.

G. H. Education verification. Education requirements shall be verified by submittal to the board on the Education Verification Form sent directly from the school.

H. I. Experience verification. Experience requirements shall be verified by resumes, letters of reference, or documentation of work experience.

I. J. Conviction or guilt. The applicant shall disclose the following information:

1. A conviction in any jurisdiction of any felony.

2. A conviction in any jurisdiction of any misdemeanor.

3. Any disciplinary action taken in another jurisdiction in connection with the applicant's environmental remediation practice including, but not limited to, monetary penalties, fines, suspension, revocation, or surrender of a license in connection with a disciplinary action.

4. Any current or previously held environmental remediation certifications, accreditations or licenses issued by Virginia or any other jurisdiction.

Subject to the provisions of § 54.1-204 of the Code of Virginia, the board may deny any application for licensure or accreditation as a lead training provider when any of the parties listed in this subsection have been convicted of any offense listed in this subsection or has been the subject of any disciplinary action listed in subdivision 3 of this subsection. Any plea of nolo contendere shall be considered a conviction for the purposes of this subsection. A certified copy of a final order, decree or case decision by a court or regulatory agency with the lawful authority to issue such order shall be admissible as prima facie evidence of such conviction or discipline.

J. K. Standards of conduct and practice. Applicants shall be in compliance with the standards of conduct and practice set forth in Part VIII (18VAC15-30-510 et seq.) of this chapter at the time of application to the board, while the application is under review by the board, and at all times when the license is in effect.

K. L. Standing. The applicant shall be in good standing in every jurisdiction where licensed and the applicant shall not have had a license that was suspended, revoked or surrendered in connection with any disciplinary action in any jurisdiction prior to applying for licensure in Virginia. The board, at its discretion, may deny licensure or approval to any applicant based on disciplinary action by any jurisdiction.

Part V
Renewal

18VAC15-30-164. Renewal required.

A. Interim licenses shall expire six months from the last day of the month during which the individual completed the board-approved initial or refresher accredited lead training program required by 18VAC15-30-52 regardless of the date on which the board received the application for initial licensure or the date the board issued the license.

B. Interim licenses shall not be renewed or extended.

C. Individual licenses shall expire 12 months from the last day of the month wherein the individual completed the initial training program or refresher training program required by 18VAC15-30-52 regardless of the date on which the board received the application for individual licensure or the date the board issued the license. In no case shall an individual license expire later than the last day of the month which is 36 months after the date the individual completed the initial training program or most recent refresher training program.

D. Contractor licenses shall expire 12 months from the last day of the month wherein issued.

E. Accredited lead training programs approval shall expire 24 months from the last day of the month in which the board granted approval.

18VAC15-30-166. Qualifications for renewal.

A. Individuals.

1. Licensees desiring to maintain an individual license shall satisfactorily complete the required board-approved refresher training program established by this chapter and assure that the board receives documentation of satisfactory completion no later than the last day of the month that is 36 months after the date of completion of the initial training program or refresher training program and not less often than once each course within 36 months after the date that the initial or most recent refresher training course was completed and at least once every 36 months thereafter. In the case of a proficiency-based course completion, refresher training is required every 60 months instead of 36 months.

2. Licensees are responsible for ensuring that the board receives proof of completion of the required board-approved training. Prior to the expiration date shown on the individual's current license, the individual desiring to renew that license shall provide evidence of meeting the board-approved refresher training requirement for license renewal.

3. Refresher training shall be specific to the discipline of the license being renewed.

2. 4. The board shall renew an individual license for an additional 12 months upon receipt of a renewal application and fee in compliance with 18VAC15-30-163 and 18VAC15-30-165, provided that the licensee has complied with subdivision subdivisions 1 through 3 of this subsection. In no case shall an individual license expire later than the last day of the month that is 36 months, or in the case of proficiency-based course 60 months, after the initial training program or most recent refresher training program was completed.

B. Contractors. The board shall renew a contractor license for an additional 12 months upon receipt of a renewal application and the renewal fee in compliance with 18VAC15-30-163 and 18VAC15-30-165. Return of the renewal application and renewal fee to the board shall constitute a certification that the licensee is in full compliance with the board's regulations.

C. Accredited training programs.

1. Accredited lead training providers desiring to maintain approval of their accredited lead training program shall cause the board to receive the following no later than 48 24 months after the date of initial approval and not less often than once each 48 24 months thereafter:

a. The training provider's name, address, and telephone number.

b. A statement signed by the training program manager that certifies that:

(1) The course materials for each course meet the requirements of Part VII (18VAC15-30-440 et seq.) of this chapter.

(2) The training manager and principal instructors meet the qualifications listed in 18VAC15-30-340.

(3) The training program manager complies at all times with all requirements of this chapter.

(4) The quality control program meets the requirements noted in 18VAC15-30-410.

(5) The recordkeeping requirements of this chapter will be followed.

2. Return of the renewal application and renewal fee to the board shall constitute a certification that the accredited lead training provider is in full compliance with the board's regulations.

3. An audit by a board representative may be performed to verify the certified statements and the contents of the application before relicensure is granted.

4. Accredited lead training programs determined by the board to have met the renewal requirements shall be issued an approval for an additional 24 months.

18VAC15-30-790. Professional responsibility.

A. The licensee or accredited lead training provider shall, upon request or demand, produce to the board, or any of its representatives, any plan, document, book, record or copy thereof in his possession concerning a transaction covered by this chapter, and shall cooperate in the investigation of a complaint filed with the board against a licensee or accredited lead training provider.

B. A licensee shall not use the design, plans, or work of another licensee with the same type of license without the original's knowledge and consent, and after consent, a thorough review to the extent that full responsibility shall be assumed by the user.

C. Accredited lead training providers shall admit board representatives for the purpose of conducting an on-site audit, or any other purpose necessary to evaluate compliance with this chapter and other applicable laws and regulations.

D. Each licensee shall keep his board-approved training and license current.

18VAC15-30-810. Grounds for denial of application, denial of renewal, or discipline.

A. The board shall have the authority to fine any licensee or accredited lead training provider, training manager or principal instructor, and to deny renewal, to suspend, to revoke or to deny application for any license or approval as an accredited lead training program, accredited lead training provider, training manager or principal instructor provided for under Chapter 5 of Title 54.1 of the Code of Virginia for:

1. Violating or inducing another person to violate any of the provisions of Chapter 1, 2, 3, or 5 of Title 54.1 of the Code of Virginia, or any of the provisions of this chapter.

2. Obtaining a license, approval as an accredited lead training program, approval as an accredited lead training provider or approval as a training manager or principal instructor through fraudulent means.

3. Altering, falsifying or issuing a fraudulent Virginia lead license or a training certificate issued by an accredited lead training provider.

4. Violating any provision of any federal or state regulation pertinent to lead-based paint activities.

5. Having been found guilty by the board, another regulatory authority, or by a court, of any misrepresentation in the course of performing his operating duties.

6. Subject to the provisions of § 54.1-204 of the Code of Virginia, having been convicted or found guilty, regardless of adjudication in any jurisdiction of the United States, of any felony or of any misdemeanor involving lying, cheating, or stealing, or of any violation while engaged in environmental remediation activity that resulted in the significant harm or the imminent and substantial threat of significant harm to human health or the environment, there being no appeal pending therefrom or the time for appeal having elapsed. Any plea of nolo contendere shall be considered a conviction for the purposes of this chapter. A certified copy of the final order, decree or case decision by a court or regulatory agency with lawful authority to issue such order, decree or case decision shall be admissible as prima facie evidence of such conviction or discipline.

7. Failing to notify the board in writing within 30 days of pleading guilty or nolo contendere or being convicted or found guilty of any felony or of any misdemeanor involving lying, cheating, or stealing or of any violation while engaged in environmental remediation activity that resulted in the significant harm or the imminent threat of significant harm to human health or the environment.

8. Negligence, or a continued pattern of incompetence, in the practice of the discipline in which a lead license is held.

9. Failing or neglecting to send any information or documentation that was requested by the board or its representatives.

10. Refusing to allow state or federal representatives access to any area of an abatement site for the purpose of lawful compliance inspections.

11. Any unlawful act or violation of any provision of Chapter 5 of Title 54.1 of the Code of Virginia or of the regulations of the board by any lead abatement supervisor or lead abatement worker may be cause for disciplinary action against the lead abatement contractor for whom he works if it appears to the satisfaction of the board that the lead abatement contractor knew or should have known of the unlawful act or violation.

12. Failing to notify the board in writing within 30 days after any change in address or name.

13. Acting as or being an ostensible licensee for undisclosed persons who do or will control or direct, directly or indirectly, the operations of the licensee's business.

14. Failing to keep board-approved training and license current.

B. Any individual or firm whose license, approval as an accredited lead training program, approval as an accredited lead training provider or approval as a training manager or principal instructor is revoked under this section shall not be eligible to reapply for a period of one year from the effective date of the final order of revocation. The individual or firm shall meet all education, experience, and training requirements, complete the application, and submit the required fee for consideration as a new applicant.

C. The board shall conduct disciplinary procedures in accordance with §§ 2.2-4019 and 2.2-4021 of the Administrative Process Act.