AB806: Bill Text Engrossed

LRB-4761/1

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1999 - 2000 LEGISLATURE

Engrossed 1999 Assembly BILL 806

March 15, 2000 - Printed by direction of Senate Chief Clerk.

AB806-engrossed,2,2 An Act to repeal 254.17, 254.176 (3) (b) and 254.178 (2) (b); to renumber and amend 254.166 (2) (c); to amend 20.435 (1) (gm), 20.505 (1) (md), 254.15 (1), 254.154, 254.166 (1), 254.167 (intro.), 254.167 (1), 254.167 (2), 254.167 (3) and 254.174; to repeal and recreate 254.172; and to create 254.11 (4g), 254.11 (4h), 254.11 (5m), 254.11 (8d), 254.11 (8s), 254.11 (9g), 254.166 (2) (c) 2., 254.166 (2) (c) 3., 254.166 (2) (e), 254.171, 254.173, 254.179, 254.18, 254.181, 254.182 and 901.055 of the statutes; relating to: conducting lead investigations, lead-bearing paint hazard control, requirements for certification of lead-free or lead-safe status for dwellings and premises, immunity from liability for lead poisoning or lead exposure, a report on the affordability and availability of liability insurance for lead-bearing paint hazards, granting rule-making authority, requiring the exercise of rule-making authority and making appropriations.

Analysis by the Legislative Reference Bureau

Engrossment information:

The text of Engrossed 1999 Assembly Bill 806 consists of the following documents adopted in the assembly on March 9, 2000: Assembly Substitute Amendment 2, as affected by the following Assembly Amendments: Assembly Amendment 1 (as affected by Assembly Amendment 1 thereto). The text also includes the March 14, 2000, chief clerk's correction to Assembly Amendment 1 to Assembly Amendment 1 to the substitute amendment.

Content of Engrossed 1999 Assembly Bill 806:

Under current law, the department of health and family services (DHFS) must develop and implement a comprehensive statewide lead poisoning or lead exposure prevention and treatment program. Under this program, among other things, DHFS may promulgate rules establishing procedures for conducting lead inspections of dwellings and premises, governing lead hazard reduction, certifying persons who perform or supervise performance of lead hazard reduction or lead management activities and establishing requirements for accreditation of lead training courses and approval of lead instructors; the certification and accreditation rules must meet, but may not exceed, federal environmental protection agency requirements. Before promulgating all of these rules, DHFS must consult with a technical advisory committee that includes representatives from local health departments, the housing industry and medical or public health professions and persons who are certified to perform or supervise performance of lead hazard reduction or lead management activities. A city, village, town or other political subdivision may enact and enforce ordinances that establish systems of lead poisoning or lead exposure control with the same or higher standards than those specified under the program.

Currently, the governor is required to submit to the legislature a proposal to expend oil overcharge restitution funds disbursed by the federal government to this state.

With specified exceptions, this bill provides immunity from civil and criminal liability for lead poisoning or lead exposure to owners of dwellings or units of dwellings and their employes and agents and prohibits these persons from being subjected to administrative hearings (other than for the enforcement of DHFS rules) if, at the time that the poisoning or exposure occurred, a certificate of lead-free status or a certificate of lead-safe status was in effect for the dwelling or unit. This immunity also is provided for acts or omissions of owners, their employes and their agents related to lead poisoning or lead exposure that occur during the first 30 days after the owner acquires a dwelling or unit of a dwelling, unless the poisoning or exposure results from a lead-bearing paint hazard created by the owner, employe or agent. This temporary immunity is extended for an additional 60 days if the owner, employe or agent performs one of several specified actions during the first 30-day period and if, during the additional 60-day period, the owner obtains a certificate of lead-free or lead-safe status or if the owner shows by clear and convincing evidence that the property was in compliance by the end of the 90-day period with the standard to obtain the certificate and that the owner obtained the certificate in a reasonable amount of time. If the owner of a dwelling or unit of a dwelling receives written notice from DHFS or a local health department that a child under six years of age residing in the dwelling or unit has an elevated blood lead level (as defined in the bill), the owner must obtain a certificate of lead-free or lead-safe status in a timely manner, based on the reasonable availability of lead risk assessors or other certified persons to conduct necessary activities and on the time required for issuance of a certificate. A certificate obtained in this circumstance must be for at least 12 months' duration. The bill requires DHFS to promulgate rules that set the standards for issuance of a certificate of lead-free status or a certificate of lead-safe status, the procedures by which such a certificate may be issued or revoked and the period of validity of the certificate. Further, the bill specifies conditions that must be specified in the DHFS rules as to successive applications for certificates of lead-safe status for identical premises. DHFS must promulgate rules to create a registry of all premises, dwellings and units of dwellings for which a certificate of lead-free or lead-safe status is issued. Funds for operation of the registry are required to be obtained from fees for the issuance of the certificates. DHFS is authorized to impose a fee of $50 for the issuance of a certificate of lead-free status and a fee of $25 for the issuance of a certificate of lead-safe status and must review the fees every two years. DHFS also must, at least quarterly, notify a local health department concerning the issuance of certificates of lead-free or lead-safe status in the area of jurisdiction of the local health department. DHFS also must promulgate rules that specify the requirements for a course of up to 16 hours that a property owner or his or her agent may complete in order to receive certification and the scope of activities that the owner or agent may perform following certification, consistent with federal law. DHFS must review all of these required rules, beginning on January 1, 2003, and every two years thereafter and promulgate changes if necessary to maintain consistency with federal law. DHFS may promulgate rules setting forth safe work practices for demolition of buildings constructed before January 1, 1978.

The bill changes rules requirements to require that lead investigations, rather than lead inspections, of dwellings and premises be conducted; in addition, the bill requires that, if DHFS is notified that a child under six years of age who is an occupant of a dwelling or premises has an elevated blood lead level, DHFS conduct a lead investigation or ensure that a lead investigation is conducted. DHFS also must notify the occupant of the dwelling or premises or his or her representative of the results of any lead investigations conducted on or in the dwelling or premises and any actions taken to reduce or eliminate the lead hazard. A certified lead risk assessor who conducts a lead investigation of a dwelling or premises must conduct the investigation and issue a report in accordance with DHFS rules and, if the report indicates that the dwelling or premises meets criteria for the issuance of a certificate of lead-free or lead-safe status, issue the appropriate certificate. DHFS is authorized to promulgate rules governing lead hazard reduction that DHFS determines are consistent with federal law; this authorization replaces the previous authorization to promulgate numerous rules concerning lead hazard reduction.

The bill eliminates authorization for DHFS to promulgate rules requiring that, after June 30, 1997, owners or operators of rental or leased dwellings or premises have a lead inspection, if any part of the dwelling or premises was constructed before January 1, 1978, and if DHFS determines that the dwellings or premises are likely to contain lead hazards. The bill also eliminates the requirements that certification and accreditation rules meet, but not exceed, federal environmental protection agency requirements.

The bill changes provisions relating to enactment and enforcement of municipal ordinances on lead poisoning or lead exposure control to specify that only the immunity and temporary immunity provisions for owners of dwellings or units of dwellings, as created in the bill, impair the right of a person or entity to sue for damages or equitable relief and that no limitations exist on the right of a municipality to impose a penalty for or restrain the violation of its ordinance on lead poisoning or lead exposure.

The bill authorizes DHFS to request a one-time supplement of general purpose revenues from the joint committee on finance (JCF) to pay initial costs of establishing the registry of properties that are issued certificates of lead-free status or certificates of lead-safe status. If DHFS requests the supplement, DHFS must submit a plan to JCF to expend not more than $520,000 for fiscal year 2000-01. In addition, the bill provides for a one-time increase of $215,000 in general purpose revenues to increase DHFS staff, for performance of certification for the performance of lead paint hazard reduction. When moneys received from the imposition of fees for the issuance of certificates of lead-free status and lead-safe status are sufficient, the secretary of administration must transfer to the general fund $735,000 from the appropriation account into which the fees have been deposited.

The bill requires the office of the commissioner of insurance (OCI) to review the cost and availability of insurance in the private market that insures residential property against liability resulting from lead-bearing paint hazards and to submit a report to the appropriate standing committees of the legislature on whether such insurance is sufficiently available and affordable in the private market. If OCI determines that the insurance is not sufficiently available or affordable, OCI must submit proposed legislation creating a state residential lead liability fund in its 2003-05 biennial budget request, as well as drafting instructions to the legislative reference bureau for the proposed legislation.

The bill provides that any proposal submitted by the governor to the legislature to expend oil overcharge funds must provide for the expenditure of all available funds for reduction of lead paint hazards in dwellings to allow for and in conjunction with energy conservation activities in rental properties owned by persons seeking certificates of lead-free or lead-safe status.

Lastly, the bill expands the membership of the technical advisory committee with which DHFS must consult before promulgating certain rules relating to lead hazard control, to include advocates for persons at risk of lead poisoning and a resident of a first class city.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB806-engrossed, s. 1 Section 1. 20.435 (1) (gm) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

AB806-engrossed,5,12 20.435 (1) (gm) Licensing, review and certifying activities; fees; supplies and services. The amounts in the schedule for the purposes specified in ss. 146.50 (8), 250.05 (6), 252.23, 252.24, 252.245, 254.176, 254.178, 254.179 (1) (d), 254.20 (5) and (8), 254.31 to 254.39, 254.41, 254.47, 254.61 to 254.89 and 255.08 (2) and ch. 69, for the purchase and distribution of medical supplies and to analyze and provide data under s. 250.04. All moneys received under ss. 146.50 (5) (f), (8) (d), 250.04 (3m), 250.05 (6), 252.23 (4) (a), 252.24 (4) (a), 252.245 (9), 254.176, 254.178, 254.181, 254.20 (5) and (8), 254.31 to 254.39, 254.41, 254.47, 254.61 to 254.89 and 255.08 (2) (b) and ch. 69 and as reimbursement for medical supplies shall be credited to this appropriation account.

AB806-engrossed, s. 2 Section 2. 20.505 (1) (md) of the statutes is amended to read:

AB806-engrossed,5,18 20.505 (1) (md) Oil overcharge restitution funds. All federal moneys received as oil overcharge funds, as defined in s. 14.065 (1), for expenditure under proposals approved by the joint committee on finance under s. 14.065 and, for transfers under 1993 Wisconsin Act 16, section 9201 (1z), and for allocation under 1999 Wisconsin Act .... (this act), section 32 (7).

AB806-engrossed, s. 3 Section 3. 254.11 (4g) of the statutes is created to read:

AB806-engrossed,6,2 254.11 (4g) "Certificate of lead-free status" means a certificate issued by a certified lead risk assessor or other person certified under s. 254.176 that documents a finding by the assessor that a premises, dwelling or unit of a dwelling is free of lead-bearing paint as of the date specified on the certificate.

AB806-engrossed, s. 4 Section 4. 254.11 (4h) of the statutes is created to read:

AB806-engrossed,6,7 254.11 (4h) "Certificate of lead-safe status" means a certificate issued by a certified lead risk assessor or other person certified under s. 254.176 that documents that the assessor detected no lead-bearing paint hazards affecting the premises, dwelling or unit of the dwelling on the date specified on the certificate.

AB806-engrossed, s. 5 Section 5. 254.11 (5m) of the statutes is created to read:

AB806-engrossed,6,10 254.11 (5m) "Elevated blood lead level" means a level of lead in blood that is any of the following:

AB806-engrossed,6,12 (a) Twenty or more micrograms per 100 milliliters of blood, as confirmed by one venous blood test.

AB806-engrossed,6,14 (b) Fifteen or more micrograms per 100 milliliters of blood, as confirmed by 2 venous blood tests that are performed at least 90 days apart.

AB806-engrossed, s. 6 Section 6. 254.11 (8d) of the statutes is created to read:

AB806-engrossed,6,17 254.11 (8d) "Lead-bearing paint hazard" has the meaning specified by rule by the department.

AB806-engrossed, s. 7 Section 7. 254.11 (8s) of the statutes is created to read:

AB806-engrossed,6,21 254.11 (8s) "Lead investigation" means a measure or set of measures designed to identify the presence of lead or lead hazards, including examination of painted or varnished surfaces, paint, dust, water and other environmental media.

AB806-engrossed, s. 8 Section 8. 254.11 (9g) of the statutes is created to read:

AB806-engrossed,6,24 254.11 (9g) "Lead risk assessor" has the meaning specified by rule by the department.

AB806-engrossed, s. 9 Section 9. 254.15 (1) of the statutes is amended to read:

AB806-engrossed,7,14 254.15 (1) Develop and implement a comprehensive statewide lead poisoning or lead exposure prevention and treatment program that includes lead poisoning or lead exposure prevention grants under s. 254.151; any childhood lead poisoning screening requirement under rules promulgated under ss. 254.158 and 254.162; any requirements regarding care coordination and follow-up for children with lead poisoning or lead exposure required under rules promulgated under s. 254.164; departmental responses to reports of lead poisoning or lead exposure under s. 254.166; any lead inspection investigation requirements under rules promulgated under ss. 254.167,; any lead inspection requirements under rules promulgated under 254.168 and 254.17; any lead hazard reduction requirements under rules promulgated under s. 254.172; and certification, accreditation and approval requirements under ss. 254.176 and 254.178; any certification requirements and procedures under rules promulgated under s. 254.179; and any fees imposed under s. 254.181.

AB806-engrossed, s. 10 Section 10. 254.154 of the statutes is amended to read:

AB806-engrossed,7,25 254.154 This subchapter does not prohibit any city, village, town or other political subdivision from enacting and enforcing ordinances establishing a system of lead poisoning or lead exposure control that provides the same or higher standards than those set forth in this subchapter. Nothing in this subchapter other than s. 254.173 (2) and (3) may be interpreted or applied in any manner to impair the right of any person, or entity, municipality or other political subdivision to sue for damages or equitable relief or to restrain a violation of such an ordinance. Nothing in this subchapter may be interpreted or applied in any manner to impair the right of a municipality or other political subdivision to impose a penalty for or restrain the violation of an ordinance specified in this section.

AB806-engrossed, s. 11 Section 11. 254.166 (1) of the statutes is amended to read:

AB806-engrossed,8,24 254.166 (1) The department may, after being notified that an occupant of a dwelling or premises who is under 6 years of age has blood lead poisoning or lead exposure, present official credentials to the owner or occupant of the dwelling or premises, or to a representative of the owner, and request admission to conduct a lead inspection investigation of the dwelling or premises. If the department is notified that an occupant of a dwelling or premises who is a child under 6 years of age has an elevated blood lead level, the department shall conduct a lead investigation of the dwelling or premises or ensure that a lead investigation of the dwelling or premises is conducted. The lead inspection investigation shall be conducted during business hours, unless the owner or occupant of the dwelling or premises consents to an inspection investigation during nonbusiness hours or unless the department determines that the dwelling or premises presents an imminent lead hazard. The department shall use reasonable efforts to provide prior notice of the lead inspection investigation to the owner of the dwelling or premises. The department may remove samples or objects necessary for laboratory analysis to determine the presence of a lead hazard in the dwelling or premises. The department shall prepare and file written reports of all inspections lead investigations conducted under this section and shall make the contents of these reports available for inspection by the public, except for medical information, which may be disclosed only to the extent that patient health care records may be disclosed under ss. 146.82 to 146.835. If the owner or occupant refuses admission, the department may seek a warrant to inspect investigate the dwelling or premises. The warrant shall advise the owner or occupant of the scope of the inspection lead investigation.

AB806-engrossed, s. 12 Section 12. 254.166 (2) (c) of the statutes is renumbered 254.166 (2) (c) (intro.) and amended to read:

AB806-engrossed,9,4 254.166 (2) (c) (intro.) Notify the occupant of the dwelling or premises or that person's the occupant's representative that of all of the following:

AB806-engrossed,9,6 1. That a lead hazard is present on or in the dwelling or premises and may constitute a health hazard.

AB806-engrossed, s. 13 Section 13. 254.166 (2) (c) 2. of the statutes is created to read: