AB806: Bill Text

Analysis by the Legislative Reference Bureau

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 these rules, DHFS must consult with a technical advisory committee that includes representatives from local health departments, the housing industry, 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.

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 if, at the time 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 related to lead poisoning or lead exposure of owners, their employes and agents that occur during the first 90 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. 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 promptly obtain a certificate of lead-free or lead-safe status. 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 certificates. Further, 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 issuance of the certificates. DHFS also must promulgate rules that specify the requirements for a course 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, that are preliminary to activities and standards required to obtain a certificate of lead-free or lead-safe status. 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. However, DHFS may waive this requirement in a city of the 1st class (Milwaukee). 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 issuance of a certificate of lead-free or lead-safe status, issue the appropriate certificate. DHFS may promulgate rules governing lead hazard reduction that DHFS determines are not preempted by federal law.

The bill creates, in the office of the commissioner of insurance, a state residential lead liability fund to issue policies that insure residential property against liability resulting from lead-bearing paint hazards if a certificate of lead-free status or a certificate of lead-safe status is in effect for the property. Policies must be issued by the fund if the fund "manager" (defined in current law as the commissioner of insurance) makes a determination, by rule, that this liability coverage is not sufficiently affordable or sufficiently available in the private insurance market. The state residential lead liability fund terminates if, after eight years, the manager has not made this determination.

The bill eliminates authorization for DHFS to promulgate rules requiring that, after June 30, 1997, owners or operators of rental or leased dwelling 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 specifies that the statutes relating to lead poisoning or lead exposure treatment and prevention may not be interpreted to supersede ordinances of Milwaukee that relate to the liability of an owner of property with respect to a lead-based paint hazard. Further, if the criteria specified in Milwaukee ordinances that relate the achieving a lead-free or lead-safe status are the same as or higher than the standards promulgated by DHFS by rule, the owner of a dwelling, unit or premises that meets the ordinance criteria is subject to the ordinances, rather than to the rules and is entitled to receive a certificate of lead-free status or a certificate of lead-safe status.

The bill authorizes DHFS to request a supplement of general purpose revenues from the joint committee on finance (JCF) to pay initial costs of establishing a 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 an increase in general program revenues to increase DHFS staff, for performance of certification for the performance of lead paint hazard reduction.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

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

AB806,4,12 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, 254.18, 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, s. 2 Section 2. 254.11 (4g) of the statutes is created to read:

AB806,4,17 254.11 (4g) "Certificate of lead-free status" means a certificate issued by a certified lead risk assessor 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, s. 3 Section 3. 254.11 (4h) of the statutes is created to read:

AB806,5,2 254.11 (4h) "Certificate of lead-safe status" means a certificate issued by a certified lead risk assessor 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, s. 4 Section 4. 254.11 (5m) of the statutes is created to read:

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

AB806,5,7 (a) Twenty or more micrograms per 100 milliliters of blood, as confirmed by one venous blood test.

AB806,5,9 (b) Fifteen or more micrograms per 100 milliliters of blood, as confirmed by 2 consecutive venous blood tests that are performed at least 90 days apart.

AB806, s. 5 Section 5. 254.11 (8d) of the statutes is created to read:

AB806,5,12 254.11 (8d) "Lead-bearing paint hazard" has the meaning specified by rule by the department.

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

AB806,5,16 254.11 (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, s. 7 Section 7. 254.11 (9g) of the statutes is created to read:

AB806,5,19 254.11 (9g) "Lead risk assessor" has the meaning specified by rule by the department.

AB806, s. 8 Section 8. 254.15 (1) of the statutes is amended to read:

AB806,6,9 254.15 (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. 254.18.

AB806, s. 9 Section 9. 254.154 of the statutes is renumbered 254.154 (1) and amended to read:

AB806,6,20 254.154 (1) 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 may be interpreted to supersede ordinances of a city of the first class that relate to the liability of an owner of property with respect to a lead-based paint hazard. Nothing in this subchapter may be interpreted or applied in any manner to impair the right of any person, entity, municipality or other political subdivision to sue for damages or equitable relief or to restrain a violation of such an ordinance.

AB806, s. 10 Section 10. 254.154 (2) of the statutes is created to read:

AB806,7,5 254.154 (2) If the criteria specified in ordinances of a city of the first class that relate to achieving a lead-free or lead-safe status are the same as or higher than the standards promulgated as rules under s. 254.179 (1) (a), the owner of a dwelling, unit of a dwelling or premises that meets the criteria specified in the ordinances is subject to the ordinances, rather than the rules under s. 254.179 (1) (a) and is entitled to receive a certificate of lead-free status or a certificate of lead-safe status, as appropriate, under this subchapter. If issued, the certificate of lead-free status and the certificate of lead-safe status are subject to this subchapter and rules promulgated under this subchapter.

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

AB806,8,5 254.166 (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, except that the department may waive this requirement in a city of the first class. 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, s. 12 Section 12. 254.166 (2) (c) of the statutes is renumbered 254.166 (2) (c) (intro.) and amended to read:

AB806,8,9 254.166 (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:

AB806,8,11 1. That a lead hazard is present on or in the dwelling or premises and may constitute a health hazard.

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

AB806,8,14 254.166 (2) (c) 2. The results of any lead investigations conducted on or in the dwelling or premises.

AB806, s. 14 Section 14. 254.166 (2) (c) 3. of the statutes is created to read:

AB806,8,16 254.166 (2) (c) 3. Any actions taken to reduce or eliminate the lead hazard.

AB806, s. 15 Section 15. 254.166 (2) (e) of the statutes is created to read:

AB806,8,20 254.166 (2) (e) If an order is issued under par. (d), conduct or require a certified lead risk assessor to conduct a lead investigation, a check of work completed and dust tests for the presence of hazardous levels of lead to ensure compliance with the order.

AB806, s. 16 Section 16. 254.167 (intro.) of the statutes is amended to read:

AB806,9,4 254.167 Conduct of lead inspection investigation. (intro.) Subject to the limitation under s. 254.174, the department may promulgate rules establishing procedures for conducting lead inspections investigations of dwellings and premises. Any rules promulgated under this section shall meet, but not exceed, any requirements under regulations promulgated by the administrator of the federal environmental protection agency under section 402 of the federal toxic substances control act, as created by section 1021 of P.L. 102-550. The rules promulgated under this section may include the following:

AB806, s. 17 Section 17. 254.167 (1) of the statutes is amended to read:

AB806,9,8 254.167 (1) Specific procedures for inspecting investigating, testing or sampling painted, varnished or other finished surfaces, drinking water, household dust, soil and other materials that may contain lead.

AB806, s. 18 Section 18. 254.167 (2) of the statutes is amended to read:

AB806,9,14 254.167 (2) Specific procedures for the notification of owners, operators, occupants or prospective occupants, mortgagees and lienholders of lead levels identified during an inspection a lead investigation and of any health risks that are associated with the lead level and condition of the lead found during the inspection lead investigation.

AB806, s. 19 Section 19. 254.167 (3) of the statutes is amended to read:

AB806,9,18 254.167 (3) The form of lead inspection investigation reports, the requirements for filing the reports with the department and the procedures by which members of the public may obtain copies of inspection lead investigation reports.

AB806, s. 20 Section 20. 254.17 of the statutes is repealed.

AB806, s. 21 Section 21. 254.171 of the statutes is created to read:

AB806,9,25 254.171 Dwellings and units of dwellings where child has elevated blood lead level. If an owner of a dwelling or unit of a dwelling receives written notice from the department or a local health department that a child under 6 years of age, who resides in the owner's owner-occupied dwelling or unit or who resides in the owner's dwelling or unit under the terms of a rental agreement, has an elevated blood lead level, the owner shall promptly obtain a certificate of lead-free status or certificate of lead-safe status for the affected dwelling or unit. Nothing in this section precludes the department or the department's agent from conducting a lead investigation or issuing an order under s. 254.166.

AB806, s. 22 Section 22. 254.172 of the statutes is repealed and recreated to read:

AB806,10,9 254.172 Prevention and control of lead-bearing paint hazards in dwellings and premises. (1) Subject to the limitation under s. 254.174, the department may promulgate rules governing lead hazard reduction that the department determines are not preempted by federal law.

AB806,10,15 (2) If a certified lead risk assessor conducts a lead investigation of a dwelling or premises, he or she shall conduct the lead investigation and issue a report in accordance with any rules promulgated under s. 254.167. If the report indicates that the dwelling or premises meets criteria under s. 254.179 (1) (a) for issuance of a certificate of lead-free or of a certificate of lead-safe status, the lead risk assessor shall issue the appropriate certificate, subject to s. 254.18.

AB806, s. 23 Section 23. 254.173 of the statutes is created to read:

AB806,10,19 254.173 Immunity from liability for lead poisoning or lead exposure; restrictions. (1) Legislative findings and purpose. (a) The legislature finds all of the following:

AB806,11,2 1. That a national task force appointed by the federal department of housing and urban development, the task force on lead-based paint hazard reduction and financing, found that 1,700,000 children under 6 years of age have blood lead levels at or above the federally established level of concern. The task force also found that the most common cause of childhood lead poisoning is ingestion of lead-contaminated surface dust from lead-bearing paint. The other significant cause is dust from bare lead-contaminated soil.

AB806,11,7 2. That high levels of lead in a child's blood can cause permanent nervous system damage and even relatively low blood lead levels can cause significant nervous system effects. Of 58,797 children who were screened in this state in fiscal year 1995-96, 11,170, or 19%, were newly identified as having blood lead levels that constitute lead poisoning or lead exposure.

AB806,11,17 (b) The legislature encourages property owners to address the problems associated with lead-bearing paint by bringing their property into compliance with the applicable state standards and finds that an appropriate method to so encourage property owners is to hold them not liable with respect to a person who develops lead poisoning or lead exposure in the property. The purpose of these standards and this restriction on liability is to reduce the exposure of children and others to lead-bearing paints, thereby substantially reducing the number of persons who develop lead poisoning or lead exposure. In addition, these standards and this restriction on liability will improve the quality of this state's housing stock and result in greater availability of insurance coverage for lead hazards.

AB806,11,25 (2) Immunity; conditions; restrictions. An owner of a dwelling or unit of a dwelling and his or her employes and agents are immune from civil and criminal liability and may not be subject to an agency proceeding under ch. 227 for their acts or omissions related to lead poisoning or lead exposure of a person who resides in or has visited the dwelling or unit if, at the time that the lead poisoning or lead exposure occurred, a certificate of lead-free status or a certificate of lead-safe status was in effect for the dwelling or unit. This subsection does not apply if it is shown by clear and convincing evidence that one of the following has occurred:

AB806,12,1 (a) The owner or his or her employe or agent obtained the certificate by fraud.

AB806,12,3 (b) The owner or his or her employe or agent violated a condition of the certificate.

AB806,12,7 (c) During renovation, remodeling, maintenance or repair after receiving the certificate, the owner or his or her employe or agent created a lead-bearing paint hazard that was present in the dwelling or unit of the dwelling at the time that the lead poisoning or lead exposure occurred.

AB806,12,10 (d) The owner or his or her employe or agent failed to respond in a timely manner to notification by a tenant, by the department or by a local health department that a lead-bearing paint hazard might be present.

AB806,12,12 (e) The lead poisoning or lead exposure was caused by a source of lead in the dwelling or unit of the dwelling other than lead-bearing paint.

AB806,12,19 (3) Temporary immunity; exception. An owner of a dwelling or unit of a dwelling and his or her employes and agents are immune from civil and criminal liability and may not be subject to an agency proceeding under ch. 227 for their acts or omissions related to lead poisoning or lead exposure that occur during the first 90 days after the owner acquires the dwelling or unit, except that this subsection does not apply to lead poisoning or lead exposure that results from a lead-bearing paint hazard created by the owner or his or her employe or agent.

AB806, s. 24 Section 24. 254.174 of the statutes is amended to read:

AB806,13,6 254.174 Technical advisory committees. Before the department may promulgate rules under s. 254.167, 254.168, 254.17 or 254.172 or 254.179, the department shall appoint a technical advisory committee under s. 227.13 and shall consult with the technical advisory committee on the proposed rules. Any technical advisory committee required under this section shall include representatives from local health departments that administer local lead programs, representatives from the housing industry, persons certified under s. 254.176 and , representatives from the medical or public health professions and advocates for persons at risk of lead poisoning. Any technical advisory committee required under this section before promulgating rules under s. 254.168 shall also include representatives of facilities serving children under 6 years of age.

AB806, s. 25 Section 25. 254.176 (3) (b) of the statutes is repealed.

AB806, s. 26 Section 26. 254.178 (2) (b) of the statutes is repealed.

AB806, s. 27 Section 27. 254.179 of the statutes is created to read:

AB806,13,11 254.179 Rules for dwellings and premises. (1) Subject to s. 254.174, the department shall promulgate as rules all of the following:

AB806,13,15 (a) Except as provided in sub. (3), the standards for a premises, dwelling or unit of a dwelling that must be met, including the level of testing and sampling required to be performed, for issuance of a certificate of lead-free status or a certificate of lead-safe status to the owner of the premises, dwelling or unit of a dwelling.

AB806,13,17 (b) The procedures by which a certificate of lead-free status or a certificate of lead-safe status may be issued or revoked.

AB806,13,19 (c) The period of validity of a certificate of lead-free status or a certificate of lead-safe status, including all of the following:

AB806,13,23 1. Authorization for the certificate of lead-free status to remain in effect unless revoked because of erroneous issuance or because the premises, dwelling or unit of the dwelling is not free of lead-bearing paint. The rules shall specify that the face of the certificate shall indicate that the certificate is valid unless revoked.

AB806,14,5 2. The standards limiting the length of validity of a certificate of lead-safe status, including the condition of a premises, dwelling or unit of a dwelling, the type of lead hazard reduction activity that was performed and any other requirements that must be met to maintain certification, unless the certificate is earlier revoked because of erroneous issuance or because the premises, dwelling or unit of the dwelling is not safe from lead-bearing paint hazards. The rules shall specify that the face of the certificate shall indicate the certificate's length of validity.

AB806,14,8 (d) A mechanism for creating a registry of all premises, dwellings or units of dwellings for which a certificate of lead-free status or a certificate of lead-safe status is issued.

AB806,14,14 (e) 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 of completion and the scope of activities that the owner or agent may perform following certification, to the extent consistent with federal law, that are preliminary to activities and standards required under par. (a) to obtain a certificate of lead-free status or a certificate of lead-safe status.

AB806,14,18 (2) Subject to s. 254.174, the department may promulgate rules that set forth safe work practices that shall be followed in the demolition of a building constructed before January 1, 1978, to avoid exposure by persons to lead hazards in the area of the demolition.

AB806,14,23 (3) Rules under sub. (1) (a) may not require sampling or testing of dwellings, units of dwellings or premises for the presence of lead-bearing paint or a lead hazard before lead hazard reduction activities are conducted if the presence of lead-bearing paint or a lead hazard is assumed and the lead hazard reduction activities are performed in a lead-safe manner.

AB806, s. 28 Section 28. 254.18 of the statutes is created to read:

AB806,15,7 254.18 Certificate of lead-free status and certificate of lead-safe status; fees. Although the department shall review fees for issuance of certificates of lead-free status and certificates of lead-safe status every 2 years and adjust the fees to reflect costs of maintaining the registry under s. 254.179 (1) (d), the department may impose a fee for issuance of a certificate of lead-free status that may not exceed $50 and may impose a fee for issuance of a certificate of lead-safe status that may not exceed $25.

AB806, s. 29 Section 29. Chapter 606 of the statutes is created to read:

AB806,15,11 chapter 606 state residential lead liability fund