LRB-4539/1
DAK&PJK:cjs:ch
1999 - 2000 LEGISLATURE
February 25, 2000 - Introduced by Representatives Sykora and Coggs,
cosponsored by Senator Jauch. Referred to Committee on Housing.
AB806,1,12
1An Act to repeal 254.17, 254.176 (3) (b), 254.178 (2) (b) and chapter 606;
to
2renumber and amend 254.154 and 254.166 (2) (c);
to amend 20.435 (1) (gm),
3254.15 (1), 254.166 (1), 254.167 (intro.), 254.167 (1), 254.167 (2), 254.167 (3) and
4254.174;
to repeal and recreate 254.172; and
to create 254.11 (4g), 254.11
5(4h), 254.11 (5m), 254.11 (8d), 254.11 (8s), 254.11 (9g), 254.154 (2), 254.166 (2)
6(c) 2., 254.166 (2) (c) 3., 254.166 (2) (e), 254.171, 254.173, 254.179, 254.18,
7chapter 606 and 901.055 of the statutes;
relating to: conducting lead
8investigations, lead-bearing paint hazard control, requirements for
9certification of lead-free or lead-safe status for dwellings and premises,
10immunity from liability for lead poisoning or lead exposure, a state residential
11lead liability fund, granting rule-making authority, requiring the exercise of
12rule-making authority and making appropriations.
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:
AB806,4,123
20.435
(1) (gm)
Licensing, review and certifying activities; fees; supplies and
4services. The amounts in the schedule for the purposes specified in ss. 146.50 (8),
5250.05 (6), 252.23, 252.24, 252.245, 254.176, 254.178,
254.179 (1) (d), 254.20 (5) and
6(8), 254.31 to 254.39, 254.41, 254.47, 254.61 to 254.89 and 255.08 (2) and ch. 69, for
7the purchase and distribution of medical supplies and to analyze and provide data
8under s. 250.04. All moneys received under ss. 146.50 (5) (f), (8) (d), 250.04 (3m),
9250.05 (6), 252.23 (4) (a), 252.24 (4) (a), 252.245 (9), 254.176, 254.178,
254.18, 254.20
10(5) and (8), 254.31 to 254.39, 254.41, 254.47, 254.61 to 254.89 and 255.08 (2) (b) and
11ch. 69 and as reimbursement for medical supplies shall be credited to this
12appropriation account.
AB806, s. 2
13Section
2. 254.11 (4g) of the statutes is created to read:
AB806,4,1714
254.11
(4g) "Certificate of lead-free status" means a certificate issued by a
15certified lead risk assessor that documents a finding by the assessor that a premises,
16dwelling or unit of a dwelling is free of lead-bearing paint as of the date specified on
17the certificate.
AB806, s. 3
18Section
3. 254.11 (4h) of the statutes is created to read:
AB806,5,219
254.11
(4h) "Certificate of lead-safe status" means a certificate issued by a
20certified lead risk assessor that documents that the assessor detected no
1lead-bearing paint hazards affecting the premises, dwelling or unit of the dwelling
2on the date specified on the certificate.
AB806, s. 4
3Section
4. 254.11 (5m) of the statutes is created to read:
AB806,5,54
254.11
(5m) "Elevated blood lead level" means a level of lead in blood that is
5any of the following:
AB806,5,76
(a) Twenty or more micrograms per 100 milliliters of blood, as confirmed by one
7venous blood test.
AB806,5,98
(b) Fifteen or more micrograms per 100 milliliters of blood, as confirmed by 2
9consecutive venous blood tests that are performed at least 90 days apart.
AB806, s. 5
10Section
5. 254.11 (8d) of the statutes is created to read:
AB806,5,1211
254.11
(8d) "Lead-bearing paint hazard" has the meaning specified by rule by
12the department.
AB806, s. 6
13Section
6. 254.11 (8s) of the statutes is created to read:
AB806,5,1614
254.11
(8s) "Lead investigation" means a measure or set of measures designed
15to identify the presence of lead or lead hazards, including examination of painted or
16varnished surfaces, paint, dust, water and other environmental media.
AB806, s. 7
17Section
7. 254.11 (9g) of the statutes is created to read:
AB806,5,1918
254.11
(9g) "Lead risk assessor" has the meaning specified by rule by the
19department.
AB806, s. 8
20Section
8. 254.15 (1) of the statutes is amended to read:
AB806,6,921
254.15
(1) Develop and implement a comprehensive statewide lead poisoning
22or lead exposure prevention and treatment program that includes lead poisoning or
23lead exposure prevention grants under s. 254.151; any childhood lead poisoning
24screening requirement under rules promulgated under ss. 254.158 and 254.162; any
25requirements regarding care coordination and follow-up for children with lead
1poisoning or lead exposure required under rules promulgated under s. 254.164;
2departmental responses to reports of lead poisoning or lead exposure under s.
3254.166; any lead
inspection investigation requirements under rules promulgated
4under ss. 254.167
, ; any lead inspection requirements under rules promulgated
5under 254.168
and 254.17; any lead hazard reduction requirements under rules
6promulgated under s. 254.172;
and certification, accreditation and approval
7requirements under ss. 254.176 and 254.178;
any certification requirements and
8procedures under rules promulgated under s. 254.179; and any fees imposed under
9s. 254.18.
AB806, s. 9
10Section
9. 254.154 of the statutes is renumbered 254.154 (1) and amended to
11read:
AB806,6,2012
254.154
(1) This subchapter does not prohibit any city, village, town or other
13political subdivision from enacting and enforcing ordinances establishing a system
14of lead poisoning or lead exposure control that provides the same or higher standards
15than those set forth in this subchapter.
Nothing in this subchapter may be
16interpreted to supersede ordinances of a city of the first class that relate to the
17liability of an owner of property with respect to a lead-based paint hazard. Nothing
18in this subchapter may be interpreted or applied in any manner to impair the right
19of any person, entity, municipality or other political subdivision to sue for damages
20or equitable relief or to restrain a violation of such an ordinance.
AB806, s. 10
21Section
10. 254.154 (2) of the statutes is created to read:
AB806,7,522
254.154
(2) If the criteria specified in ordinances of a city of the first class that
23relate to achieving a lead-free or lead-safe status are the same as or higher than the
24standards promulgated as rules under s. 254.179 (1) (a), the owner of a dwelling, unit
25of a dwelling or premises that meets the criteria specified in the ordinances is subject
1to the ordinances, rather than the rules under s. 254.179 (1) (a) and is entitled to
2receive a certificate of lead-free status or a certificate of lead-safe status, as
3appropriate, under this subchapter. If issued, the certificate of lead-free status and
4the certificate of lead-safe status are subject to this subchapter and rules
5promulgated under this subchapter.
AB806, s. 11
6Section
11. 254.166 (1) of the statutes is amended to read:
AB806,8,57
254.166
(1) The department may, after being notified that an occupant of a
8dwelling
or premises who is under 6 years of age has blood lead poisoning or lead
9exposure, present official credentials to the owner or occupant of the dwelling or
10premises, or to a representative of the owner, and request admission to conduct a lead
11inspection investigation of the dwelling or premises.
If the department is notified
12that an occupant of a dwelling or premises who is a child under 6 years of age has
13an elevated blood lead level, the department shall conduct a lead investigation of the
14dwelling or premises or ensure that a lead investigation of the dwelling or premises
15is conducted, except that the department may waive this requirement in a city of the
16first class. The lead
inspection investigation shall be conducted during business
17hours, unless the owner or occupant of the dwelling or premises consents to an
18inspection investigation during nonbusiness hours or unless the department
19determines that the dwelling or premises presents an imminent lead hazard. The
20department shall use reasonable efforts to provide prior notice of the lead
inspection 21investigation to the owner of the dwelling or premises. The department may remove
22samples or objects necessary for laboratory analysis to determine the presence of a
23lead hazard in the dwelling or premises. The department shall prepare and file
24written reports of all
inspections lead investigations conducted under this section
25and shall make the contents of these reports available for inspection by the public,
1except for medical information, which may be disclosed only to the extent that
2patient health care records may be disclosed under ss. 146.82 to 146.835. If the owner
3or occupant refuses admission, the department may seek a warrant to
inspect 4investigate the dwelling or premises. The warrant shall advise the owner or
5occupant of the scope of the
inspection lead investigation.
AB806, s. 12
6Section
12. 254.166 (2) (c) of the statutes is renumbered 254.166 (2) (c) (intro.)
7and amended to read:
AB806,8,98
254.166
(2) (c) (intro.) Notify the occupant of the dwelling or premises or
that
9person's the occupant's representative
that of all of the following:
AB806,8,11
101. That a lead hazard is present on or in the dwelling or premises
and may
11constitute a health hazard.
AB806, s. 13
12Section
13. 254.166 (2) (c) 2. of the statutes is created to read:
AB806,8,1413
254.166
(2) (c) 2. The results of any lead investigations conducted on or in the
14dwelling or premises.
AB806, s. 14
15Section
14. 254.166 (2) (c) 3. of the statutes is created to read:
AB806,8,1616
254.166
(2) (c) 3. Any actions taken to reduce or eliminate the lead hazard.
AB806, s. 15
17Section
15. 254.166 (2) (e) of the statutes is created to read:
AB806,8,2018
254.166
(2) (e) If an order is issued under par. (d), conduct or require a certified
19lead risk assessor to conduct a lead investigation, a check of work completed and dust
20tests for the presence of hazardous levels of lead to ensure compliance with the order.
AB806, s. 16
21Section
16. 254.167 (intro.) of the statutes is amended to read:
AB806,9,4
22254.167 Conduct of lead inspection investigation. (intro.) Subject to the
23limitation under s. 254.174, the department may promulgate rules establishing
24procedures for conducting lead
inspections investigations of dwellings and premises.
25Any rules promulgated under this section shall meet, but not exceed, any
1requirements under regulations promulgated by the administrator of the federal
2environmental protection agency under section 402 of the federal toxic substances
3control act, as created by section 1021 of P.L.
102-550. The rules promulgated under
4this section may include the following:
AB806, s. 17
5Section
17. 254.167 (1) of the statutes is amended to read:
AB806,9,86
254.167
(1) Specific procedures for
inspecting investigating, testing or
7sampling painted, varnished or other finished surfaces, drinking water, household
8dust, soil and other materials that may contain lead.
AB806, s. 18
9Section
18. 254.167 (2) of the statutes is amended to read:
AB806,9,1410
254.167
(2) Specific procedures for the notification of owners, operators,
11occupants or prospective occupants, mortgagees and lienholders of lead levels
12identified during
an i
nspection
a lead investigation and of any health risks that are
13associated with the lead level and condition of the lead found during the
inspection
14lead investigation.
AB806, s. 19
15Section
19. 254.167 (3) of the statutes is amended to read:
AB806,9,1816
254.167
(3) The form of lead
inspection investigation reports, the requirements
17for filing the reports with the department and the procedures by which members of
18the public may obtain copies of
inspection lead investigation reports.
AB806, s. 20
19Section
20. 254.17 of the statutes is repealed.
AB806, s. 21
20Section
21. 254.171 of the statutes is created to read:
AB806,9,25
21254.171 Dwellings and units of dwellings where child has elevated
22blood lead level. If an owner of a dwelling or unit of a dwelling receives written
23notice from the department or a local health department that a child under 6 years
24of age, who resides in the owner's owner-occupied dwelling or unit or who resides in
25the owner's dwelling or unit under the terms of a rental agreement, has an elevated
1blood lead level, the owner shall promptly obtain a certificate of lead-free status or
2certificate of lead-safe status for the affected dwelling or unit. Nothing in this
3section precludes the department or the department's agent from conducting a lead
4investigation or issuing an order under s. 254.166.
AB806, s. 22
5Section
22. 254.172 of the statutes is repealed and recreated to read:
AB806,10,9
6254.172 Prevention and control of lead-bearing paint hazards in
7dwellings and premises. (1) Subject to the limitation under s. 254.174, the
8department may promulgate rules governing lead hazard reduction that the
9department determines are not preempted by federal law.
AB806,10,15
10(2) If a
certified lead risk assessor conducts a lead investigation of a dwelling
11or premises, he or she shall conduct the lead investigation and issue a report in
12accordance with any rules promulgated under s. 254.167. If the report indicates that
13the dwelling or premises meets criteria under s. 254.179 (1) (a) for issuance of a
14certificate of lead-free or of a certificate of lead-safe status, the lead risk assessor
15shall issue the appropriate certificate, subject to s. 254.18.
AB806, s. 23
16Section
23. 254.173 of the statutes is created to read:
AB806,10,19
17254.173 Immunity from liability for lead poisoning or lead exposure;
18restrictions. (1) Legislative findings and purpose. (a) The legislature finds all
19of the following:
AB806,11,220
1. That a national task force appointed by the federal department of housing
21and urban development, the task force on lead-based paint hazard reduction and
22financing, found that 1,700,000 children under 6 years of age have blood lead levels
23at or above the federally established level of concern. The task force also found that
24the most common cause of childhood lead poisoning is ingestion of
1lead-contaminated surface dust from lead-bearing paint. The other significant
2cause is dust from bare lead-contaminated soil.
AB806,11,73
2. That high levels of lead in a child's blood can cause permanent nervous
4system damage and even relatively low blood lead levels can cause significant
5nervous system effects. Of 58,797 children who were screened in this state in fiscal
6year 1995-96, 11,170, or 19%, were newly identified as having blood lead levels that
7constitute lead poisoning or lead exposure.
AB806,11,178
(b) The legislature encourages property owners to address the problems
9associated with lead-bearing paint by bringing their property into compliance with
10the applicable state standards and finds that an appropriate method to so encourage
11property owners is to hold them not liable with respect to a person who develops lead
12poisoning or lead exposure in the property. The purpose of these standards and this
13restriction on liability is to reduce the exposure of children and others to
14lead-bearing paints, thereby substantially reducing the number of persons who
15develop lead poisoning or lead exposure. In addition, these standards and this
16restriction on liability will improve the quality of this state's housing stock and result
17in greater availability of insurance coverage for lead hazards.
AB806,11,25
18(2) Immunity; conditions; restrictions. An owner of a dwelling or unit of a
19dwelling and his or her employes and agents are immune from civil and criminal
20liability and may not be subject to an agency proceeding under ch. 227 for their acts
21or omissions related to lead poisoning or lead exposure of a person who resides in or
22has visited the dwelling or unit if, at the time that the lead poisoning or lead exposure
23occurred, a certificate of lead-free status or a certificate of lead-safe status was in
24effect for the dwelling or unit. This subsection does not apply if it is shown by clear
25and convincing evidence that one of the following has occurred:
AB806,12,1
1(a) The owner or his or her employe or agent obtained the certificate by fraud.
AB806,12,32
(b) The owner or his or her employe or agent violated a condition of the
3certificate.
AB806,12,74
(c) During renovation, remodeling, maintenance or repair after receiving the
5certificate, the owner or his or her employe or agent created a lead-bearing paint
6hazard that was present in the dwelling or unit of the dwelling at the time that the
7lead poisoning or lead exposure occurred.