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1. That a national task force appointed by the federal department of housing
19and urban development, the task force on lead-based paint hazard reduction and
20financing, found that 1,700,000 children under 6 years of age have blood lead levels
1at or above the federally established level of concern. The task force also found that
2the most common cause of childhood lead poisoning is ingestion of
3lead-contaminated surface dust from lead-bearing paint and the other significant
4cause is dust from bare lead-contaminated soil.
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2. That high levels of lead in a child's blood can cause permanent nervous
6system damage and even relatively low blood lead levels can cause significant
7nervous system effects. Of 58,797 children who were screened in this state in fiscal
8year 1995-96, 11,170, or 19%, were newly identified as having blood lead levels that
9constitute lead poisoning or lead exposure.
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(b) The legislature encourages property owners to address the problems
11associated with lead-bearing paint by bringing their property into compliance with
12the applicable state standards and finds that an appropriate method to so encourage
13property owners is to hold them not liable with respect to a person who develops lead
14poisoning or lead exposure in the property. The purpose of these standards and this
15restriction on liability is to reduce the exposure of children and others to
16lead-bearing paints, thereby substantially reducing the number of persons who
17develop lead poisoning or lead exposure. In addition, these standards and this
18restriction on liability will improve the quality of this state's housing stock and result
19in greater availability of insurance coverage for lead hazards.
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20(2) Immunity; conditions; restrictions. An owner of a dwelling or unit and his
21or her employes and agents are immune from civil liability for their acts or omissions
22related to lead poisoning or lead exposure of a person who resides in or has visited
23the dwelling or unit if, at the time that the lead poisoning or lead exposure occurred,
24a certificate of abatement, a certificate of lead-free status or a certificate of lead
25hazard reduction was in effect for the dwelling or unit. This subsection does not
1apply if it is shown by clear and convincing evidence that one of the following has
2occurred:
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(a) The owner or his or her employe or agent obtained the certificate by fraud.
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(b) The owner or his or her employe or agent violated a condition of the
5certificate.
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(c) The owner or his or her employe or agent created a lead-bearing paint
7hazard during renovation, remodeling, maintenance or repair after receiving the
8certificate.
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(d) The owner or his or her employe or agent failed to respond in a timely
10manner to notification by the department or by a local health department that a
11lead-bearing paint hazard has recurred.
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(e) The lead poisoning or lead exposure was caused by a source of lead in the
13dwelling or unit other than lead-bearing paint.
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14(3) Temporary immunity; exception. An owner of a dwelling or unit and his or
15her employes and agents are immune from civil liability for their acts or omissions
16related to lead poisoning or lead exposure that occurs during the first 90 days after
17the owner acquires the dwelling or unit, except that this subsection does not apply
18to lead poisoning or lead exposure that results from a lead-bearing paint hazard
19created by the owner or his or her employes or agents.
Note: Provides that an owner of a dwelling or unit and his or her employes or
agents are not liable for damages for lead poisoning or lead exposure of a person who
resides in or is visiting the dwelling or unit if, at the time the lead poisoning or lead
exposure occurred, one of 3 types of certificates have been issued for the dwelling or unit.
The bill also provides that this restriction on liability does not apply if it is shown by clear
and convincing evidence that one of 5 sets of circumstances exist.
In addition, the bill provides that an owner of a dwelling or unit and his or her
employes and agents are not liable for lead poisoning or lead exposure that occurs during
the first 90 days after the person becomes the owner of the dwelling or unit, except where
the lead poisoning or lead exposure results from a lead-bearing paint hazard created by
the owner or his or her employes or agents.
The Wisconsin supreme court has rejected the retroactive application of limits on
liability. [Martin v. Richards, 192 Wis. 2d 156, 531 NW2d 70 (1995).] Consistent with
that decision, the limits on liability in this bill apply only prospectively to lead poisoning
or lead exposure that occurs after the general effective date of the bill. See Section 28
.
SB232, s. 23
1Section
23. 254.174 of the statutes is amended to read:
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2254.174 Technical advisory committees. Before the department may
3promulgate rules under s. 254.167, 254.168
, or 254.17
or 254.172, the department
4shall appoint a technical advisory committee under s. 227.13 and shall consult with
5the technical advisory committee on the proposed rules. Any technical advisory
6committee required under this section shall include representatives from local
7health departments that administer local lead programs, representatives from the
8housing industry, persons certified under s. 254.176
and
, representatives from the
9medical or public health professions
, advocates for persons at risk of lead poisoning
10and advocates for children. Any technical advisory committee required under this
11section before promulgating rules under s. 254.168 shall also include representatives
12of facilities serving children under 6 years of age.
Note: Amends the current provision requiring appointment of a technical advisory
committee to advise the DHFS on proposed lead rules, to include as members of the
committee advocates for persons at risk of lead poisoning and advocates for children.
SB232, s. 24
13Section
24
. 254.177 of the statutes is created to read:
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14254.177 Rules for dwellings. (1) After consulting with the technical
15advisory committee under s. 254.174, the department shall promulgate rules on all
16of the following:
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(a) The criteria that a dwelling must meet for the owner of the dwelling to
18receive a certificate of lead-free status, a certificate of abatement and a certificate
19of lead hazard reduction. The rules shall establish the level of testing that must be
20performed before a certificate may be issued, how long each type of certificate shall
21remain in effect, the procedures by which they may be issued and under which they
1may be revoked, any requirements that an owner must meet to maintain certification
2and a mechanism for creating a registry of all properties for which a certificate has
3been issued. The rules shall require that the expiration date for each certificate be
4stated on the certificate. The rules shall specify that a certificate of lead-free status
5remains in effect indefinitely, that a certificate of abatement remains in effect for no
6more than 20 years unless it is revoked earlier and that a certificate of lead hazard
7reduction remains in effect for no more than 2 years, depending on the type of lead
8hazard reduction activity that was performed, unless it is revoked earlier.
Note: Creates a provision requiring the DHFS to promulgate rules that set forth
the criteria a dwelling must meet for the owner to receive a certificate of lead-free status,
a certificate of abatement or a certificate of lead hazard reduction. The bill provides that
the rules must require that the expiration date for each certificate be stated on the
certificate. The bill specifies the criteria which must be included in the rules such as the
procedures for issuing, maintaining and revoking the certificates. The bill also limits how
long the certificates of abatement and lead hazard reduction may remain in effect.
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(b) Specifying the requirements for a form, as required under s. 254.17 (3) (b)
103. The form shall contain a statement that the dwelling was constructed prior to
11January 1, 1978, and may, therefore, contain a lead-based paint hazard. The form
12shall also contain a statement of the effects of lead poisoning or lead exposure on
13children.
Note: Creates a provision requiring the DHFS to promulgate rules that develop a
form on which tenants may disclose the ages of any children under age 6 residing in the
dwelling or unit that the tenant is renting or leasing. The bill requires that the form
contain a statement that the dwelling was constructed prior to January 1, 1978 and may,
therefore, contain a lead hazard. The form must also contain a statement of the effects
of lead poisoning or lead exposure on children.
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(c) Setting forth safe work practices that shall be followed in performing any
15repair or remodeling of a dwelling built before January 1, 1950, as required under
16s. 254.17 (3) (d) and (5) (c), and that may be followed in performing such work on a
17dwelling built after December 31, 1949, but before January 1, 1978. These safe work
18practices shall include at least all of the following:
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11. Taking precautions to prevent the spread of dust in which lead is present.
2These may include limiting access to the work area to workers only, covering the
3work area with polyethylene plastic that is at least 6 mil in thickness or the
4equivalent, protecting workers, protecting occupants' belongings by covering or
5removing them from the work area, misting painted surfaces with water before
6disturbing and wet-sweeping debris.
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72. Performing specialized cleaning upon completion of work using methods that
8have been proven successful in cleaning up lead-contaminated dust and debris and
9that are appropriate to the circumstances.
Note: Creates a provision requiring the DHFS to promulgate rules that set forth
safe work practices which must be followed in any repair, remodeling or lead hazard
control activity on a dwelling constructed prior to January 1, 1950 and may be followed
in performing such work on a dwelling constructed on or after that date, but prior to
January 1, 1978.
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(d) Setting forth unsafe work practices that shall be avoided in performing any
11repair or remodeling of a dwelling built before January 1, 1950, as required under
12s. 254.17 (3) (d) and (5) (c) and may be avoided in performing such work on a dwelling
13built after December 31, 1949, but before January 1, 1978. These unsafe work
14practices shall include at least all of the following:
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1. Using power sanders, power planers or abrasive blasters unless a vacuum
16attachment that prevents the escape of dust in which lead is present is used.
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2. Using methylene chloride strippers.
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3. Uncontained water blasting.
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4. Dry scraping. The department may specify a maximum square footage per
20room that may be dry scraped in the rules.
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5. Open flame burning.
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6. Operating heat guns above 1,100 degrees Fahrenheit.
Note: Creates a provision requiring the DHFS to promulgate rules that set forth
safe unsafe work practices which must be avoided in any repair, remodeling or lead
hazard control activity on a dwelling constructed prior to January 1, 1950 and may be
avoided in performing such work on a dwelling constructed on or after that date, but prior
to January 1, 1978.
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(e) Setting forth standard treatment measures that owners of dwellings
2constructed before January 1, 1950, are required to perform under s. 254.17 (6).
3These treatment measures shall include at least all of the following:
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1. Repairing deteriorated paint using safe work practices.
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2. Providing smooth and cleanable surfaces including floors, window sills and
6window wells.
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3. Correcting conditions in which painted surfaces are rubbing, binding or
8being crushed, unless the paint does not contain lead.
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4. Covering or restricting access to bare soil, unless it is found not to be
10lead-contaminated.
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5. Performing specialized cleaning of work areas upon completion of other
12standard treatments.
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6. Performing dust testing for the presence of lead of the work area that
14conforms with guidelines or regulations created by the federal department of
15housing and urban development following completion of standard treatments.
Note: Creates a provision requiring the DHFS to promulgate rules that set forth
standard treatment measures which owners of dwellings constructed prior to January 1,
1950 are required to perform under s. 254.17 (6).
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(f) Defining the term "abated" for the purposes of the definition of "certificate
17of abatement" in s. 254.11 (4e) and for the purposes of s. 254.17 (5) (b) 3.
Note: Creates a provision requiring the DHFS to promulgate rules defining
"abated".
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1(2) The department may promulgate rules that set forth safe work practices
2that shall be followed in the demolition of a building constructed before January 1,
31978, to avoid exposure to lead hazards of persons in the area of the demolition.
Note: Creates a provision permitting the DHFS to promulgate rules that set forth
safe work practices which must be followed in the demolition of a building constructed
prior to January 1, 1978.
SB232, s. 25
4Section
25. Chapter 606 of the statutes is created to read:
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chapter 606
6
state residential lead
7
liability fund
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8606.01 Definitions. In this chapter:
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9(1) "Certificate of abatement" has the meaning given in s. 254.11 (4e).
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10(2) "Certificate of lead-free status" has the meaning given in s. 254.11 (4m).
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11(3) "Certificate of lead hazard reduction" has the meaning given in s. 254.11
12(4s).
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13606.05 Issuance of policies. The state residential lead liability fund may
14issue policies that insure residential property in this state against liability resulting
15from lead-bearing paint hazards. A policy may be issued by the fund only for
16property for which a certificate of abatement, a certificate of lead-free status or a
17certificate of lead hazard reduction is in effect. A policy may not cover periods during
18which a certificate is not in effect.
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19606.10 Rules. (1) Policies may be issued under s. 606.05 only if the manager
20makes a determination, as specified by rule, that insurance providing residential
21property owners with liability coverage for lead-bearing paint hazards is not
22sufficiently available in the private insurance market. Prior to making this
1determination, the manager shall work with insurers to encourage the offering of
2this coverage.
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3(2) The manager shall promulgate rules specifying premiums, coverage limits
4and covered expenses for policies issued under s. 606.05 and may promulgate other
5rules necessary to administer the state residential lead liability fund. The manager
6shall specify premiums at a level that the manager determines will be sufficient to
7pay all costs of the fund. The fund may not pay damages to a claimant when it is
8found by a court by clear and convincing evidence that one or more of the conditions
9in s. 254.173 (2) (a) to (e) exist.
Note: Creates a state residential lead liability fund to issue policies that insure
residential property against liability resulting from lead-bearing paint hazards if one of
3 types of certificates is in effect for the property. Policies may be issued by the fund only
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 available in the
private insurance market.
SB232, s. 26
10Section
26. 901.055 of the statutes is created to read:
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11901.055 Admissibility of results of dust testing for the presence of lead. 12The results of a test for the presence of lead in household dust are not admissible
13during the course of a civil or criminal action or proceeding or an administrative
14proceeding unless the test was conducted by a lead inspector or lead risk assessor
15who is certified by the department of health and family services and who is not the
16owner of the property at which the test was performed or the owner's employe or
17agent.
Note: Specifies the inadmissibility of results of dust testing for the presence of lead
under certain circumstances.
SB232, s. 27
18Section
27
.
Nonstatutory provisions; health and family services.
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(1)
Rules. The department of health and family services shall submit in
20proposed form the rules required under sections 254.168 (2m) and 254.177 of the
1statutes, as created by this act, to the legislative council staff under section 227.15
2(1) of the statutes no later than the first day of the 7th month beginning after the
3effective date of this subsection.
Note: Requires the submission of rules required under ss. 254.168 (2m) and
254.177 to the legislative council rules clearinghouse by a specified time.
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(1)
Immunity from liability. The treatment of section 254.173 of the statutes
6first applies to lead poisoning or lead exposure that occurs on the effective date of this
7subsection.
Note: Creates a nonstatutory provision establishing the initial applicability of the
Section of the bill relating to liability.
SB232, s. 29
8Section
29.
Effective dates. This act takes effect on the day after publication,
9except as follows:
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(1)
The treatment of sections 254.11 (4e), (4m), (4s), (4v), (5m), (8p) and (9g),
11254.13 (2), 254.156, 254.162 (1) (intro.), 254.166 (1) and (2) (intro.), (c) 2. and 3. and
12(e), 254.168 (2m), 254.171, 254.172, 254.173 and 901.055 and chapter 606 of the
13statutes, the renumbering of section 254.168 (1) to (7) of the statutes, the
14renumbering and amendment of sections 254.166 (2) (c) and 254.168 (intro.) of the
15statutes and the repeal and recreation of section 254.17 of the statutes take effect on
16the first day of the 16th month beginning after publication.
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(2)
The amendment of section 254.17 (3) (b) 3. and (6) (c) of the statutes takes
18effect on the first day of the 76th month beginning after the publication.
Note: Creates a nonstatutory provision establishing the effective dates for this
legislation.