SB232: Bill Text

SB232,20,13 (2) If a certified independent risk assessor determines that the owner of a dwelling constructed in this state on or after January 1, 1950, but before January 1, 1978, meets the requirements of s. 254.17 (3) and (5) and agrees to comply with s. 254.17 (4), the inspector or assessor shall issue a certificate of lead hazard reduction.

Note: Repeals and recreates the provision of current law relating to lead hazard reduction. Specifically, this Section creates voluntary requirements for the prevention and control of lead-bearing paint hazards in dwellings built on or after January 1, 1950 but before January 1, 1978.

The bill permits owners of dwellings constructed on or after January 1, 1950 but before January 1, 1978 to either have a certified independent lead inspector or risk assessor conduct an inspection of the dwelling or meet the essential maintenance practices and lead hazard control requirements and agree to comply with the required actions when notified of a child with lead poisoning or lead exposure for pre-1950 dwellings.

SB232, s. 22 Section 22 . 254.173 of the statutes is created to read:

SB232,20,17 254.173 Immunity from liability for lead poisoning or lead exposure; restrictions. (1) Legislative findings and purpose. (a) The legislature finds all of the following:

SB232,21,4 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 and the other significant cause is dust from bare lead-contaminated soil.

SB232,21,9 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.

SB232,21,19 (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.

SB232,22,2 (2) Immunity; conditions; restrictions. An owner of a dwelling or unit and his or her employes and agents are immune from civil liability 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 abatement, a certificate of lead-free status or a certificate of lead hazard reduction 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:

SB232,22,3 (a) The owner or his or her employe or agent obtained the certificate by fraud.

SB232,22,5 (b) The owner or his or her employe or agent violated a condition of the certificate.

SB232,22,8 (c) The owner or his or her employe or agent created a lead-bearing paint hazard during renovation, remodeling, maintenance or repair after receiving the certificate.

SB232,22,11 (d) The owner or his or her employe or agent failed to respond in a timely manner to notification by the department or by a local health department that a lead-bearing paint hazard has recurred.

SB232,22,13 (e) The lead poisoning or lead exposure was caused by a source of lead in the dwelling or unit other than lead-bearing paint.

SB232,22,19 (3) Temporary immunity; exception. An owner of a dwelling or unit and his or her employes and agents are immune from civil liability for their acts or omissions related to lead poisoning or lead exposure that occurs 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 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 Section 23. 254.174 of the statutes is amended to read:

SB232,23,12 254.174 Technical advisory committees. Before the department may promulgate rules under s. 254.167, 254.168, or 254.17 or 254.172, 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, advocates for persons at risk of lead poisoning and advocates for children. 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.

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 Section 24 . 254.177 of the statutes is created to read:

SB232,23,16 254.177 Rules for dwellings. (1) After consulting with the technical advisory committee under s. 254.174, the department shall promulgate rules on all of the following:

SB232,24,8 (a) The criteria that a dwelling must meet for the owner of the dwelling to receive a certificate of lead-free status, a certificate of abatement and a certificate of lead hazard reduction. The rules shall establish the level of testing that must be performed before a certificate may be issued, how long each type of certificate shall remain in effect, the procedures by which they may be issued and under which they may be revoked, any requirements that an owner must meet to maintain certification and a mechanism for creating a registry of all properties for which a certificate has been issued. The rules shall require that the expiration date for each certificate be stated on the certificate. The rules shall specify that a certificate of lead-free status remains in effect indefinitely, that a certificate of abatement remains in effect for no more than 20 years unless it is revoked earlier and that a certificate of lead hazard reduction remains in effect for no more than 2 years, depending on the type of lead hazard 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.

SB232,24,13 (b) Specifying the requirements for a form, as required under s. 254.17 (3) (b) 3. The form shall contain a statement that the dwelling was constructed prior to January 1, 1978, and may, therefore, contain a lead-based paint hazard. The form shall also contain a statement of the effects of lead poisoning or lead exposure on children.

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.

SB232,24,18 (c) Setting forth safe work practices that shall be followed in performing any repair or remodeling of a dwelling built before January 1, 1950, as required under s. 254.17 (3) (d) and (5) (c), and that may be followed in performing such work on a dwelling built after December 31, 1949, but before January 1, 1978. These safe work practices shall include at least all of the following:

SB232,25,6 1. Taking precautions to prevent the spread of dust in which lead is present. These may include limiting access to the work area to workers only, covering the work area with polyethylene plastic that is at least 6 mil in thickness or the equivalent, protecting workers, protecting occupants' belongings by covering or removing them from the work area, misting painted surfaces with water before disturbing and wet-sweeping debris.

SB232,25,9 2. Performing specialized cleaning upon completion of work using methods that have been proven successful in cleaning up lead-contaminated dust and debris and that 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.

SB232,25,14 (d) Setting forth unsafe work practices that shall be avoided in performing any repair or remodeling of a dwelling built before January 1, 1950, as required under s. 254.17 (3) (d) and (5) (c) and may be avoided in performing such work on a dwelling built after December 31, 1949, but before January 1, 1978. These unsafe work practices shall include at least all of the following:

SB232,25,16 1. Using power sanders, power planers or abrasive blasters unless a vacuum attachment that prevents the escape of dust in which lead is present is used.

SB232,25,17 2. Using methylene chloride strippers.

SB232,25,18 3. Uncontained water blasting.

SB232,25,20 4. Dry scraping. The department may specify a maximum square footage per room that may be dry scraped in the rules.

SB232,25,21 5. Open flame burning.

SB232,25,22 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.

SB232,26,3 (e) Setting forth standard treatment measures that owners of dwellings constructed before January 1, 1950, are required to perform under s. 254.17 (6). These treatment measures shall include at least all of the following:

SB232,26,4 1. Repairing deteriorated paint using safe work practices.

SB232,26,6 2. Providing smooth and cleanable surfaces including floors, window sills and window wells.

SB232,26,8 3. Correcting conditions in which painted surfaces are rubbing, binding or being crushed, unless the paint does not contain lead.

SB232,26,10 4. Covering or restricting access to bare soil, unless it is found not to be lead-contaminated.

SB232,26,12 5. Performing specialized cleaning of work areas upon completion of other standard treatments.

SB232,26,15 6. Performing dust testing for the presence of lead of the work area that conforms with guidelines or regulations created by the federal department of housing 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).

SB232,26,17 (f) Defining the term "abated" for the purposes of the definition of "certificate of 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".

SB232,27,3 (2) 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 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 Section 25. Chapter 606 of the statutes is created to read:

SB232,27,7 chapter 606 state residential lead liability fund

SB232,27,8 606.01 Definitions. In this chapter:

SB232,27,9 (1) "Certificate of abatement" has the meaning given in s. 254.11 (4e).

SB232,27,10 (2) "Certificate of lead-free status" has the meaning given in s. 254.11 (4m).

SB232,27,12 (3) "Certificate of lead hazard reduction" has the meaning given in s. 254.11 (4s).

SB232,27,18 606.05 Issuance of policies. The state residential lead liability fund may issue policies that insure residential property in this state against liability resulting from lead-bearing paint hazards. A policy may be issued by the fund only for property for which a certificate of abatement, a certificate of lead-free status or a certificate of lead hazard reduction is in effect. A policy may not cover periods during which a certificate is not in effect.

SB232,28,2 606.10 Rules. (1) Policies may be issued under s. 606.05 only if the manager makes a determination, as specified by rule, that insurance providing residential property owners with liability coverage for lead-bearing paint hazards is not sufficiently available in the private insurance market. Prior to making this determination, the manager shall work with insurers to encourage the offering of this coverage.

SB232,28,9 (2) The manager shall promulgate rules specifying premiums, coverage limits and covered expenses for policies issued under s. 606.05 and may promulgate other rules necessary to administer the state residential lead liability fund. The manager shall specify premiums at a level that the manager determines will be sufficient to pay all costs of the fund. The fund may not pay damages to a claimant when it is found by a court by clear and convincing evidence that one or more of the conditions in 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 Section 26. 901.055 of the statutes is created to read:

SB232,28,17 901.055 Admissibility of results of dust testing for the presence of lead. The results of a test for the presence of lead in household dust are not admissible during the course of a civil or criminal action or proceeding or an administrative proceeding unless the test was conducted by a lead inspector or lead risk assessor who is certified by the department of health and family services and who is not the owner of the property at which the test was performed or the owner's employe or agent.

Note: Specifies the inadmissibility of results of dust testing for the presence of lead under certain circumstances.

SB232, s. 27 Section 27 . Nonstatutory provisions; health and family services.

SB232,29,3 (1) Rules. The department of health and family services shall submit in proposed form the rules required under sections 254.168 (2m) and 254.177 of the statutes, as created by this act, to the legislative council staff under section 227.15 (1) of the statutes no later than the first day of the 7th month beginning after the effective 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.

SB232, s. 28 Section 28 . Initial applicability.

SB232,29,7 (1) Immunity from liability. The treatment of section 254.173 of the statutes first applies to lead poisoning or lead exposure that occurs on the effective date of this subsection.

Note: Creates a nonstatutory provision establishing the initial applicability of the Section of the bill relating to liability.

SB232, s. 29 Section 29. Effective dates. This act takes effect on the day after publication, except as follows:

SB232,29,16 (1) The treatment of sections 254.11 (4e), (4m), (4s), (4v), (5m), (8p) and (9g), 254.13 (2), 254.156, 254.162 (1) (intro.), 254.166 (1) and (2) (intro.), (c) 2. and 3. and (e), 254.168 (2m), 254.171, 254.172, 254.173 and 901.055 and chapter 606 of the statutes, the renumbering of section 254.168 (1) to (7) of the statutes, the renumbering and amendment of sections 254.166 (2) (c) and 254.168 (intro.) of the statutes and the repeal and recreation of section 254.17 of the statutes take effect on the first day of the 16th month beginning after publication.

SB232,29,18 (2) The amendment of section 254.17 (3) (b) 3. and (6) (c) of the statutes takes effect on the first day of the 76th month beginning after the publication.

Note: Creates a nonstatutory provision establishing the effective dates for this legislation.

SB232,29,19 (End)