Chapter DHS 163

DHS 163.31(4)(m) (m) The person failed or refused to permit entry or inspection by an authorized representative of the department.

DHS 163.31(4)(n) (n) The person failed or refused to comply with, or to ensure that employed or contracted persons comply with, the work practice standards and protocols under this chapter.

DHS 163.31(4)(o) (o) The person committed an action or created a condition relating to a regulated activity that in the department’s judgment constitutes unreasonable risk to the health, safety, or welfare of any person.

DHS 163.31(4)(p) (p) The person displayed a pattern of conduct that in the department’s judgment constitutes unreasonable risk to the health and safety of persons or the environment.

DHS 163.31(4)(q) (q) The person failed the mandatory certification examination 3 times in any 6-month period.

DHS 163.31(4)(r) (r) The person is not eligible for certification.

DHS 163.31(4)(s) (s) The person failed to comply with any federal, state or local government lead-based paint statute, ordinance, rule or regulation.

DHS 163.31(4)(t) (t) The person performed regulated work under provisional certification without meeting all conditions for provisional certification.

DHS 163.31(4)(u) (u) The person failed to respond to a letter of inquiry, notice of noncompliance, or written orders within the required time.

DHS 163.31(4)(v) (v) The person continues to violate or resumes violation of a provision for which notice of noncompliance was previously issued.

DHS 163.31(4)(w) (w) The person failed to comply with an order issued under s. DHS 163.32 (1) by the time specified in the order.

DHS 163.31(5) (5) Reasons for denial. In addition to reasons for enforcement actions under subs. (1) to (4), the department may deny an application for certification, recertification, accreditation, renewal of accreditation or approval under this chapter to any of the following persons:

DHS 163.31(5)(a) (a) A person who has had a certification, recertification, accreditation, renewal of accreditation or approval under this chapter revoked within the previous 5 years.

DHS 163.31(5)(b) (b) A person whom the department determines is not fit or qualified. In determining whether a person is fit or qualified, the department shall consider the person’s qualifications and any history of civil or criminal violation of statutes, regulations or ordinances of the United States, this state, any other state or any tribal or local government substantially related to regulated activities or other environmental remediation.

DHS 163.31(6) (6) Reasons for summary suspension. A finding of a requirement for summary suspension under s. DHS 163.32 (5) may be based on, but is not limited to, any the following:

DHS 163.31(6)(a) (a) The person has committed a substantial violation of this chapter or an order under this section, as determined by the department. A substantial violation may include one of the following:

DHS 163.31(6)(a)1. 1. Performance of work for which certification is required but for which appropriate certification was not received.

DHS 163.31(6)(a)2. 2. Performance of work using individuals who were not certified when certification was required.

DHS 163.31(6)(a)3. 3. Failure or refusal to comply with the work practice standards under s. DHS 163.14, or to ensure that employed or contracted persons comply with those work practice standards.

DHS 163.31(6)(b) (b) The person has committed an action or has created a condition relating to a regulated activity that in the department’s judgment directly threatens the health, safety or welfare of any person.

DHS 163.31 History History: CR 00-172: cr. Register February 2002 No. 554, eff. 3-1-02; EmR0928: emerg. am. (1), (2) (d), (h), (4) (intro.), (L), (n), (5) (b), and (6) (a) 3., cr. (2) (L) and (3) (c), eff. 10-16-09; CR 09-085: am. (1), (2) (d), (h), (4) (intro.), (L), (n), (5) (b), and (6) (a) 3., cr. (2) (L) and (3) (c) Register March 2010 No. 651, eff. 4-1-10; CR 19-110: am. (2) (b), (i), cr. (2) (m) to (o), am. (4) (b), (g) to (j), (L), cr. (4) (Lm), am. (4) (o), cr. (4) (t) to (w), am. (6) (a), (b) Register June 2021 No. 786, eff. 7-1-21; correction in (2) (o), (4) (w) made under s. 35.17, Stats., Register June 2021 No. 786.

DHS 163.32 DHS 163.32 Enforcement actions. In addition to issuing letters of inquiry, warning letters and noncompliance statements, which are not appealable, the department may take one or more of the following appealable actions for any reason stated under s. DHS 163.31 against a person performing or offering to perform activities regulated under this chapter:

DHS 163.32(1) (1) Order. If the department provides written notice of the grounds for an order and an explanation of the process for appealing an order imposed under this subsection, the department may order any of the following when a person violates a provision under this chapter or continues to violate or resumes violation of a provision for which notice was previously issued:

DHS 163.32(1)(a) (a) That the person stop performing, supervising, advertising, claiming to provide or offering activities for which certification is required under this chapter.

DHS 163.32(1)(b) (b) That the person advertising or conducting a training course that is represented as qualifying persons for certification under this chapter stop advertising or conducting the course.

DHS 163.32(1)(c) (c) That the person not function as a principal instructor or training manager of a lead training course for which accreditation under this chapter is required.

DHS 163.32(1)(d) (d) That the person stop violating any other provision of this chapter.

DHS 163.32(1)(e) (e) That within a specified time the person submit a plan of correction for department approval, and implement the plan as approved by the department for a violation of any provision under this chapter.

DHS 163.32(1)(f) (f) That within a specified time the person implement and comply with a plan of correction provided by the department or previously submitted by the person and approved by the department.

DHS 163.32(1)(g) (g) That the person stop performing or supervising activities for which certification is required under this chapter until all violations are corrected. The order may require all activities that are regulated under this chapter to cease until the violation is corrected.

DHS 163.32(1)(h) (h) That the person stop advertising or conducting a training course accredited or approved under this chapter until all violations are corrected.

DHS 163.32(2) (2) Denial. The department may deny an application for certification, recertification, accreditation, renewal of accreditation or approval if the department provides an applicant with a written notice of its decision to deny the application, including the reason for the denial and an explanation of the process under s. DHS 163.33 for appealing the denial.

DHS 163.32(3) (3) Civil forfeiture. The department may impose a daily forfeiture of not less than $100 nor more than $5,000 for each violation against any person who violates a provision under this chapter if the department provides written notice of the grounds for a forfeiture and an explanation of the process under s. DHS 163.33 for appealing a forfeiture. Each day of continued violation constitutes a separate offense. All of the following apply to a civil forfeiture:

DHS 163.32(3)(a) (a) The department may directly assess a forfeiture by specifying the amount of the forfeiture in the notice provided under this subsection.

DHS 163.32(3)(b) (b) A person against whom the department has assessed a forfeiture shall pay that forfeiture to the department within 10 working days after receipt of notice of the assessment or, if that person contests that assessment under s. DHS 163.33, within 10 working days after receipt of the final decision after exhaustion of administrative review or, if that person petitions for judicial review under ch. 227, Stats., within 10 working days after receipt of the final decision after exhaustion of judicial review. The department shall remit all forfeitures paid under this subsection to the state treasurer for deposit in the school fund.

DHS 163.32 Note Note: The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this subsection that has not been paid as provided in par. (b).

DHS 163.32(4) (4) Suspension. The department may suspend a certification, an accreditation or an approval issued under this chapter if the department provides written notice of suspension, the grounds for suspension and an explanation of the process under s. DHS 163.33 for appealing a suspension not less than 30 days before the date of the suspension, and the violation on which the suspension is based remains substantially uncorrected at the end of the 30-day notice period. Any suspension of a certification, accreditation or approval shall remain in effect until the department determines the interests of the residents of the state are served.

DHS 163.32(5) (5) Summary suspension.

DHS 163.32(5)(a) (a) Under the authority of s. 227.51 (3), Stats., the department may summarily suspend a certification when the department finds that this action is required to protect the health, safety or welfare of any person. A finding of a requirement for summary suspension may be based on but is not limited to one or more reasons under s. DHS 163.31 (6).

DHS 163.32(5)(b) (b) An order by a representative of the department to summarily suspend certification of a person and therefore stop a regulated activity may be a verbal or written order. Within 10 working days after the order takes effect, the department shall either permit the continuation of the regulated activity or initiate proceedings to revoke certification. Unless waived by the certified person, an informal hearing on the sole issue of whether certification shall remain suspended during revocation proceedings shall be conducted by a department designee within 20 working days after the date of suspension if the department has initiated revocation proceedings.

DHS 163.32(6) (6) Revocation. The department may revoke a certification, an accreditation or an approval issued under this chapter if the department provides written notice of revocation, the grounds for revocation and an explanation of the process under s. DHS 163.33 for appealing a revocation not less than 30 days before the date of the revocation, and the violation on which the revocation is based remains substantially uncorrected at the end of the 30-day notice period.

DHS 163.32 Note Note: Pursuant to s. 254.30 (2) (b), Stats., any person who knowingly violates any provision of this chapter or an order issued under sub. (3) shall be subject to criminal penalty and shall be fined not less than $100 or more than $5,000 per day for each violation. The court may also place the person on probation under s. 973.09, Stats., for a period not to exceed 2 years.

DHS 163.32 History History: CR 00-172: cr. Register February 2002 No. 554, eff. 3-1-02; EmR0928: emerg. am. (intro.) and (3) (intro.), eff. 10-16-09; CR 09-085: am. (intro.) and (3) (intro.) Register March 2010 No. 651, eff. 4-1-10; CR 19-110: am. (1) (a) to (c), (e), (f), (2), (3), (5) (b) Register June 2021 No. 786, eff. 7-1-21.

DHS 163.33 DHS 163.33 Appeal.

DHS 163.33(1) (1) Right to appeal. An action taken by the department under s. DHS 163.32 (1) to (6) is subject to administrative review under ch. 227, Stats.

DHS 163.33(2) (2) Appeals process. To request a hearing under ch. 227, Stats., the aggrieved person shall file, within 10 working days after the date of the department’s action, a written request for a hearing under s. 227.44, Stats. A hearing request is considered filed when the division of hearings and appeals receives the request. A request by facsimile is complete upon transmission. If the request is filed by facsimile transmission and such transmission is completed between 5 PM and midnight, one day shall be added to the prescribed period.

DHS 163.33 Note Note: A hearing request should be addressed to the Division of Hearings and Appeals, P.O. Box 7875, Madison, WI 53707. Hearing requests may be delivered in person to that office at 5005 University Avenue, Room 201, Madison, WI. Hearing requests may be faxed to 608-264-9885.

DHS 163.33(3) (3) Administrative hearing. The division of hearings and appeals shall hold an administrative hearing under s. 227.42, Stats., within 30 calendar days after receipt of the request for the administrative hearing, unless the aggrieved person consents to an extension of that time period. The division of hearings and appeals shall issue a decision no later than 45 calendar days after holding the hearing, unless both parties agree to a later date.

DHS 163.33 History History: CR 00-172: cr. Register February 2002 No. 554, eff. 3-1-02.

subch. V of ch. DHS 163 Subchapter V — Registry of Property with Certificates of Lead-Free Status or Lead-Safe Status

DHS 163.40 DHS 163.40 General provisions.

DHS 163.40(1) (1) Applicability. This subchapter applies to registered lead-free property and registered lead-safe property, the property owners and the employees and agents of property owners of registered lead-free property or registered lead-safe property, and persons performing lead-based paint activities on registered lead-safe property.

DHS 163.40(2) (2) Requirements and restrictions.

DHS 163.40(2)(b) (b) Registered lead-free property or registered lead-safe property. Only a dwelling, dwelling unit or premises with a valid certificate of lead-free status in effect may be claimed to be registered lead-free property and only a dwelling, dwelling unit or premises with a valid certificate of lead-safe status in effect may be claimed to be registered lead-safe property.

DHS 163.40(2)(c) (c) Sampling or testing.

DHS 163.40(2)(c)2. 2. ‘Treating paint as lead-based paint for registered lead-free or lead-safe properties.’ For purposes of obtaining a certificate of lead-free status or a certificate of lead-safe status and for performing lead abatement or non-abatement lead-based paint activities on registered lead-safe property, untested paint shall be treated as lead-based paint.

DHS 163.40(2)(c)3. 3. ‘Who may sample or test paint for a lead-free inspection or lead-safe investigation.’ To be included in a lead-free inspection or lead-safe investigation, sampling or testing of paint shall be conducted by an appropriately certified person who is:

DHS 163.40(2)(c)3.a. a. Not the property owner or an immediate family member, agent or employee of the property owner.

DHS 163.40(2)(c)3.b. b. Not a company or associated with a company that is directly or beneficially owned, controlled or managed by the property owner, or by an immediate family member, agent or employee of the property owner.

DHS 163.40(2)(c)3.c. c. Not a person hired by or under contract with the property owner to manage or maintain the property owner’s real property as directed by the property owner.

DHS 163.40(2)(c)3.d. d. Not a person who has been authorized by the property owner to manage or maintain the property owner’s real property on the property owner’s behalf.

DHS 163.40(2)(c)3.e. e. Not a person who has a financial interest in the laboratory results of the sampling or testing or in the determination of whether the property meets the registered lead-free property standard or the registered lead-safe property standard.

DHS 163.40(2)(c)5. 5. ‘Conducting sampling or testing.’ If sampling or testing of paint is conducted on registered lead-free property or registered lead-safe property, the certified individual shall use documented methodologies that incorporate adequate quality control procedures to do one of the following:

DHS 163.40(2)(c)5.a. a. Using the procedures under s. DHS 163.14 (8), test the paint with an XRF and, if the XRF reading is more than 1 milligram lead per square centimeter, determine that lead-based paint is present. If the reading is less than or equal to 1 milligram lead per square centimeter, determine that lead-based paint is not present. When a reading is in the inconclusive range for the XRF used, treat the paint as lead-based paint unless a paint chip sample taken under subd. 5. b. results in a determination that lead-based paint is not present.

DHS 163.40(2)(c)5.b. b. Collect a paint chip sample; have the paint chip sample analyzed by a recognized laboratory to determine detectable levels of lead that can be quantified numerically; and determine that lead-based paint is present if the laboratory result for the paint chip sample is more than 0.5% lead by weight. If the laboratory result for the paint chip sample is equal to or less than 0.5% lead by weight, determine that lead-based paint is not present.

DHS 163.40(3) (3) Transfer of certificate ownership.

DHS 163.40(3)(a) (a) Requirement to transfer. When a person obtains both equitable title and legal possession of a registered lead-free property or registered lead-safe property, any certificate issued to the previous property owner is no longer in effect unless transferred under par. (b).

DHS 163.40(3)(b) (b) Written notice to transfer.

DHS 163.40(3)(b)1. 1. To request a transfer of ownership and an amended certificate, one of the new property owners shall submit a signed and dated written notice of the change in ownership of the property to the department within 60 days after the date on which the new property owner obtains both equitable title and legal possession of a registered lead-free property or registered lead-safe property. In the written notice, the property owner who provides the notice shall provide the names and mailing addresses of the property owners or the name and mailing address of the authorized representative of the property owners.

DHS 163.40(3)(b)2. 2. The property owner shall submit the appropriate fee for an amended certificate under s. DHS 163.41 (2) (f) or 163.42 (2).

DHS 163.40(3)(c) (c) Amended certificate. After receiving a written notice and fee under par. (b), the department shall issue an amended certificate that reflects the change in the ownership of the property.

DHS 163.40(3)(d) (d) Maintaining a certificate of lead-safe status. The new owners shall comply with the conditions for maintaining the certificate under s. DHS 163.42 until the certificate expires or is terminated or revoked.

DHS 163.40 Note Note: Along with the amended certificate, the department will send the new owners information about the conditions for maintaining the certificate.

DHS 163.40(5) (5) Voluntary termination of a certificate. To voluntarily terminate a certificate of lead-free status or to terminate a certificate of lead-safe and the requirement to comply with conditions for maintaining a certificate of lead-safe status, the property owner shall return the original certificate and any existing copies to the department with a signed and dated notice to terminate the certificate. The certificate is no longer in effect on the date the department receives the notice.

DHS 163.40 History History: CR 00-172: cr. Register February 2002 No. 554, eff. 3-1-02; EmR0928: emerg. am. (1), (2) (c) 2., 3. b. and 5. a., r. (2) (a), (c) 1., 4., and (4), eff. 10-16-09; CR 09-085: am. (1), (2) (c) 2., 3. b. and 5. a., r. (2) (a), (c) 1., 4., and (4) Register March 2010 No. 651, eff. 4-1-10; CR 19-110: am. (2) (c) 2., 5. a., b. Register June 2021 No. 786, eff. 7-1-21.

DHS 163.41 DHS 163.41 Certificate of lead-free status.

DHS 163.41(1) (1) Registered lead-free property standards. All registered lead-free property shall meet all of the following standards:

DHS 163.41(1)(a) (a) Painted components. Painted components shall be free of lead-based paint, as determined by a lead-free inspection under sub. (2).

DHS 163.41(1)(b) (b) Dust from removal of paint or components. Property shall be free of a dust-lead hazard created by removal of lead-based paint or lead-based paint components, as determined by a lead-free inspection under sub. (2).

DHS 163.41(2) (2) issuance of lead-free certificate. All of the following apply to issuing a certificate of lead-free status:

DHS 163.41(2)(a) (a) Lead-free inspection protocol.

DHS 163.41(2)(a)1. 1. ‘Who may conduct.’ A lead-free inspection shall be conducted by a certified lead inspector or lead risk assessor associated with a certified lead company. Under direct on-site supervision of a certified lead inspector or risk assessor, a certified lead hazard investigator or sampling technician may assist with a lead-free inspection but may not use an XRF. Certified individuals involved with conducting a lead-free inspection shall conduct it in an unbiased, objective and impartial manner. All persons involved with conducting the lead-free inspection shall meet the requirements under s. DHS 163.40 (2) (c) 3.

DHS 163.41(2)(a)2. 2. ‘Locations inspected.’ The registered lead-free property covered by a certificate is limited to those locations subject to the lead-free inspection under one of the following subd. pars., except that all dwelling units are included when a random selection process under subd. 2. c. is successfully used:

DHS 163.41(2)(a)2.a. a. When a certificate of lead-free status is being sought for a single dwelling unit, the locations inspected shall include the dwelling unit for which the certificate is being sought and all interior and exterior common areas for the real property associated with the dwelling.

DHS 163.41(2)(a)2.b. b. When a certificate of lead-free status is being sought for an entire multi-family dwelling, the locations inspected shall include all dwelling units unless subd. 2. c. applies, and shall include all interior and exterior common areas for the real property associated with the dwelling.

DHS 163.41(2)(a)2.c. c. When a certificate of lead-free status is being sought for a multi-family dwelling with more than 20 dwelling units that are similar in construction, age and have a common painting history, the locations inspected shall include either all dwelling units or a subset of the dwelling units selected using the random selection process, and shall include all interior and exterior common areas for the real property associated with the dwelling. When the random selection process is used for dwellings built before 1960, a sufficient number of dwelling units shall be selected to provide a 95% level of confidence that at least 95% of all dwelling units would meet the standard for registered lead-free property if all dwelling units were investigated. When the random selection process is used for dwellings built in 1960 or later, a sufficient number of dwelling units shall be selected to provide a 95% level of confidence that at least 90% of all dwelling units would meet the standard for registered lead-free property if all dwelling units were investigated. If any dwelling unit included in the lead-free inspection does not meet the standard, a certificate of lead-free status may not be issued. If conditions in the failed dwelling unit are corrected, conduct a new lead-free inspection that includes a new selection of dwelling units chosen using the random selection process.

DHS 163.41 Note Note: For assistance in selecting the correct number of dwelling units to include in the lead-free inspection, refer to the most current edition of the HUD “Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing,” available at https://www.hud.gov/program_offices/healthy_homes/lbp/hudguidelines. At the first instance that a property fails a lead-free inspection, follow the actions agreed upon in the contract under s. DHS 163.13 (5) (e). Actions that might be required in the contract include the following: stop the lead-free inspection, continue with the lead-free inspection or a lead inspection to discover other sources of lead-based paint, or convert the lead-free inspection to a lead-safe risk assessment.

DHS 163.41(2)(a)2.d. d. When a certificate of lead-free status is being sought for a premises that is not a dwelling, such as a child-occupied facility, the locations inspected shall include all interior and exterior common areas for the real property associated with the premises where an occupant of the child-occupied facility might be exposed to a lead-based paint hazard.

DHS 163.41 Note Note: Subd. 2. a. to c. apply only to dwellings and subd. 2. d. applies only to other premises that are not dwellings, such as child-occupied facilities.