These rule changes will affect students, parents, schools, local public health agencies, county attorney offices and the Department. They will not affect small businesses as “small business" is defined in s. 227.114 (1) (a), Stats.
Notice of Hearings
Health and Family Services
(Health, Chs. 110-199)
Notice is hereby given that pursuant to ss. 227.24 (1), 250.04 (7), 250.041, 254.115, 254.167, 254.172, 254.176 (1) and (3), 254.178 (2), and 254.179, Stats., the Department of Health and Family Services will hold public hearings to consider the repeal and recreation of ch. HFS 163, Wis. Adm. Code, relating to certification for the identification, removal and reduction of lead-based paint hazards, the issuance and registration of certificates of lead-free status and lead-safe status, and the emergency rules now in effect on the same subject.
Hearing Information
The public hearings will be held:
Date & Time Location
January 12, 2001 Milwaukee DNR Building
Friday Rm 141, 2300 N. Martin Luther King Dr.
Beginning at 10 a.m. Milwaukee WI
January 16, 2001 Green Bay Technical College
Tuesday Rooms C215 & C231
2740 W. Mason St. (Lot F)
Beginning at 10 a.m. Green Bay WI
January 17, 2001 Marathon Co. Aging and
Wednesday Disability Resource Ctr.
Theater, 1100 Lakeview Dr.
Beginning at 10 a.m. Wausau WI
January 18, 2001 Eau Clair County courthouse
Thursday Room 2560, 721 Oxford Ave.
Beginning at 10 a.m. Eau Claire WI
January 19, 2001 Wilson Street State Office Bldg.
Friday Room 751, 1 W. Wilson St.
Beginning at 10 a.m. Madison WI
The hearing sites are fully accessible to people with disabilities.
Analysis Prepared by the Department of Health and Family Services
Chapter 254, Stats., provides for a comprehensive lead (Pb) hazard reduction program, including lead exposure screening, medical case management and reporting requirements, and the development of lead training accreditation and certification programs. Under the authority of ch. 254, Stats., the Department promulgated ch. HFS 163, Wis. Adm. Code, in 1988 to provide rules for the certification of individuals performing lead hazard reduction and for the accreditation of the courses that prepare individuals for certification. These rules have been revised over time to meet requirements of the U.S. Environmental Protection Agency (EPA).
Wisconsin met federal standards for a state-administered lead training accreditation and certification program and received EPA authorization effective January 27, 1999. The Department's Asbestos and Lead Section of the Bureau of Occupational Health administers and enforces lead-based paint training, certification and work practice provisions of ch. HFS 163, Wis. Adm. Code. The Section derives its revenues from two sources: various fees the Department assesses under this chapter; and lead program development grant monies the Department receives from EPA.
Under ch. HFS 163, a person offering, providing or supervising lead-based paint activities for which certification is required must be certified as a lead company and may only employ or contract with appropriately certified individuals to perform these activities. Effective December 1, 2000, the Department revised the training accreditation and certification requirements of the rule by emergency order. An individual may apply for certification in the following disciplines: lead low-risk worker, low-risk supervisor, high-risk worker, contractor supervisor, hazard investigator, inspector, risk assessor, project designer and sampling technician. For initial certification, the individual must be 18 years of age or older, must meet applicable education and experience qualifications, must successfully complete certification training requirements and, to be certified as a lead hazard investigator, inspector, risk assessor, low-risk supervisor or contractor supervisor, must pass a certification examination. In addition, the Department must accredit the lead training courses that prepare persons for certification.
New Wisconsin Law
1999 Wisconsin Act 113 requires the Department to review local ordinances and promulgate rules using a research-based methodology. These rules must establish all of the following:
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Standards that a premises, dwelling or unit of a dwelling must meet for issuance of a certificate of lead-free status or lead-safe status.
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A process for issuing the certificates and registering the properties for which certificates are issued.
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Procedures for revoking a certificate, and the period of validity for a certificate.
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What interim lead hazard control measures a new owner must take in vacant units when immunity from liability is provided during the first 60 days after acquiring a new dwelling.
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The requirements for a training course of up to 16 hours that property owners, their agents and employees must complete if seeking certification.
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The scope of the lead investigation and lead hazard reduction activities that may be performed following certification.
If a dwelling unit has a valid certificate of lead-free or lead-safe status when a person who resides in or visits the unit is lead poisoned, the property owner, and his or her agents and employees are generally immune from civil and criminal liability for their acts or omissions related to the lead poisoning or lead exposure.
New Provisions
Through the proposed permanent rulemaking order, the Department proposes adding the following provisions to ch. HFS 163:
Subchapter I – General Provisions
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Authority and purpose for activities involving lead-free or lead-safe property.
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The scope of Subchapter V, which the department proposes adding to implement Act 113.
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Definitions required by new provisions of the rule.
Subchapter II – Certification
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Training and certification requirements for persons who disturb lead-based paint involving lead-based property.
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For certification as a lead inspector or risk assessor, a requirement that the applicant submit proof of manufacturer's training for the XRF the person will use in inspections.
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Requirement that photo identification be presented for certification if training was not obtained from a Department-accredited training provider.
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Additional responsibilities for lead companies, including disclosure of information about the work to be performed and more information on the quarterly lead investigation activities summary.
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Expanded work practice section to address other activities, such as elevated blood investigations, lead-based paint construction, lead-free inspections, lead-safe investigations.
Subchapter III – Accreditation
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Requirement to take photographs of students to submit to the Department and insert in training certificates.
Subchapter V - Registry of Property with Certificates of Lead-Free Status or Lead-Safe Status.
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Lead-free and lead-safe property standards.
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Lead-free inspection and lead-safe investigation work practice standards and protocols to be used to determine whether a property meets the lead-free or lead-safe property standards.
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Limitations on who may conduct lead-free inspections and lead-safe investigations.
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The conditions that apply to maintaining a valid lead-safe certificate.
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Procedures for issuing a certificate of lead-free or lead-safe status, including the establishment of the effective date and expiration date. (Not effective before September 1, 2001.)
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Requirement for a property owner to obtain a certificate of lead-free or lead-safe status if a child residing in the property has been identified with an elevated blood level. (Not effective before September 1, 2001.)
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Immunity provisions under s. 254.173, Stats., that are provided by a certificate of lead-free or lead-safe status. (Not effective before September 1, 2001.)
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What a property owner must do to have temporary immunity for 60 days after acquiring a dwelling or unit. (Not effective before September 1, 2001.)
Consultation with the Lead Technical Advisory Committee and the Public
As mandated by s. 254.174, Stats., the Department created a Lead Technical Advisory Committee (LTAC) to make recommendations to the Department concerning promulgation of lead-based paint rules. Advisory Committee members were selected to represent a key interest groups. These groups included lead hazard reduction professionals, lead identification professionals, landlords and other property owners, public health departments, child advocates and day care providers.
The Department charged the LTAC with advising the Department on implementation of statutory changes enacted in 1999 Wisconsin Act 113. The LTAC met on May 26, July 12, August 16, September 8 and September 22 to review reports and recommendations from 14 public forums previously held. At the May 26 meeting, members agreed on the following guiding principles for the rules developed implement Act 113:
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Focus on protecting the most children possible with current resources.
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Encourage proper maintenance as a means of reducing lead poisoning.
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Encourage wide participation in the registry program.
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Reduce confusion by limiting differences between Department rules and other applicable regulations, such as HUD's lead hazard reduction regulations under 24 CFR Part 35.
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Strive for simplicity and clarity in order to achieve better compliance.
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Be sensitive to costs and the impact costs have on the ability to get work done.
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Reward long-term improvements.
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Encourage work when a building is vacant in order to reduce risks to occupants.
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Enforce the regulations in order to encourage compliance.
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Evaluate the registry process regularly and revise as needed.
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Look for resources to reduce lead-based paint hazards.
The Department's 14 public forums were held in various locations statewide and facilitated relatively wide public participation in the LTAC's development of recommendations. In addition to Department staff and LTAC members, more than 50 people participated in the public forum process. Public forums discussed the following issues:
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Issuance of certificates of lead-free status or lead-safe status.
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Standards buildings must meet to qualify for a certificate.
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Standards for limiting the length of certificate validity.
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Requirements that certificate-holders must meet to maintain a certificate.
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Protocols the certified lead professional must use when determining whether a building meets the standards for a certificate of lead-free status or lead-safe status.
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Forms for the certificates of “lead-free status" and “lead-safe status."
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Lead-safe work practices that must be used when conducting an activity that disturbs lead-based paint on a property.
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Training and certification of persons who perform work involving property included in the registry of certificates of lead-free status or lead-safe status.
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Educating the public about the registry of property with a valid certificate of lead-free status or lead-safe status.
New Federal Regulations
The U.S. Department of Housing and Urban Development (HUD) revised 24 CFR Part 35 effective September 15, 2000. The regulations require most properties owned by the federal government or receiving federal assistance to conduct specified activities to make the property lead-safe. The HUD regulations most directly affect property owners receiving federal rehabilitation funds and landlords whose tenants receive federal rental assistance. To meet HUD's lead-safe standards, most affected properties must have a risk assessment completed and must use certified persons to reduce or eliminate the lead-based paint hazards identified in the risk assessment report. Property owners must also use trained people to perform maintenance or renovation activities and must have a clearance visual examination and dust-lead sampling conducted after completing activities that disturb lead-based paint. The regulations also require annual re-evaluation of the property by a certified lead risk assessor.
On June 3, 1998, EPA proposed standards for identifying lead-based paint hazards under the authority of section 403 of the federal Toxic Substance Control Act. Unlike previous federal lead-based paint legislation which focused only on the presence of lead-based paint, this legislation switches the focus of Federal lead-poisoning prevention efforts away from the removal of lead-based paint toward management of lead-based paint hazards. The proposed standards, when finalized, will play an important role in the national lead-based paint program. For example, the standards will be used by risk assessors to determine if lead-based paint hazards exist in pre-1978 housing and child-occupied facilities (e.g., daycare centers). Property owners will use the standards to identify conditions that must be disclosed before leasing or selling target housing under regulations of the U.S. Department of Housing and Urban Development (HUD) and EPA. The Department of Housing and Urban Development will also incorporate these standards into its regulations on lead-based paint hazard evaluation and control in federally-assisted and owned housing. In addition, these regulations will provide advice to the public about conditions considered to present health risks to young children that should be addressed. The standards may also be incorporated into local laws and regulations, housing codes, and lending and insurance underwriting standards.
