•
Requires training and certification for persons to perform asbestos work involving the removal, renovation, enclosure, repair or encapsulation of greater than 50 linear feet or 50 square feet of friable asbestos-containing material.
•
Requires an applicant for asbestos company certification to be a state-registered business.
•
Requires an applicant for asbestos company certification to submit a description of personal protective equipment and clothing it will use, procedures for safely handling and disposing of the protective equipment and clothing to prevent contamination, and work practice procedures for hazard reduction, site decontamination, air monitoring, waste handling and final clean-up.
•
Requires an asbestos company to employ a certified asbestos specialist (supervisor).
•
Requires a certified abatement air monitoring technician to conduct air clearance following abatement, but allows asbestos inspectors to take air samples.
Summary of factual data and analytical methodologies
The Department conducted an analysis using Department data to determine the fiscal status of the asbestos certification program. Initially, the Department reviewed North American Industry Classification System (NAICS) data, but this data grossly underestimated the number of companies involved with asbestos remediation in Wisconsin. Therefore, the Department analyzed data in the WI Asbestos and Lead Database Online (WALDO) to determine and compare, by year, the numbers of initial and renewal certifications issued, revenues received, and asbestos employers in the state.
A comparison of the number of certifications processed since program inception shows that the numbers have remained relatively steady since 1993, generally fluctuating between 3,200 and 3,500. Even though there has been a small upward trend in the number of persons certified over the past several years, the higher cost disciplines (management planners and project designers) have decreased in numbers. This has resulted in flat income over the past 14 years. Fees collected from certifications have not kept pace with the 60% increase in the Midwest urban consumer price index over this time period. Beginning in State Fiscal Year 2004, asbestos program revenues have not been sufficient to cover program expenses, resulting in a program deficit. The most recent budget information available indicates that the program is operating with a deficit of approximately $300,000. This deficit is projected to increase to nearly $400,000 by the end of SFY08 as program expenses increase and revenues remain flat.
Figure 1: Comparison of Number of Asbestos Certifications to Asbestos Revenue
The Department met with asbestos companies and workers early in the rule development period to learn of each group's concerns and issues before further rule development. A public meeting for the asbestos industry was held on May 5, 2004 to solicit comments on the proposed rule. On July 1, 2004, Department staff met with asbestos training providers to discuss proposed changes. Information about the effect of the proposed rule changes on schools was e-mailed to certified school staff, CESA directors, and school associations on July 26, 2004 and their input was solicited. Department staff met with the roofing contractors on September 30, 2004, to discuss issues affecting them. Additionally, at the 2004 and 2005 fall statewide asbestos conferences, Department staff presented information about asbestos rule changes and solicited additional comments. Each meeting led to significant revisions to the proposed rule and consensus with the affected entities regarding the provisions and fees in the draft rule.
Pursuant to the Department's criteria, a proposed rule will have a significant economic impact on a substantial number of small businesses if at least 10% of the businesses affected by the proposed rules are small businesses and if operating expenditures, including annualized capital expenditures, increase by more than the prior year's consumer price index (CPI) or reduces revenues by more than the prior year's CPI. For the purposes of this analysis, we used 2006 as the index year; the 2006 CPI was 3.2%.
Analysis and supporting documents used to determine effect on small business
Entities affected: The entities affected by the repeal and recreation of Ch.
HFS 159, Wis. Adm. Code, include:
•
Entities engaged in asbestos-regulated activities: (Source: WALDO)
• Total number of entities directly regulated: 2,340 (includes abatement contractors, roofing contractors, asbestos consultants, non-asbestos businesses with certified staff, K-12 schools, government agencies, universities, and asbestos training providers)
• Total small business entities directly regulated: 800 +
• Total non-profit organizations (including colleges, trade unions, etc.): 40
•
Number of certified individuals: 3,300 (Source: WALDO)
•
Number of people: 5,563,896 Wisconsin residents, including approx. 950,000 school age children are affected because of the pervasive presence of asbestos in buildings, schools and other structures.(Source: WisStat online)
•
School districts/schools: (Source: DPI. All public and private not-for-profit K-12 schools are required to comply with the EPA AHERA regulations)
• Public K-12 School Districts: 426
• Private K-12 Schools: 968
Regulatory Costs:
Capital Costs: None. The proposed regulations would not require any capital cost expenditures.
Operational Costs: None. No additional operational costs would be expected.
Ongoing transaction costs: Company certification fees would be $200 per year for an asbestos company and $100 for an exterior-only asbestos company. Because high certification fees would place a greater financial burden on small businesses, the Department chose not to impose the higher company certification fees set by some other states. (See Table 1) Rather, to generate needed program revenues, the Department coupled lower company certification fees with a modest $50 asbestos project notification fee. Since notification fees are paid to the Department only when an asbestos project is scheduled, those companies that do more regulated asbestos work will share a greater portion of the regulatory costs. No loss of business is expected because of this additional fee.
Individual certification fees for the seven asbestos disciplines would increase modestly. While businesses may pay for their employees' certifications, they are not required to do so.
Fees for training courses would include annual accreditation fees of $250 for a refresher course and $900 for an initial course and initial application fees for course accreditation (“start-up costs") ranging from $200 to $1,000, based on course length. The initial course application fees would help cover the Department's cost of conducting the in-depth review of course curriculum materials needed to determine compliance with code requirements. Training providers with courses accredited under the current rule would not be required to pay the initial course application fees, but course accreditation renewal fees for their courses would be due one year after the publication date of the rule.
Barriers to Entry and Expansion: The Department does not expect the proposed rules to add barriers to entry into the asbestos remediation industry. The cost of company initial certification has been kept low ($100-$200) in order not to overburden small or start-up companies. Project notification fees are also modest at $50 when a 2-day advance notice is given. Training course fees are higher because more resources are required to review and approve the courses and conduct onsite course audits to determine if each training course meets regulatory standards.
Employment Effects: No detrimental or adverse effects on employment within the affected regulated entities are expected.
Summarizing Aggregate Costs:
Costs to the Department: No additional FTE, supply, travel or training costs are expected. A one-time approx. $20,000 cost will be required to upgrade the electronic database platform to handle new disciplines, fee changes and company certification.
The current asbestos program has operated under the same fee structure, without change, for 20 years. The costs of administering the program now exceed income.
Costs to business: Under the current rule, certified individuals bear most of the regulatory costs, with individual certifications making up 99.4% of the annual asbestos revenue collected by the Department. The proposed rule would spread these costs more evenly among all regulated sectors of the industry, increasing the share of costs borne by asbestos companies and training providers. Businesses (contractors, consultants and training providers) would pay 33% of overall regulatory costs, while individuals would pay 67% of costs. The average additional annual expense for businesses would be approximately $510, most of which could be passed along to their customers. Less active businesses would share a lesser amount of annual expenses because they would pay for fewer notices to the Department.
Table 3: Aggregate Annual Costs for Asbestos Businesses and Certified Individuals
|
Cost Distribution under
Proposed Rule
|
Cost Distribution under
Current Rule
|
Fee:
|
# Units x Cost
|
Total
|
# Units x Cost
|
Total
|
Company certification fees
|
250 x $200
|
$ 50,000
|
|
$ N/A
|
Exterior company certification fees
|
75 x $100
|
7,500
|
|
N/A
|
Project notification fees with 2-day notice
|
1,500 x $50
|
75,000
|
|
N/A
|
Project notification fees with 1-day notice
|
200 x $100
|
20,000
|
|
N/A
|
Sub-Total
|
|
$ 152,500
|
|
$ 0
|
Individual annual certification fees*
|
|
|
|
|
Asbestos Worker
|
675 x $75
|
$ 50,625
|
675 x $50
|
$ 3,750
|
Asbestos Supervisor
|
1,300 x $125
|
162,500
|
1,300 x $100
|
130,000
|
Exterior Worker (1-time fee**)
|
450 x $125
|
56,250
|
450 x $25/yr.
|
11,250
|
Exterior Supervisor
|
150 x $75
|
11,250
|
150 x $50
|
7,500
|
Asbestos Inspector
|
575 x $175
|
100,625
|
575 x $150
|
86,250
|
Asbestos Management Planner
|
75 x $125
|
9,375
|
75 x $100
|
7,500
|
Asbestos Project Designer
|
75 x $175
|
13,125
|
75 x $150
|
11,250
|
Sub-Total
|
|
$ 403,750
|
|
$ 287,500
|
Training Provider fees
|
|
|
|
|
Annual accreditation fee - initial
|
31 x $900
|
$ 27,900
|
|
N/A
|
Annual accreditation fee - refresher
|
22 x $250
|
5,500
|
|
N/A
|
Sub-Total
|
|
$ 33,400
|
|
$ 0
|
Instructor approval fees
|
25 x $50
|
1,250
|
|
N/A
|
Sub-Total
|
|
$ 1,250
|
|
$ N/A
|
Total annualized costs
|
|
$ 590,900
|
|
$ 287,500
|
* Numbers based on 2007 numbers of certified persons, training courses and instructors and active companies based on notices received. Exterior Worker/Supervisor certification numbers are based on current Roofing Worker/Supervisor certification numbers.
** The Exterior Worker has a 1-time non-expiring certification. Annual certification numbers would drop significantly after the first year.
Evaluating the Overall Regulatory Impacts:
The benefit of an effective regulatory program is better compliance by companies and individuals, and better assurance that public health is protected because workers use safe work practices that protect themselves and others. The costs of regulating such an industry are borne by that industry and those who use their specialized services. The end result is that hazardous asbestos work is conducted by trained and certified persons working for certified companies, the environment is protected, and public health is protected.
The chief benefit of ensuring compliant, high quality training courses is that workers acquire the knowledge and skills required to use safe work practices and to comply with the various state and federal regulatory requirements. In addition, asbestos training providers are assured of a limited field of market competition because their courses are regulated and providers without approved courses may not offer asbestos courses required for certification.
The consequences if asbestos work were not regulated would be a higher rate of asbestos-related diseases and deaths, particularly among people who do building renovation and demolition work. Overall, healthcare costs and hospitalization would rise and worker productivity would decline due to increased incidence of asbestos-related diseases.
Initial Regulatory Flexibility Analysis
Types of small businesses affected by the rule:
Asbestos abatement contractors, exterior abatement contractors, asbestos management and consulting companies, and asbestos training providers, small businesses that disturb or remove asbestos in the course of doing business.
Reporting, bookkeeping and other procedures required for compliance with proposed rule:
No new reporting or bookkeeping are required under the proposed rule. New procedures required of abatement contractors and others who disturb asbestos include creation and maintenance of occupant protection plans for work in occupied buildings, project logs for each regulated project, and training records for exterior asbestos workers. New procedures required of asbestos training providers include examination and documentation of student identification records, photographing each student and submitting the photos electronically to the Department, submittal of class and student data for each class to the Department.
Professional skills necessary for compliance with the proposed rule:
Training providers must be competent with basic functions of electronic submittal of various types of files using email and use of an online data entry program to submit course notifications. Other businesses would also benefit from computer and internet skills for submitting applications and notifications, but these skills are not mandatory.
Fiscal Estimate
Since 1988 when asbestos program fees were established in statute and rule, program costs have increased annually due to inflation with no subsequent revision in fees. Revenue from current fees is no longer sufficient to cover operating expenses. To meet current costs, the Department is proposing to revise and increase fees as follows:
•
Asbestos worker certification - increase from $50 to $75
•
Asbestos supervisor certification - increase from $100 to $125
•
Asbestos inspector certification - increase from $150 to $175
•
Asbestos management planner certification - increase from $100 to $125
•
Asbestos project designer certification - increase from $150 to 175
•
Exterior asbestos worker (was roofing worker) – increase from $25 to a one-time fee of $125
•
Exterior asbestos supervisor (was roofing supervisor) – increase from $50 to $75
•
Asbestos company certification – new fees of $200 for asbestos company (including abatement, consulting and training provider companies) and $100 for exterior asbestos company
•
Training course application – new one-time fee of $200 per day of training (ranges from $200 to $1,000)
•
Initial training course accreditation – change from one-time fee of $750 to annual fee of $900
•
Refresher training course accreditation – change from one-time fee of $250 to annual fee of $250
•
Instructor approval – new annual fee of $50
•
Asbestos project notification – new fees of $50 with 2 days or more notice or $100 for less than 2 days notice
•
Replacement card for lost or damaged certification card – increase from $8 to $25
•
Handling of incomplete applications – new $25 fee
•
Training course audit when a third audit is needed to verify correction of course deficiencies identified on 2 previous audits of the same course – audit fee includes the actual cost of conducting the audit, including staff time and travel expenses.
The Asbestos Certification Program has been operating in deficit since SFY04 with a projected deficit total of $341,242 by the end of SFY08. This deficit will continue to increase until a fee increase is in place. The proposed fee increase is expected to eliminate the deficit within five to six years after implementation. The net effect of this rule would be to provide sufficient revenue for the asbestos certification program to operate for the next five to seven years.
The proposed fee structure spreads expenses more evenly among entities regulated by the rule. Currently, individual certification fees make up 99% of program revenue. Under the proposed rule, individuals would continue to account for the majority of revenue, at 68%. Companies (abatement, consulting, exterior abatement, training providers and non-asbestos companies with in-house certified staff) would cover the remaining 32% of fees. Companies conducting more asbestos abatement projects would pay proportionately more in fees than companies doing fewer projects because they would pay more notification fees.
Under the proposed fee structure, it is estimated that individual certification fees in the first full year would be about $403,000, company certification fees would be about $153,000, and course accreditation fees would be about $36,000. The projected average annual cost to a small business conducting asbestos abatement would be $1,150 (for company certification and project notification fees, which are paid only when a company conducts asbestos abatement and can be passed on to the client); for a small business conducting asbestos consulting the annual cost would be $200 (for company certification only); and, for a small business conducting exterior-only abatement the average annual cost would be about $300 (for company certification and project notifications). For a training course, the annual cost to the training provider would be $1,150 to maintain accreditation of both the initial and refresher course in a discipline.
It is expected that state government would have some increased costs, but no additional FTE's, to process company certifications and the additional certification and notification fees. No fiscal impact is expected on local government agencies. The overall fiscal effect on small businesses is expected to be minimal or indeterminate.
Notice of Hearings
Health and Family Services
NOTICE IS HEREBY GIVEN that pursuant to Sections
146.40 (5) and
227.11 (2) (a), Stats., and interpreting s.
146.40, Stats., the Wisconsin Department of Health and Family Services will hold public hearings on its proposal to repeal and recreate ch.
HFS 129, relating to certification of programs for training and testing nurse assistants, home health aides, and hospice aides on the dates, times, and locations listed below.
Hearing Information
Date and Time
|
Location
|
June 12, 2008
9:00 AM –
11:00 AM
June 13, 2008
10:00 AM –
12:00 PM
June 16, 2008
11:00 AM –
1:00 PM
June 17, 2008
11:00 AM –
1:00 PM
|
Wilson Street State Office Bldg.
1 West Wilson Street
Room 950 A
Madison, Wisconsin
Southeastern Regional Office
819 North 6th Street
Room 40
Milwaukee, Wisconsin
Northcentral Technical College
Center for the Health Sciences Building – Auditorium
1000 West Campus Drive
Wausau, Wisconsin
Wisconsin Indianhead Technical
College
Room 174/176
1900 College Drive
Rice Lake, Wisconsin
|
The hearing site is fully accessible to people with disabilities. If you are hearing impaired, do not speak English or have circumstances that might make communication at a hearing difficult; you require an interpreter or a non-English large print or taped version of the proposed rules, contact the person at the address or telephone number given below at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.
Submission of Written Comments
Written comments may be submitted at the public hearing or submitted to the contact person listed below. Comments may also be made using the Wisconsin Administrative Rule Website at
http://adminrules.wisconsin.gov.
The deadline for submitting comments to the Department is 4:30 p.m. on June 24, 2008.
Copies of Proposed Rules
A copy of the full text of the rules and the fiscal estimate can be obtained at no charge from the Wisconsin Administrative Rules Website at http://adminrules. wisconsin.gov or by contacting the person listed below.
Agency Contact Person
Pat Benesh, Quality Assurance Program Spec-Senior
Division of Quality Assurance
1 West Wilson St. Room 1150
Madison, WI 53701
Phone: 608-264-9896
