Notice of Hearings
Health and Family Services
NOTICE IS HEREBY GIVEN that pursuant to ss.
254.20 and
254.21, Stats., and interpreting ss.
254.20 and
254.21, Stats., the Wisconsin Department of Health and Family Services will hold a public hearing on proposed rules repealing and recreating ch.
HFS 159, relating to certification and training course requirements for asbestos activities.
Hearing Information
Date and Time
|
Location
|
June 17, 2008
1:00 p.m. to
3:00 p.m.
|
DHFS Northeast Wisconsin
Regional Office
Room 152B
200 N. Jefferson Street
Green Bay, WI 54301
|
June 18, 2008
9:00 a.m. to
11:00 a.m.
|
DHFS Western Regional Office
Room 123
610 Gibson Street
Eau Claire, WI 54701
|
June 19, 2008
1:00 p.m. to
3:00 p.m.
|
West Allis Public Library
Constitution Room
7421 W. National Avenue
West Allis, WI 53214
|
June 20, 2008
10:00 a.m. to
12:00 p.m.
|
Dept. of Health and Family
Services
Room B139
1 W. Wilson Street
Madison, WI 53702
|
The hearing sites are 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 30, 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 Wis. Administrative Rules Website at
http://adminrules.wisconsin.gov or by contacting the person listed below.
Agency Contact Person
Shelley Bruce
Department of Health & Family Services
Asbestos and Lead Section
1 W Wilson St, Room 137
PO Box 2659
Madison WI 53701-2659
Phone: 608-267-0928, or
608-266-1511 (TTY) if you are hearing impaired
Fax: 608-266-9711
Small Business Regulatory Coordinator
Rosie Greer
(608) 266-1279
Analysis Prepared by the Dept. of Health and Family Services
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
250.04 (1), Stats., gives the Department general supervision throughout the state of the health of citizens and authorizes the Department to enter and inspect private property. Section
250.04 (2), Stats., gives the Department all powers necessary to fulfill its public health duties and to bring action in the courts for the enforcement of public health statutes and rules.
Section
254.20, Stats., authorizes the Department to promulgate rules establishing certification requirements for any person who conducts or supervises any asbestos abatement or management activity. Section
254.20 (5), Stats., authorizes the Department to promulgate rules to set certification fees.
Section
254.20 (9), Stats., authorizes the Department to promulgate any rule it deems necessary to administer the asbestos certification requirements under section
254.20, Stats.
Section
254.21, Stats., authorizes the Department to promulgate rules regulating asbestos in schools.
Related statute or rule
Chapter
NR 447, Wis. Adm. Code, Control of Asbestos Emissions.
Chapter
HFS 163, Wis. Adm. Code, Certification for the Identification, Removal and Reduction of Lead-Based Paint Hazards.
Plain language analysis
Chapter
HFS 159 establishes certification and training accreditation requirements for persons who perform asbestos abatement or management activities. The department proposes to repeal and recreate ch.
HFS 159 to achieve the following goals:
Increase program revenues. When chapter HFS 159 was promulgated in 1988, fees were established to implement asbestos training and certification requirements. Fees have not been adjusted since 1988 and are no longer sufficient to support the program. To provide needed program funding, the Department proposes the following additional fees:
•
An increase in individual certification fees of $25 per discipline.
•
New fees for company certification - $100 for exterior abatement companies, $200 for other companies.
•
New fees for asbestos project notification - $50 for 2-day or more notice, $100 for less than 2-day notice.
•
New fee for principal instructor approval - $50.
•
Revised training course fees - application fee of $200 per course training day, annual accreditation fees of $250 per refresher course and $900 per initial course.
Distribute fees so that persons using more services/resources pay a greater share of program operating costs. Fees for training courses will be assessed annually rather than once to better offset the cost of Department resources required to review and audit training programs on a regular basis. Certification and project notification fees for asbestos companies will be added so that companies share the regulatory burden with certified individuals, since companies make many of the compliance decisions for the work they perform. Company fees will help offset the cost of Department work sites inspections. More active companies will pay a greater share of notification fees than less active companies.
Increase options and flexibility for individuals and companies. The proposed rule would:
•
Allow an individual to work with provisional certification after the individual has completed training and submitted a certification application.
•
Reduce initial training and certification requirements for exterior supervisors from 5 days to 2 days and for exterior workers from 4 days to 1 day.
•
Reduce annual refresher training requirements for exterior supervisors from 4 hours to 2 hours and for exterior workers from 4 hours of training from an accredited training provider to a requirement for annual update training that may be provided by the employer or other provider.
•
Shorten the project notification requirement from 10 days prior notice to 2 days or less notice.
•
Limit the types of projects for which the Department must be notified to generally projects for which notification to the WI-DNR under ch.
NR 447 is not required.
Reduce paperwork. Under most circumstances, the proposed rule eliminates the current requirement that a company submit asbestos project notifications to both DHFS and DNR, as the company would only submit notification to one agency depending on the size or type of project.
Better protect employees and building occupants. The proposed rule would require persons be certified before conducting regulated asbestos work in any structure except the person's own single-family house. This would better protect both workers and occupants of small rental apartment buildings, because the current rule allows an owner to use untrained, uncertified employees to do asbestos work in residential buildings with fewer than 10 units, and this work poses a substantial risk that the workers will be exposed to asbestos and buildings in which others live will be contaminated.
In addition, the proposed rules would require an abatement company to develop an occupant protection plan and post it onsite whenever conducting abatement in an occupied building. The plan would outline the measures the company would take to ensure proper containment of asbestos during the abatement project. This would help occupants determine if the contractor was working safely and following the plan.
Assist schools in complying with federal AHERA regulations. The proposed rule would require a school to annually submit contact information for its designated asbestos coordinators (required under EPA regulations) to facilitate better communication between the school and the Department regarding asbestos issues.
Improve worker compliance options and safeguards. The proposed rule would require training course providers to collect additional identifying information on students attending training courses. Specifically, training providers would be required to review student ID's, take and print student photos on training certificates, and electronically submit student photos and class training rosters to the Department. This will ensure that the person who attends training is the same person who applies for and receives certification from the department.
Individuals entering Wisconsin from other states would be required to take an initial or refresher training course in Wisconsin to qualify for Wisconsin certification. This would help control individuals who come into Wisconsin and attempt to perform regulated asbestos work without proper training based on falsified or unreliable training documents. The Department has encountered several individuals with out-of-state training certificates for English language courses, who did not speak English well enough to have understood the training they took. Wisconsin has accredited asbestos worker training courses in both English and Spanish.
The proposed rule would also require that an individual conducting regulated asbestos work be associated with a certified asbestos company. The certified company would be responsible for ensuring proper certification of individuals conducting asbestos work for it, properly supervising its asbestos abatement work sites, notifying the Department of its regulated abatement activities, and maintaining records of its regulated asbestos activities. Enforcement actions could be taken against the company for failure to ensure compliance with these requirements.
Comparison with federal regulations
The Federal Asbestos Hazard Emergency Response Act (AHERA), signed into law in 1986 as Title II of the Toxic Substances Control Act (TSCA), establishes rules and guidance for the management of asbestos-containing materials in schools, grades K-12. To accomplish this, AHERA:
•
Promulgates regulations providing the framework for addressing asbestos hazards in schools.
•
Directs K-12 schools to conduct asbestos inspections, develop management plans for asbestos in their schools and conduct asbestos response actions in a timely manner.
•
Directs states to develop accreditation and certification programs for inspectors, management planners, project designers and abatement contractors based on EPA's model accreditation plan.
In 1987, the EPA published the Asbestos Containing Materials in Schools regulation,
40 CFR Part 763, Subpart E, to implement the provisions of AHERA. The Asbestos School Hazard Abatement Reauthorization Act (
ASHARA) of 1992 extended the AHERA regulations to other public and commercial buildings, including multi-family residences. Subsequent revisions to Subpart E made in 1994 created Appendix C, the Asbestos Model Accreditation Plan, including the requirements under which EPA approved state asbestos accreditation and certification programs. Appendix C to Subpart E established federal training and certification requirements for persons conducting asbestos abatement and management activities in buildings, and the minimum training course requirements for five disciplines: asbestos supervisor, asbestos worker, asbestos inspector, asbestos management planner and asbestos project designer. The Department is approved by EPA to administer Wisconsin's asbestos certification and training accreditation program under Appendix C in lieu of EPA administering the federal program in Wisconsin.
The following additional federal EPA regulations also apply to asbestos work:
-
40 CFR 763, Subpart G, asbestos worker protection for public employees.
-
40 CFR 61, Subpart M, National Emission Standards For Hazardous Air Pollutants (NESHAP). The Department of Natural Resources administers the EPA-delegated NESHAP program in Wisconsin.
The following federal OSHA regulations apply to asbestos work:
-
29 CFR 1910, which provides standards for asbestos work in general industry.
Comparison with rules in adjacent states
Comparison States: Illinois, Iowa, Michigan, Minnesota and Ohio. Wisconsin is located in EPA Region 5 along with Illinois, Indiana, Michigan, Minnesota and Ohio. Since Ohio has a more recently revised asbestos rule than any of the adjacent states, it has been included in this comparison.
Comparison of Certification and Accreditation: All of the comparison states require certification of asbestos companies and individual certifications for asbestos worker, asbestos supervisor, asbestos inspector, asbestos management planner (except Ohio) and asbestos project designer disciplines. Some states certify additional disciplines, such as asbestos project manager (Illinois), and asbestos air sampler (Illinois, Ohio). Wisconsin currently certifies asbestos roofing supervisors and workers, which none of the other states do, and proposes replacing these disciplines with exterior supervisor and exterior worker disciplines.
All the comparison states, except Iowa, approve and accredit asbestos training courses and charge application and annual course accreditation fees to training providers. All of the comparison states, except Iowa, charge annual fees for accrediting training courses.
Certification and Accreditation Fee Comparisons: All of the comparison states charge annual fees for certifying companies and individuals conducting asbestos work. All, except Iowa, charge annual fees for accrediting training courses. Wisconsin's current rule requires only a one-time accreditation fee for training courses ($750 for initial and $250 for refresher). See Table 1 below for state comparisons.
Table 1: Comparison of State Fees
States
|
Iowa
|
Illinois
|
Minnesota
|
Michigan
|
Ohio
|
Wisconsin
|
Regulation
|
Ch. 155, IAC
|
77 IAC
Part 855
|
MR Ch. 4620.3000-3724
|
Act 135 of 1986
s. 338.3101-3319
Act 440 of 1988
s. 338.3401-3418
|
OAC Ch. 3701-34
|
Ch. HFS 159, WAC
|
Year current fees were established:
|
1988
|
1988
|
1988
|
1996
|
2004
|
Proposed
|
Asbestos Companies – all types Annual Fees
|
|
$500
|
$750
|
$100
|
$200 (1-4 emps)
$400 (5+ emps)
|
$750
|
$100 (ext. co.)
$200 (all others)
|
Table 1: Comparison of State Fees - Continued
Individual Disciplines Annual Fees
|
Asbestos Inspector – Initial/Renewal
|
$20
|
$50
|
$100
|
$150 / $75
|
$200
|
$175
|
Asbestos Management Planner - Initial/
Renewal
|
$20
|
$50
|
$100
|
$150 / $75
|
NA
|
$125
|
Asbestos Project Designer – Initial/Renewal
|
$50
|
$50
|
$100
|
$150 / $75
|
$200
|
$175
|
Asbestos Supervisor – Initial/Renewal
|
$50
|
$75
|
$50
|
$50 / $25
|
$200
|
$125
|
Asbestos Worker – Initial/Renewal
|
$20
|
$25
|
$50
|
$50 / $25
|
$50
|
$75
|
|
$10
|
$15
|
$25
|
$25
|
$20-$200
|
$25
|
Course Application Initial Fees
|
Initial courses
|
NA
|
$500
|
$500
|
$400
|
$900
|
$200-$1,000
|
Refresher courses
|
NA
|
$500
|
$500
|
$400
|
$300
|
$200
|
Course Accreditation – Annual Annual Fees
|
Initial Courses
|
NA
|
$500
|
$250
|
$200
|
$900
|
$900
|
Refresher Courses
|
NA
|
$500
|
$250
|
$200
|
$300
|
$250
|
Project Notification Per Project Fees
|
Asbestos Projects
|
NA
|
$150 or
$300
|
1% of project cost or $35 if small project
|
1% of project cost
|
$65-$75 or more
|
$50-$100
|
Illinois: Title 77 Illinois Administrative Code, Part 855, “Asbestos Abatement For Public and Private Schools and Commercial and Public Buildings In Illinois" –
•
Illinois EPA requires 2 days notice for projects removing more than 160 square feet, 260 linear feet or 35 cubic feet of asbestos and charges a $150 notification fee and $300 for late notices.
•
Requires training and certification for a person before performing asbestos abatement of amounts of asbestos in excess of 3 square feet or 3 linear feet on the interior of commercial or public buildings, excluding residential buildings of fewer than 10 units.
•
Certifies additional disciplines of asbestos project manager and asbestos air sampler.
•
Imposes experience requirements for certifications in all disciplines except asbestos worker.
•
Requires certification for companies removing, enclosing or encapsulating friable asbestos containing building material in school, public or commercial buildings.
•
Requires applicants for asbestos company certification to carry a minimum of $1,000,000 liability insurance from an A-rated insurer, to have a designated certified supervisor, and to submit project information including standard operating procedures and employee protection plans.
•
Requires certification for additional disciplines of Air Monitor and Project Manager.
