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.
•
When renewal applications are received after the certification expiration date, charges the initial fee for the discipline plus a reinstatement fee that is double the certification fee (i.e., $50 worker fee plus $100 reinstatement fee) for reinstatement.
•
Requires a person to retake the initial training course for the discipline if the person's training certificate has been expired for more than one year without the person taking the required refresher.
Iowa: Ch.
155, Iowa Administrative Code –
•
Iowa DNR requires 10 days notice but does not charge a notification fee.
•
Regulates the removal or disturbance of asbestos that is friable or becomes friable (no minimum amount provided); does not differentiate between interior and exterior asbestos work.
•
Requires asbestos company certification if company conducts asbestos work for compensation.
•
Does not require certification for employees of companies that only conduct asbestos work in their own facilities, but does require training and compliance with regulations.
•
Requires training and certification for a person to conduct regulated asbestos work on schools, public and commercial buildings, except for residential buildings of fewer than 10 units.
•
Requires applicants for asbestos company certification to submit a description of personal protection activities.
Michigan: Act 135 of 1986, s.
338.3101-3319 and Act 440 of 1988, s.
338.3401-3418 –
•
Michigan Dept. of Labor and Economic Growth requires 10 days notice for projects removing in excess of 10 linear feet or 15 square feet and charges a notification fee that is 1% of project cost.
•
Requires training and certification for a person to perform asbestos demolition, renovation or encapsulation of friable asbestos materials on the premises of another entity.
•
Requires asbestos company certification for companies that remove or encapsulate friable asbestos for another entity.
•
Requires applicants for asbestos company certification to submit proof of workers' compensation insurance and a statement of whether they carry liability insurance.
•
Requires post-abatement air monitoring checks performed by a neutral party and a clearance level not exceeding 0.05 fibers per cubic centimeter at all asbestos abatement sites where there was a negative pressure enclosure involving 10 linear feet or 15 square feet or more of friable asbestos.
•
Imposes experience requirements for persons applying for asbestos management planner, project designer and inspector certifications.
•
Charges the initial certification fees for renewal applications received after the certification expiration date; otherwise charges renewal fees equal to one half the initial certification fees.
Minnesota: MR Ch. 4620.3000-3724 –
•
Minnesota Dept. of Health requires 5 days notice and charges 1% of the asbestos contract total or $35 for small residential projects. Minnesota also requires individual notifications as soon as possible before the beginning of each portion of a project covered under a 1-year blanket notice where asbestos removal over the course of the year is expected to exceed 160 square feet or 260 linear feet.
•
Requires training and certification for a person to perform asbestos work involving friable asbestos-containing material in amounts over 160 square feet, 260 linear feet or 35 cubic feet, or to perform asbestos work in residential buildings of 4 or fewer units involving friable asbestos-containing material over 6 square feet, 10 linear feet or 1 cubic foot.
•
Requires applicants for asbestos company certification to submit proof of workers' compensation insurance, to have a responsible person who is a certified supervisor, and to have a Minnesota business identification number.
•
Requires completion of a Minnesota-accredited training course (initial or refresher) before a person may be certified to conduct asbestos work in Minnesota.
•
Establishes experience and/or education requirements for all disciplines.
•
Requires an applicant to retake initial training when the renewal application is received after the certification expiration date.
•
Requires compliance with detailed work practice standards.
•
Requires indoor air monitoring and clearance air sampling for all interior asbestos projects.
•
Allows asbestos supervisors or workers to conduct air monitoring.
•
Ohio Dept. of Health requires 10 days notice and charges $65 per notice. The Ohio EPA charges $75 per notice plus an additional $3 per every 50 square feet or linear feet of asbestos removed or an additional $4 for every cubic yard of asbestos removed.
•
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.
