SB502: Bill Text

1997 Senate BILL 502

March 17, 1998 - Introduced by Joint Legislative Council. Referred to Committee on Health, Human Services, Aging, Corrections, Veterans and Military Affairs.

SB502,1,12 An Act to renumber 254.168 (1) to (7); to renumber and amend 254.166 (2) (c) and 254.168 (intro.); to amend 254.13 (2), 254.156, 254.162 (1) (intro.), 254.166 (1), 254.166 (2) (intro.), 254.17 (3) (b) 3. and (6) (c) and 254.174; to repeal and recreate 254.17 and 254.172; and to create 14.065 (3m), 20.435 (5) (fm), 234.495, 254.11 (4e), (4m), (4s), (5m), (8p) and (9g), 254.165, 254.166 (2) (c) 2. and 3., 254.166 (2) (e), 254.168 (2m), 254.171, 254.173, 254.177, chapter 606 and 901.055 of the statutes; relating to: lead hazard control, lead-bearing paint hazard reduction, use of oil overcharge funds for lead hazard reduction in dwellings, providing restricted immunity from civil liability to certain property owners, employes and agents, requiring the Wisconsin housing and economic development authority to promote certain loan programs, granting rule-making authority and making appropriations.

Analysis by the Legislative Reference Bureau

This bill is explained in the Notes provided by the joint legislative council in the bill.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Prefatory note: This bill was prepared for the joint legislative council's special committee on lead poisoning prevention and control. The bill requires owners of occupied dwellings constructed before January 1, 1950, to meet specified maintenance and treatment requirements unless their properties are found to be either lead-free or free of lead-bearing paint hazards. Owners of dwellings constructed on or after January 1, 1950, but before January 1, 1978, are permitted to have their properties inspected to determine whether any lead-bearing paint hazards exist and to follow the essential maintenance practices and lead hazard control requirements and agree to comply with the requirements for responding to notification of a child with lead poisoning which are set forth in the provisions of the bill relating to pre-1950 dwellings. The bill also requires the department of health and family services (DHFS) to inspect dwellings where children with a specified blood lead level reside or frequent.

The bill provides immunity from liability to property owners and their employes and agents for damages relating to lead poisoning or lead exposure if their property has received one of 3 types of certificates specified in the bill. There are 5 exceptions to this immunity from liability. In addition, a grace period on liability is provided to persons for the first 90 days after they become property owners, with an exception for hazards caused by the owner or his or her employes or agents.

The bill also contains provisions regarding admissibility of dust tests for the presence of lead in certain actions and proceedings, establishment of a state residential lead liability fund and use of oil overcharge funds for the reduction of lead hazards in dwellings in conjunction with energy conservation activities.

The bill amends current law to require, instead of permit, the DHFS to promulgate rules requiring facilities serving children under age 6 to obtain written evidence that the children have been tested for lead poisoning and to be inspected for lead hazards. Also, the bill requires the DHFS to promulgate rules relating to the conduct of lead inspections and certificates of lead-free status, abatement and lead hazard reduction; rules setting forth safe work practices to be followed and unsafe work practices to be avoided to prevent exposing occupants to lead hazards; and rules setting forth standard treatment measures that owners of dwellings built before 1950 must employ.

The bill creates a continuing general purpose revenue (GPR) appropriation in the DHFS budget of $2,500,000 in fiscal year 1998-99, to fund lead-bearing paint hazard reduction activities. Priority is given to grants and interest-free, deferred-payment loans to reduce lead hazards in housing and for the additional purposes of funding lead poisoning education and lead inspections and the expansion of lead poisoning prevention programs to additional counties.

The bill also directs the Wisconsin housing and economic development authority (WHEDA) to aggressively promote its home improvement loan program and rental improvement loan program with property owners whose properties contain lead paint as mechanisms for funding the elimination, abatement or control of lead-bearing paint. WHEDA is also directed to attempt to make loans of $5,000,000 per year in total under the 2 programs for this purpose.

Further details regarding the provisions of the bill are contained in the notes that follow the Sections of the bill.

In preparing the bill, the special committee adopted the following preamble:

The special committee on lead poisoning prevention and control recognizes that lead poisoning is a significant public health hazard, having a major impact on young children. High levels of lead in the blood of young children can cause permanent nervous system damage and even in relatively low levels can cause significant nervous system effects, such as reducing intelligence and attention span, reading and learning disabilities and behavior problems.

While steps have been taken to reduce children's exposure to lead through elimination or reduction of lead in gasoline, cans and pipes and through a ban on lead in paint beginning in 1978, there is still a significant potential for exposure from lead-bearing paint in pre-1978 housing. The potential for exposure is highest in pre-1950 housing, but is also present in housing that was developed between 1950 and 1978, a period when alternatives to lead-bearing paint were becoming available, but were not required to be used.

To address this public health hazard, the special committee is recommending a multifaceted approach, including development of lead-bearing paint housing standards and providing incentives for property owners to meet those standards through limiting their potential liability and increasing the availability of insurance coverage.

SB502, s. 1 Section 1. 14.065 (3m) of the statutes is created to read:

SB502,3,5 14.065 (3m) Any proposal submitted under sub. (3) after the effective date of this subsection .... [revisor inserts date], shall provide for the expenditure of all available oil overcharge funds for the reduction of lead hazards in dwellings that is done to allow for and in conjunction with energy conservation activities.

Note: Current s. 14.065 provides for expenditure of oil overcharge funds, which are defined as "any oil overcharge restitution funds which the federal government disburses to this state under any act of congress, court order or administrative action". That section requires the governor to submit to the legislature a proposal for expenditure of the funds. That section also provides for standing committee review of the proposal and final action on the proposal by the joint committee on finance.

This bill provides that any such proposal submitted after the day after publication of the bill must provide for the expenditure of all available oil overcharge funds for the reduction of lead hazards in dwellings that is done to allow for and in conjunction with energy conservation activities.

SB502, s. 2 Section 2 . 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

SB502, s. 3 Section 3 . 20.435 (5) (fm) of the statutes is created to read:

SB502,4,4 20.435 (5) (fm) Lead poisoning prevention program. As a continuing appropriation, the amounts in the schedule for the lead poisoning prevention program under s. 254.165.

Note: Creates a continuing GPR appropriation in the DHFS budget for purposes related to lead paint hazard reduction, with priority given for grants and interest-free, deferred-payment loans to reduce lead paint hazards in housing. In addition, funds are to be utilized for lead poisoning education and lead inspections and to expand lead poisoning prevention programs to additional counties. For fiscal year 1998-99 (the 2nd year of the 1997-99 biennium), $2,500,000 GPR is appropriated.

SB502, s. 4 Section 4. 234.495 of the statutes is created to read:

SB502,4,11 234.495 Promotion of programs. The authority shall aggressively promote its home improvement loan program and rental improvement loan program with property owners whose properties contain lead-bearing paint for use in funding the elimination, abatement or control of lead-bearing paint. The authority shall attempt to make loans of at least $5,000,000 per year in total under the 2 programs for this purpose.

Note: Directs WHEDA to aggressively promote its current home improvement loan program and rental improvement loan programs with property owners whose properties contain lead-bearing paint as mechanisms for funding the elimination, abatement or control of lead-bearing paint. WHEDA must attempt to make loans of at least $5,000,000 per year in total under the 2 programs for that purpose.

SB502, s. 5 Section 5. 254.11 (4e), (4m), (4s), (5m), (8p) and (9g) of the statutes are created to read:

SB502,5,6 254.11 (4e) "Certificate of abatement" means a certificate issued by a certified independent risk assessor which documents that the assessor has found that all lead-bearing painted surfaces in a dwelling or unit have been properly abated, as defined by the department by rule.

SB502,5,10 (4m) "Certificate of lead-free status" means a certificate issued by a certified independent lead inspector or a certified independent risk assessor which documents that the inspector or assessor has found that a dwelling or unit contains no lead-bearing paint on any interior or exterior surface, component or fixture.

SB502,5,14 (4s) "Certificate of lead hazard reduction" means a certificate issued by a certified independent risk assessor which documents that the assessor has found that all lead-bearing paint that is a lead hazard in a dwelling or unit has been properly controlled.

SB502,5,18 (5m) "Elevated blood lead level" means a level of lead in blood that is 20 or more micrograms per 100 milliliters of blood as confirmed by one venous blood test or that is 15 or more micrograms per 100 milliliters of blood as confirmed by 2 consecutive venous blood tests that are performed at least 3 months apart.

SB502,5,20 (8p) "Lead hazard screen" has the meaning specified by rule by the department.

SB502,5,22 (9g) "Lead risk assessment" has the meaning specified by rule by the department.

Note: New s. 254.11 (4e), (4m) and (4s) define the terms "certificate of abatement", "certificate of lead-free status" and "certificate of lead hazard reduction". These terms and definitions are based on the terms and descriptions of these terms used in the report of the lead-based paint hazard reduction and financing task force, entitled Putting the Pieces Together: Controlling Lead Hazards in the Nation's Housing (known as the Housing and Urban Development (HUD) task force report). Under Section 24 of the bill, the requirements for the issuance, maintenance and revocation of these certificates must be set forth in rules promulgated by the DHFS.

New s. 254.11 (5m) defines the term "elevated blood lead level", using the current federal centers for disease control and prevention (CDC) recommended threshold for the level at which an environmental investigation of a child's dwelling must be conducted.

New s. 254.11 (8p) and (9g) define the terms "lead hazard screen" and "risk assessment" as having the meaning specified by the DHFS by rule.

SB502, s. 6 Section 6. 254.13 (2) of the statutes is amended to read:

SB502,6,8 254.13 (2) A person who screens a child under 6 18 years of age for lead poisoning or lead exposure under this subchapter, or any rule promulgated under this subchapter, shall report the results of the screening to the department within the time period for reporting by rule. The department shall promulgate rules specifying the form of the reports required under this subsection. A person making a report under this subsection in good faith is immune from civil or criminal liability that might otherwise be incurred from making the report.

Note: Amends current law to require a person who screens a child under age 18, instead of age 6, for lead poisoning to report the results to the DHFS.

SB502, s. 7 Section 7. 254.156 of the statutes is amended to read:

SB502,7,2 254.156 (title) Definition Definitions of elevated blood lead level, lead-bearing paint and lead poisoning or lead exposure. Notwithstanding s. 254.11 (intro.), (5m), (8) and (9), whenever the centers for disease control and prevention of the federal department of health and human services specifies recommends a standard for the determination of an elevated blood lead level for which an environmental investigation is required that differs from the definition in s. 254.11 (5m) or recommends a standard for the determination of lead-bearing paint or lead poisoning or lead exposure that differs from that specified in s. 254.11 (8) or (9), the department shall promulgate a rule defining "elevated blood lead level", "lead-bearing paint" or "lead poisoning or lead exposure" to correspond to the specification recommendation of the centers for disease control and prevention. Rules promulgated under this section supersede s. 254.11 (5m), (8) and (9) with respect to the requirements of this subchapter.

Note: Amends current law to require the DHFS to promulgate a rule to change the definition of "elevated blood lead level" whenever the CDC changes its recommended definition for the level at which an environmental investigation must be conducted.

SB502, s. 8 Section 8. 254.162 (1) (intro.) of the statutes is amended to read:

SB502,7,10 254.162 (1) Institutions and programs providing services to children under 6 years of age. (intro.) The department may shall promulgate rules requiring the following institutions and programs to obtain written evidence that each child under 6 years of age participating in the institution or program has obtained a lead screening, or is exempt from obtaining one, under the recommended lead screening levels and intervals contained in the rules promulgated by the department under s. 254.158, if any, within the time periods specified by the department:

Note: Amends current law to require, instead of permit, the DHFS to promulgate rules requiring specified institutions and programs which serve children (e.g., day care centers) to obtain written evidence that each child under age 6 participating in the institution or program has obtained a lead screening.

SB502, s. 9 Section 9. 254.165 of the statutes is created to read:

SB502,7,14 254.165 Lead poisoning prevention program. (1) Except as provided in sub. (2), from the appropriation account under s. 20.435 (5) (fm), the department shall distribute funds for all of the following:

SB502,7,17 (a) Lead-bearing paint hazard reduction, with a priority for grants and interest-free, deferred-payment loans for the reduction of lead-bearing paint hazards in housing.

SB502,7,18 (b) Lead poisoning education.

SB502,7,19 (c) Lead inspections.

SB502,7,21 (d) The expansion of lead poisoning prevention programs to counties that do not have those programs.

SB502,8,11 (2) Before distributing funds under sub. (1), the department shall, each fiscal year, submit to the joint committee on finance a detailed plan for the distribution of the funds. In developing the plan, the department shall consult with the technical advisory committee under s. 254.174, the subunit of the department of administration that deals with housing and the Wisconsin housing and economic development authority. The department may proceed with distribution of the funds if, within 14 days after the submission, the joint committee on finance does not schedule a meeting for the purpose of reviewing the department's plan. If, within 14 days after the submission, the joint committee schedules a meeting for the purpose of reviewing the plan, the department may not distribute funds under sub. (1) until the joint committee approves the plan.

Note: Requires DHFS to develop and submit a detailed plan to the legislature's joint committee on finance prior to distributing funds from the newly created GPR appropriation in the bill. In developing the plan, DHFS must consult with the technical advisory committee created to advise the department on lead poisoning rules as well as the department of administration's division of housing and WHEDA.

SB502, s. 10 Section 10. 254.166 (1) of the statutes is amended to read:

SB502,9,11 254.166 (1) The department may, after being notified that an occupant of a dwelling who is under 6 18 years of age has blood lead poisoning or lead exposure, present official credentials to the owner or occupant of the dwelling or premises, or to a representative of the owner, and request admission to conduct a lead inspection of the dwelling or premises. If the department is notified that an occupant of a dwelling who is under 6 years of age has an elevated blood lead level, the department shall conduct a lead inspection of the dwelling or premises. The lead inspection shall be conducted during business hours, unless the owner or occupant of the dwelling or premises consents to an inspection during nonbusiness hours or unless the department determines that the dwelling or premises presents an imminent lead hazard. The department shall use reasonable efforts to provide prior notice of the lead inspection to the owner of the dwelling or premises. The department may remove samples or objects necessary for laboratory analysis to determine the presence of a lead hazard in the dwelling or premises. The department shall prepare and file written reports of all inspections conducted under this section and shall make the contents of these reports available for inspection by the public, except for medical information, which may be disclosed only to the extent that patient health care records may be disclosed under ss. 146.82 to 146.835. If the owner or occupant refuses admission, the department may seek a warrant to inspect the dwelling or premises. The warrant shall advise the owner or occupant of the scope of the inspection.

Note: Under current law, the DHFS, after being notified that an occupant of a dwelling who is under age 6 has blood lead poisoning or lead exposure, may inspect the dwelling or premises. "Lead poisoning or lead exposure" means a blood lead level of w 10 ug/dL (micrograms per deciLiter). This Section amends current law to permit the DHFS to inspect a dwelling or premises after being notified that a child who is under age 18 has lead poisoning or lead exposure. This Section also amends current law to require the DHFS to conduct a lead inspection of a dwelling which the DHFS has been notified has an occupant who is under age 6 and who has an elevated blood lead level (one venous blood lead level test w 20 ug/dL or 2 consecutive venous tests w 15 ug/dL).

SB502, s. 11 Section 11 . 254.166 (2) (intro.) of the statutes is amended to read:

SB502,9,14 254.166 (2) (intro.)  If the department determines that a lead hazard is present in any dwelling or premises, the department may do any shall do all of the following:

SB502, s. 12 Section 12 . 254.166 (2) (c) of the statutes is renumbered 254.166 (2) (c) (intro.) and amended to read:

SB502,9,19 254.166 (2) (c) (intro.) Notify all of the occupant occupants of the dwelling or premises or that person's representative that those persons' representatives of all of the following:

SB502,10,2 1. That a lead hazard is present on or in the dwelling or premises and may constitute a health hazard.

SB502, s. 13 Section 13 . 254.166 (2) (c) 2. and 3. of the statutes are created to read:

SB502,10,5 254.166 (2) (c) 2. The results of any lead inspections conducted on or in the dwelling or premises.

SB502,10,6 3. Any actions taken to reduce or eliminate the lead hazard.

SB502, s. 14 Section 14 . 254.166 (2) (e) of the statutes is created to read:

SB502,10,11 254.166 (2) (e) If an order is issued under par. (d), conduct or require a certified independent lead inspector or certified independent risk assessor to conduct a visual inspection, a check of work completed and dust tests for the presence of lead to ensure compliance.

Note: Section 11 amends current law to require, instead of permit, the DHFS to do all of the following if it determines a lead hazard is present in any dwelling or premises:

1. Cause to be posted in a conspicuous place upon the dwelling or premises a notice of the presence of a lead hazard.

2. Inform the local health officer of the results of the lead inspection and provide recommendations to reduce or eliminate the lead hazard.

3. Notify the occupant of the dwelling or premises that a lead hazard is present in the dwelling or premises.

4. Notify the owner of the dwelling or premises of the presence of a lead hazard.

Sections 12 and 13 amend the provision described in item 3., above, to require the DHFS to notify all of the occupants of a dwelling that a lead hazard is present. In addition, under the bill, the DHFS must notify the occupants of the results of any lead inspections conducted on or in the dwelling or premises and any actions taken to reduce or eliminate the lead hazard.

Section 14 also requires the DHFS to conduct or require a lead inspector or risk assessor to conduct a visual inspection, a check of work completed and dust tests for the presence of lead to ensure compliance with any order issued by the DHFS requiring reduction or elimination of a lead hazard.

SB502, s. 15 Section 15. 254.168 (intro.) of the statutes is renumbered 254.168 (1) (intro.) and amended to read:

SB502,11,2 254.168 (1) (intro.) Subject to the limitation under s. 254.174, the department may promulgate rules that, after June 30, 1998, require any of the following facilities to have periodic lead inspections at intervals determined by the department or to otherwise demonstrate that the facility does not contain a lead hazard, if any part of the facility was constructed after January 1, 1950, but before January 1, 1978:

SB502, s. 16 Section 16. 254.168 (1) to (7) of the statutes are renumbered 254.16 (1) (a) to (g).

SB502, s. 17 Section 17. 254.168 (2m) of the statutes is created to read:

SB502,11,10 254.168 (2m) Subject to the limitation under s. 254.174, the department shall promulgate rules that, after June 30, 1998, require any of the facilities specified in sub. (1) (a) to (g) to have periodic lead inspections at intervals determined by the department or to otherwise demonstrate that the facility does not contain a lead hazard, if any part of the facility was constructed before January 1, 1950.

Note: Amends current law to require, instead of permit, the DHFS to promulgate rules that, after June 30, 1998, require specified facilities serving children to have periodic lead inspections if any part of the facility was constructed before January 1, 1950. As permitted under current law, the DHFS may promulgate such rules for facilities constructed after January 1, 1950 but before January 1, 1978.

SB502, s. 18 Section 18. 254.17 of the statutes is repealed and recreated to read: