Rule-Making Notices
Notice of Hearing
Health Services
NOTICE IS HEREBY GIVEN that pursuant to ss.
250.04 (7),
250.041,
254.115,
254.15,
254.167,
254.172,
254.176 (1) and
(3),
254.178 (2) and
254.179, Stats., the Department of Health Services will hold a public hearing on emergency and proposed permanent rules to consider Chapter
DHS 163, relating to requirements for conducting lead-safe renovation activities in pre-1978 (target housing) and child-occupied facilities, and affecting small businesses.
Hearing Information
Date and Time
|
Location
|
November 18, 2009
1:00 p.m. - 3:00 p.m.
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Department of Health Services
1 West Wilson Street
Room B139
Madison, Wisconsin
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Accessibility
English
DHS is an equal opportunity employer and service provider. If you need accommodations because of a disability or need an interpreter or translator, or if you need this material in another language or in an alternate format, you may request assistance to participate by contacting Shelley Bruce at 608-266-9711. You must make your request at least 7 days before the activity.
Spanish
DHFS es una agencia que ofrece igualdad en las oportunidades de empleo y servicios. Si necesita algún tipo de acomodaciones debido a incapacidad o si necesita un interprete, traductor o esta información en su propio idioma o en un formato alterno, usted puede pedir asistencia para participar en los programas comunicándose con Shelley Bruce al número 608-266-9711. Debe someter su petición por lo menos 7 días de antes de la actividad.
Hmong
DHFS yog ib tus tswv hauj lwm thiab yog ib qhov chaw pab cuam uas muab vaj huam sib luag rau sawv daws. Yog koj xav tau kev pab vim muaj mob xiam oob qhab los yog xav tau ib tus neeg pab txhais lus los yog txhais ntaub ntawv, los yog koj xav tau cov ntaub ntawv no ua lwm hom lus los yog lwm hom ntawv, koj yuav tau thov kev pab uas yog hu rau Shelley Bruce ntawm 608-266-9711. Koj yuav tsum thov qhov kev pab yam tsawg kawg 7 hnub ua ntej qhov hauj lwm ntawd.
Agency Contact Person
Shelley Bruce, Asbestos & Lead Certification Supervisor
DHS Division of Public Health
Asbestos & Lead Section
1 W. Wilson St., Room 137
Madison WI 53703
Phone: 608-267-0928 Fax: 608-266-9711
Submission of Written Comments
Comments may be submitted to the agency contact person listed above or to the Wisconsin Administrative Rules Website at
www.adminrules.wisconsin.gov until November 19, 2009, 4:30 p.m.
Copies of the Rule and Fiscal Estimate
A copy of the rules and the full fiscal estimate may be obtained from the department by downloading the documents from
www.adminrules.wisconsin.gov or by contacting:
Shelley Bruce, Asbestos & Lead Certification Supervisor
DHS Division of Public Health
Bureau of Environmental & Occupational Health
Asbestos & Lead Section
1 W. Wilson St., Room 137
Madison WI 53703
Phone: 608-267-0928 Fax: 608-266-9711
Analysis Prepared by the Department of Health Services
Statutes interpreted
Statutory authority
Explanation of agency authority
1.
Wis. Stat. s.
227.11 (2) (a) provides state agencies with general rulemaking authority to promulgate rules interpreting the provisions of any statute enforced or administered by the agency if the agency considers it necessary to effectuate the purpose of the statute.
2.
Wis. Stat. s.
250.04 (7) authorizes fines of $10 to $100 for violations of rules promulgated by department related to any matter under its supervision that are necessary to provide efficient administration and to protect health. This includes lead hazard reduction.
3.
Wis. Stat. s.
250.041 authorizes the department to issue, deny or suspend certifications under Wis. Stat. §
254.176 for a person who performs lead hazard reduction or a lead management activity, or who supervises these activities.
4.
Wis. Stat. s.
254.172 authorizes the department to promulgate rules governing lead hazard reduction that it determines are consistent with federal law.
5.
Wis. Stat. s.
254.176 (1) and
(2) authorizes the department to establish to certification requirements by rule, with the exception of individuals who are licensed, certified or registered by the Department of Commerce (Comm) under Wis. Stat. ch.
145, for certain plumbing and fire protection system activities, within the scope of their Comm credential; and companies that are registered with the Comm under Wis. Stat. §
101.178, to perform heating, ventilating or air conditioning installation or servicing activities, within the scope of their Comm registration. In my opinion these limited certification exceptions do not affect application and enforcement of the lead renovation training and safe practice requirements for these individuals and companies. The DHS certification process requires applications and fees that are separate and distinct from any training required.
6.
Wis. Stat. s.
254.15 directs the department to develop and implement a comprehensive statewide lead poisoning or lead exposure and treatment program that includes rules for lead hazard reduction requirements, and related certification, accreditation and approval requirements. Wis. Stat. §
254.115 authorizes the denial, nonrenewal and revocation of a certification in specified circumstances.
7.
Wis. Stat. s.
254.167 authorizes the department to promulgate rules to specify procedures for investigating, testing or sampling painted, varnished or other finished surfaces that may contain lead.
8.
Wis. Stat. s.
254.178 directs the department to promulgate rules establishing requirements for accreditation of lead training courses and approval of lead instructors.
9.
Wis. Stat. s.
254.179 directs the department to promulgate rules to establish the standards for a premises, dwelling or dwelling unit to be issued a certificate of lead-free status.
Related statute or rule
Plain language analysis
The rules under this order require individuals, companies, and government agencies who perform or offer to perform renovation activities to be certified by the department, be trained and have appropriately trained staff, to distribute renovation information, keep records, and to follow the appropriate work practices when conducting renovation activities in dwellings constructed prior to 1978 (target housing) and child-occupied facilities, including common areas, constructed before 1978 that provide child care services, preschools, or public or private schools. The rules also require that training providers implement training course curriculum for renovation training and receive renovation training course accreditation from the department before offering renovation training courses and that course instructors meet the qualifications and receive approval before teaching renovation training courses.
The rules promulgated under this order are similar to the requirements under 40 §§ CFR 745.80 to 745.91 and
745.225, the EPA requirements for training, certification, work practices and recordkeeping to perform renovation activities, except that unlike current EPA regulation,
40 CFR § 745.82 (c), the rules under this order do not permit a property owner to exempt a contractor from following work practice requirements by signing an acknowledgement that no pregnant woman or child under age 6 resides in the dwelling. The department determined not to include a similar provision in this order in anticipation of EPA's agreement under an August 2009 negotiated settlement to issue a notice of proposed removal of this provision by October 20, 2009, and promulgate final rules by April 22, 2010.
The rules apply to an estimated 756,000 pre-1978 Wisconsin facilities, 754,000 of which are dwelling units, either rental housing, owner-occupied housing, or housing that meets the definition of child-occupied facility. Approximately 2,000 facilities are child-occupied facilities in pre-1978 public or commercial buildings. Based on EPA and census data, the department estimates that annually there will be approximately 35,000 children under age 6 affected by the rule. These children are projected to receive considerable benefits due to this regulation. Since 1996, more than 44,000 Wisconsin children have been identified as lead poisoned. Nearly one in every 20 children who entered the Wisconsin school system in the fall of 2006 was known to have been lead poisoned. The rules promulgated under this order are intended to minimize exposure to lead-based paint hazards created during renovation, repair, and painting activities in target housing and child-occupied facilities.
Comparison with federal regulations
40 CFR §§ 745.80 to
745.91, Subpart E, relating to residential property renovation establishes requirements for performing renovation activities in residential dwellings and child-occupied facilities, including training of renovators and dust sampling technicians, certification of renovators, dust sampling technicians and renovation firms, provision of pre-renovation information to owners and occupants, renovation work practices, and recordkeeping.
40 CFR § 745.225, Subpart L, relating to accreditation of training programs establishes accreditation requirements for training courses that renovators and dust sampling technicians must complete for certification, including curriculum contents and the application and approval process for courses.
The department's rules under ch.
DHS 163 are consistent with the EPA requirements under
40 CFR §§ 745.80 to
745.91 and
745.225, and meet the requirements for EPA authorization under
40 CFR §§ 745.320 to
329 to implement and enforce the renovation, repair and painting requirements in Wisconsin in lieu of the EPA enforcing federal regulations in Wisconsin.
Comparison with rules in adjacent states
Illinois
Illinois does not have a lead renovator rule but is in the early study phase for regulatory development, including reviewing statutory authority and rulemaking options. A final renovation rule is expected sometime in late 2011.
Iowa
Iowa has a rule that requires pre-renovation education (lead renovation information distribution to owners/occupants), which is one subsection of the EPA renovation rule under
40 CFR 745 Subpart E. Iowa is in the final stages of full renovation rule development and plans to have an emergency renovation rule published by November 18, 2009.
