WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT RULES |
The Wisconsin Department of Health Services (Department) proposes an order to repeal DHS 163.03 (41) (Note), (61) (Note), (82), (96m) (Note), (97) and (113); 163.10 (3) (c) 1. a., b., b. (Note), 2., a. & b., 3., a. & b., (5) (c) 1. & 2., (f), 1. & 2., (7) (b) 1. & 2., and (8) (b) 4.; 163.11 (2) (c) 2., (3) (a) 2. b. (Note), and (3m); 163.12 (1m), (2) (d) 1. & 2. and (3) (a) 1. am.; 163.13 (10) (a) & (b); 163.14 (1) (d) (Note), (e) 1., 2., a. to c., 4., 5., a. to d., (f), (k) 1. to 3., (5) (c) 9. e., (10) (b) & (c), (11) (g) 5. and (i) 6. (Note); 163.16 (2) and (3); 163.20 (9) (c) (Note); 163.24 (3) (b) 4. and 6.; 163.25 (3) (d) (Note), (10) (b) 7. a. to d. and 8.; 163.42 (1) (d), (e), (e) (Note 1) and (Note 2), (3) (c) 2. (Note), 5. (Note), (e) 4., (f) 3. and (g) 2. to amend DHS 163.02 (2) (Note); 163.03 (18) (Note), (29) (Note), (35), (41), (61), (63), (66), (74), (76), (96) (Note), (96m), (108), (109), 163.10 (1) (intro.), (1) (bm), (d) 2., (2) (b) 3., 4., (c), (4), (5) (a), (b), (d), (g) 1. a. to h., 2., 3., 4. (Note 1) & (Note 2), (6) (a), (b), (c) 1. & 2., (8) (a) and (Note), (b) (intro.), (c) 1. to 3., 4. a. to gm., 6. (Note 1) & (Note 2), and (d) 1.; 163.11 (3) (b) 2. a. and (4); 163.12 (1) (a), (am), (2) (intro.), (b), (3) (a) 1. g., 2. a., (b) 3. (Note 1) & (Note 2), (4) (a), (6) (a) 2., 2. (Note 1) & (Note 2) and (b) 1.; 163.13 (1), (2), (3) (a) 3., (b) 6., (c) 2., 7. (intro.), 7. g., 10., 12., (5) (d) 2. a., (6) (a) (intro.), (a) 1., 1. a. & b., (b) 1., 2., 2. a. to c., (7) (b), (c), (8) (title), (a), (b) (intro.), (c) (intro.), 4., 5. (Note), (9) (12) (title) and (intro.), (a) & (b); 163.14 (1) (h) (title), (i) and (Note), (j), (m) 3., (2) (title), (a), 1. to 4., (b) (title), (b) 1. (intro.) to 4., 4. (Note 1) & (Note 2), (c) (title), (c) 1. (intro.) to 3., 3. (Note), (3) (h), (i), (5) (c) 5. b. (Note), 6., 8. a. to c., 9. d., 11. e. (Note), (7) (d) (intro.), 1., 3., (g) 14., (8) (title), (8) (c) 1. to 3., (e) 6., 7. a. and b., (f) (intro.) , (9) (c) (intro.), 1. to 3., (e), (11) (a) 1., 2., 3., (f) 1., 4., (g) 1., 4., (h) 4., 6. and 7.; 163.15 (1) (a) 1., 2., (b) 1. and 2.; 163.16 (1); 163.20 (3), (4) (a), (c), (7) (b), (c) 2., (8) (a) (intro.), 1. r., zb., 2. (intro.), a., g., h., i., j, m., o., q., 3. (intro.), k., L., q., 4. (intro.), (b) (intro.), 1. f., 2. (intro.), v., w., 3. (intro.), b., s., (c) 7., (h) 1. and 5.,(8) (i), (9) (title), (am), (b), (c) (intro.) and 5.; 163.21 (1) (b) (Note), (2) (c), (3) (a) to (c), (5), (6) (c) 5., (g), (i) and (7) (b) (Note); 163.22 (1), (2) and (6) (c) (title); 163.23 (3) (a) and (5); 163.24 (1), (2) (c) 1., 2., (d), (3) (b) 3., (c) 1., 2., (e) 1. a., b., 2., 3. a. and b.; 163.25 (1), (2), (3) (title), (a) (title) and (Note), (b) (title), (c) (title), 2., and (d).;(6), (7) (title) and (intro.), (d), (9) (intro.), (e), (10) (a), (b) 2., 3., 5., and (11) (b) 3. to 5.; 163.31 (2) (b), (i), (4) (b), (g), (h), (i), (j), (L), (o), and (6) (a) & (b); 163.32 (1) (a), (b), (c), (e), (f), (2), (3), (5) (b); 163.40 (2) (c) 2., 5. a. and b.; 163.41 (2) (a) 2. c. (Note), e., 4. a., (f) 3. (Note); 163.42 (1), (a) to (c), (f) to (h), (2) (a) 2. c. (Note), e., (3) (b) 5. (Note), (d) 1., 4., 5., a., 6., and 6. f. (Note), and (f) 1.; to repeal and recreate DHS 163.10 (1) (e), (3) (c) 1. (intro.), a., b., and b. (Note), 2., 3. (intro), a., b., and b. (Note), (5) (c), (f), (7) (b), (8) (c) 4. h., (e) 1. and 2.; 163.11 (3) (a) 2. (intro.), a. and b.; 163.12 (2) (d); 163.13 (3) (c) (intro.), (10); 163.14 (1) (e), (k) and (Note), (7) (g) 15.. (10) (a), and (11) (j) 4. e. (Note); 163.20 (5), (6), and (8) (a) 1. a.; 163.23 (3) (d) (Note 1) and (Note 2); 163.24 (2) (b) 2. (Note 1) and (Note 2), (3) (b) 7. d. (Note 1) and (Note 2); 163.25 (7) (e) (Note) and (10) (b) 7.; 163.42 (1) (d) and (e); to create DHS 163.03 (13) (d), (88r), (91m), (102m), (107m), 163.10 (5) (a) (Note), (6) (am); 163.11 (3) (a) 2. c. to e., 163.13 (12) (c); 163.14 (2) (a) 5., (5) (c) 8. am., 9. cm., cr., (8) (f) 11.; 163.20 (8) (a) 2. u., (h) 7.; 163.31 (2) (m) to (o), (4) (Lm), and (t) to (w), relating to Certification For The Identification, Removal And Reduction Of Lead-Based Paint Hazards.
RULE SUMMARY
Statute interpreted
Statutory authority
Explanation of agency authority
The Department’s authority to promulgate the proposed rules is provided in statute. Section 227.11 (2) (a), Stats., authorizes the Department 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. Section 254.172, Stats., permits the Department to promulgate rules governing lead hazard reduction that the Department determines are consistent with federal law. Section 254.176, Stats., allows the Department to establish by rule certification requirements for any person who performs lead hazard reduction or lead management activity or who supervises the performance of any lead hazard reduction or lead management activity. Section 254.178, Stats., requires that the Department promulgate rules establishing requirements for the accreditation of lead training courses and approval of lead instructors. Section 254.179, Stats., requires the Department to promulgate rules for certifying dwellings as lead-safe or lead-free, including the standards that must be met for issuance of a lead-free or lead-safe certificate and the period of validity of the certificate. Related statute or rule
None
Plain language analysis
The Department is required to administer a comprehensive statewide lead poisoning prevention program that includes certification, accreditation and approval requirements. Requirements for lead certification, training course accreditation and instructor approval are established in Ch. DHS 163. The Department proposes to make the following revisions to the rule chapter: 1. Lead inspection is defined in Ch. DHS 163 and work practice standards are provided. The Department proposes to revise the rule to reflect language in 2015 Wisconsin Act 122 that exempts certain partial lead inspection activities from meeting lead inspection requirements under Ch. DHS 163. 2. Lead-bearing paint is defined in current rule to comply with the U.S. Consumer Product Safety Commission’s definition as set in 1978. 2015 Wisconsin Act 55, Section 4045p, amended the statutory definition of lead-bearing paint in § 254.11 (8). The Department proposes to amend the definition of “lead-based paint or lead-bearing paint” to comply with the statutory definition in Wis. Stat., Ch. 254. 3. In 2011, the U.S. EPA revised its Lead-Based Paint Poisoning Prevention in Certain Residential Structures regulation under 40 CFR Part 745 to require states authorized by EPA to administer a lead-based paint program in lieu of the EPA to meet a minimum standard for flexible remedies that includes the authority to assess civil penalties, including a maximum penalty authority for any violation in an amount no less than $5,000 per violation per day. At the time, the maximum penalty authority for lead-based paint violations in Wisconsin statute and rule was $1,000 per violation per day. 2015 Wisconsin Act 55, Section 4049d, increased the civil penalty authority for violations of lead paint regulations from up to $1,000 per violation per day to up to $5,000 per violation per day in compliance with the federal requirements. The Department proposes to amend the current maximum penalty in rule from $1,000 to $5,000 per violation per day in compliance with Wis. Stat., Ch. 254. 4. Current rule required the Department to process certification applications within 10 days of receipt. With the addition in 2010 of certification requirements for lead-safe renovation to the rule, certification workload has tripled with no additional staff position provided, making it difficult and at times impossible to routinely meet the 10 day requirement. A review of other Midwest states showed that no other state has such a self-limiting expectation. The Department proposes to revise the number of days it has to process certification applications from 10 days to 15 days.
5. The current asbestos rule, Ch. DHS 159, provides for provisional certification for applicants to be able to work using their training completion diploma until they receive their certification card. This allows a person to be able to work immediately once they have submitted their application. Provisional certification would effectively offset any harm potentially created by extending the Department’s certification processing time in item #4 from 10 to 15 days. The Department proposes to add provisional certification to Ch. DHS 163, similar to Ch. DHS 159. 6. Current certification language in Ch. DHS 163 is unnecessarily complicated and difficult to understand, even for employees charged with administering it. For instance, lead disciplines that require an initial state exam may only be for 1 year initially, but thereafter may be renewed for either 1 or 2 year lengths depending on the refresher training cycle, while others are only offered with a 2-year option. To help simplify and standardize the certification options for everyone, the Department proposes to eliminate all 1-year certifications and make all certifications good for 2 years, reducing the frequency of re-certifications. 7. Since Ch. DHS 163 was last amended, significant changes in work practice guidelines have been published. Specifically, the U.S. HUD published a significantly revised new edition of its HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing in 2012. These guidelines are the most definitive documented source for work practices for lead hazard reduction and lead investigation professionals. The Department proposes updating the work practice standards language and requirements for lead abatement, lead-safe renovation, and lead investigation activities to be in compliance with the revisions to the HUD Guidelines. This may include adding or updating some definitions, as well. 8. Under the lead rule, companies may apply for course accreditation to offer lead courses in the various disciplines leading to certification. Once accredited the course must continue to meet the requirements for an accredited course, including meeting a student to instructor ratio of not less than 8:1 for all student hands-on practice requirements, ranging from 2 to 6 hours for 1- to 2-day courses. Maintaining a low student to instructor ratio is important for initial courses where many students come in with minimal skills, but may be less important for refresher classes where students have already been certified for at least 2 years. The Department proposes to allow a student to instructor ratio for refresher classes of 12:1 in recognition that students come into the refresher with a skill set in place and to ease the instructor burden on training providers.
9. The U.S. EPA requires refresher classes for lead sampling technicians to be 4 hours in length. The current state lead rule requires this refresher course to be only 2 hours in length, which experience has shown is not enough time to adequately review all course material, provide hands-on practice time and a course test. The Department proposes to increase the required course length for the Lead Sampling Technician Refresher course to 4 hours.
10. Some people wishing to take training and become certified to conduct regulated lead activities have little education and low literacy levels. In addition, English may be a second language for some. All the courses require a course completion test be administered and that students pass the test with a score of at least 70% correct. To assist students with reading difficulties, the Department proposes to amend the rule to allow the training provider to read the course test to any student at the student’s request.
11. The lead program is funded partially by a continuing lead grant from the U.S. EPA and through program revenue from certification fees. Fees have not been increase in rule since 2002. Proposed fee increases would be $25 for the following individual 2-year certifications.
Lead abatement supervisor: increase from $225 to $250
Lead abatement worker: increase from $75 to $100
Lead hazard investigator and lead inspector: increase from $275 to $300
Lead project designer and lead risk assessor: increase from $325 to $350
Lead sampling technician and lead-safe renovator: increase from $50 to $75A fee increase is proposed for company certifications of $50, from $75 to $125 for a 2-year certification. A fee increase is proposed for the state lead examination from $50 to $75. In addition, training providers are currently the only regulated entity not also required to be a certified lead company. The program proposes adding the requirement for a training provider to also be a certified lead company.
12. Major sections of Ch. DHS 163 have not been substantially revised since 2002 or before. The Department proposes to update, correct, clarify and simplify or eliminate any outdated provisions in order to reflect current definitions, standards and best practices. There are no reasonable alternatives to the proposed rulemaking. The Department is required by Wis. Stats. § 254.15 (1), to develop and implement certification, training accreditation, and instructor approval requirements for lead-based paint activities. Summary of, and comparison with, existing or proposed 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 provision of pre-renovation information to owners and occupants; training of renovators and dust sampling technicians; certification of renovators, dust sampling technicians and renovation firms; lead-safe work practices for renovation; and reports and recordkeeping.
40 CFR § 745.225 to 745.239, Subpart L, relating to lead-based paint activities establishes requirements for training course accreditations and individual and firm certifications in the lead-safe renovator, lead abatement worker, lead abatement supervisor, lead project designer, lead sampling technician, lead inspector, and lead risk assessor disciplines. This subpart provides requirements for course accreditation, including course curriculum contents, course application process, instructor approval, and responsibilities of accredited courses including course notification and recordkeeping. This subpart establishes the requirements for certification of individuals and firms engaged in lead-based paint activities, including required training courses, education and experience, and certification examinations. Subpart L also establishes the work practice standards for conducting lead-based paint activities, including lead abatement, lead inspection, lead risk assessment and lead clearance activities. 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 to 745.239, and meet the requirements for EPA authorization under 40 CFR §§ 745.320 to 339, Subpart Q, for Wisconsin to implement and enforce its regulations for accreditation, certification and work practices for residential property renovations and lead-based paint activities in lieu of the EPA enforcing federal regulations in Wisconsin. Comparison with rules in adjacent states*
Illinois:
The Illinois certification program that certifies individuals and companies to conduct lead abatement and lead investigation activities is similar to Wisconsin DHS 163 except that Illinois does not administer the lead-safe renovation program. Illinois administers a lead training course accreditation program for all lead courses except the lead renovation course. The Illinois lead abatement certification program is EPA-authorized as is Wisconsin’s program. Illinois work practice requirements for lead abatement, inspection, risk assessment and clearance activities are similar to those in DHS 163. Illinois incorporates in rule multiple federal regulations and guidance documents while DHS 163 references these federal regulations and guidance documents without incorporation.
Illinois Administrative Code, Title 77: Public Health, Chapter 1: Department of Public Health, Subchapter p: Hazardous and poisonous Substances, Part 845: Lead Poisoning Prevention Code. DPH 77 Ill. Adm. Code 845 last revised November 2008. Iowa:
Like Wisconsin, Iowa is EPA-authorized to administer a full lead certification program, certifying individuals and companies to conduct lead abatement, lead-safe renovation and lead investigation activities. They also, like Wisconsin, administer a comprehensive lead training course accreditation program. Their overall program is generally similar to Wisconsin’s except that the Iowa work practice requirements are written more comprehensively, providing more of the specific requirements found in federal regulations and guidance documents, whereas, DHS 163 provides general work practice requirements, and references the documented methodologies found in federal guidance that a person must follow to remain in compliance.
Iowa Administrative Code 641, Chapter 69. Renovation, Remodeling, and Repainting— Lead Hazard Notification Process, last revised January 2010; and Chapter 70, Lead-Based Paint Activities, last revised July 2017. Michigan:
Michigan’s certification program for individuals and companies to conduct lead abatement and investigation activities is similar to Wisconsin DHS 163 except that Michigan administers only the pre-renovation education part of the lead-safe renovation program. Michigan does not administer the certification, accreditation, and work practice parts of the lead-safe renovation program. Michigan is EPA-authorized to administer its lead program. Michigan accredits lead training courses for all lead courses except the lead renovation course. Michigan work practice requirements for lead abatement, inspection, risk assessment and clearance activities are more comprehensively written, including specific work practice language in regulation that DHS 163 covers with general language and reference to the required use of the identified documented methodologies.
Public Health Code, Act 368 of 1978, Part 54A, 333.5451-333.5477. The Lead Abatement Act Administrative rules: Lead Hazard Control, R325.99101-R325.99409. Last revised September 2007.
Minnesota:
Minnesota’s lead certification program is EPA-authorized and certifies individuals and companies to conduct lead abatement and lead investigation activities. They are not EPA-authorized for, and do not administer, the full lead-safe renovation program at the state level, but do require renovation companies to be certified as renovation firms. Minnesota administers lead training course accreditation for all lead courses including the lead-safe renovation course. The Minnesota lead certification program is similar to Wisconsin’s program except they do not certify lead-safe renovators. Minnesota work practice requirements are similar to DHS 163.
2018 Minn. Statute Chapter 144, 144.9501 – 144.9512, The Lead Poisoning Prevention Act, last revised July 1, 2016; Minn. Statute 144.99 Enforcement, Subd. 4. Administrative penalty orders; and, Administrative Rules, Chapter 4761. Last revised in 2013. *Fees and civil penalty comparisons with these neighboring states are provided on the attached tables.
