Rule-Making Notices
Notice of Hearing
Health Services
Health, Chs. DHS 110—
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.
|
Department of Health Services
1 West Wilson Street
Room B139
Madison, Wisconsin
|
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.
Michigan
Michigan does not have a lead renovator rule but is in the early stages of developing a renovator rule.
Minnesota
Minnesota recently received legislative approval through a statutory change to develop a renovator rule that is consistent with the federal renovator rule and is just starting the rule-making process as of August 2009 with the goal to publish a final rule before the end of 2010.
Summary of factual data and analytical methodologies
The department referred to all of the following to draft the rules in this order and the small business fiscal impact analysis:
•
EPA regulations,
40 CFR §§ 745.80
to
745.91
and
745.225
relating to renovations and relating to training providers, and 745.320 to 339, relating to requirements that qualify states and tribes to implement these requirements in lieu of the EPA.
40 CFR §745
is commonly known as the renovation, repair and painting rule.
•
The EPA's Final Regulatory Flexibility Analysis for the Lead: Renovation Repair, and Painting Program, March 1, 2008 (Document ID EPA-HQ-OPPT-2005).
•
The EPA's "Economic Analysis for the TSCA Lead Renovation, Repair and Painting Program Final Rule for Target Housing and Child-Occupied Facilities", March 2008.
•
Letter dated May 5, 2008, from the U.S. Government Accountability Office, Associate General Counsel Robert J. Cramer, to the U.S. Senate Committee on Environment and Public Works and the U.S. House of Representatives Committee on Energy and Commerce reporting on "a major rule promulgated by the [EPA]".
•
Criteria adopted by the department and approved by the Wisconsin Small Business Regulatory Review Board to determine whether the department's proposed rules would have a significant economic impact on a substantial number of small businesses. Pursuant to the department's criteria, a proposed rule would 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 or revenues are reduced by more than the prior year's consumer price index. For the purposes of this rulemaking, 2008 is the index year. The consumer price index is compiled by the U.S. Department of Labor, Bureau of Labor Statistics and for 2008 is 3.8 percent.
•
The 2002 Economic Census –Geographic Series (Wisconsin), which is compiled by the U.S. Census Bureau every 5 years for each year ending in "2" and "7" and contains the latest available economic data compiled on businesses located in Wisconsin. (The U.S. Census Bureau's data release schedule for the 2007 Economic Census –Geographic Series is November 2009-July 2010.)
•
Section
227.114 (1) (a)
, Stats., which defines "small business" as a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employees 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000.
•
Under ss.
227.13
and
254.174
, Stats., the department established and met with a lead technical advisory committee (LTAC) to review and advise the department on the rule revisions. The LTAC includes representatives of the renovation industry, rental housing industry, school districts, local health departments, local housing and community development agencies, non-profits that assist homeowners, tribal programs, daycares and other state agencies.
Represented groups included:
1.
Renovators: WI Builders Association (WBA) and National Assn. of the Remodeling Industry (NARI)
2.
Weatherization: Project Home
3.
Property owners: WI Apartment Association, SE Wisconsin Apartment Association, WI Realtors Assn.
4.
WI Building Inspectors Association
5.
Lead training providers
6.
Environmental consultants
7.
HeadStart
8.
Non-profit: Dominican Center for Women (neighborhood development & housing rehab in Milwaukee)
9.
Department of Administration, Division of Energy Services (weatherization funding)
10.
School Districts: Milwaukee and Racine
11.
Local Health Departments: Milwaukee and Madison/Dane County
12.
Local Housing Agencies: Chippewa County Housing Authority, Waukesha Community Development and City of Sheboygan Building Inspection
13.
Department of Commerce, Division of Housing and Division of Safety & Buildings
14.
Department of Children and Families, Division of Early Care and Education
15.
Department of Health Services, Childhood Lead Poisoning Prevention Program and Medical Officer
LTAC members reviewed the EPA regulations and the department's conceptual language for revisions to ch.
DHS 163
, including definitions, certification requirements, work practice and recordkeeping responsibilities, and training course requirements. The department fully considered comments and advice from the LTAC when developing the rule revisions.
Analysis and supporting documents used to determine effect on small business
Small businesses affected by the rule
A business is considered a small business if it is a business entity, including its affiliates, which is independently owned and operated and not dominant in its field, and which employees 25 or fewer full-time employees or which has gross annual sales of less than $5,000,000. As indicated by the revenue and employee information provided by the 2002 U.S. Economic Census for Wisconsin, stated below, it is likely that a majority of the businesses affected by the rule are small businesses as defined under Wis. Stat. §
227.114 (1) (a)
.
The department conservatively estimates that at least 15,000 businesses will be affected by this rule, including contractors and trades (such as painters, electricians, plumbers, HVAC, siders and roofers); private schools, child care and preschool providers; and rental property owners and property management companies. This information is based on approximately 10,000 dwelling contractors certified by the department of commerce in Wisconsin, approximately 2,000 other trades, an estimated 3,000 rental property owners and managers of pre-1978 housing units and estimated 1,200 daycares and preschools in pre-1978 facilities.
CONSTRUCTION INDUSTRY
NAICS
|
Subsector
|
Business Description:
Primary Responsibility
|
Number of Establish-ments
|
Dollar Value of Work Done
|
Number of Employees
|
Includes
Businesses that Meet the WI Definition of Small Business
|
236118
|
Residential Remodelers: remodeling general contractors, operative remodelers, remodeling design-build firms, and remodeling project construction management firms
|
Remodeling construction (including additions, alterations, reconstruction, maintenance, and repair work) of houses and other residential buildings (single-family and multifamily).
|
1,508
|
$704,991,000
|
6,151
|
Yes
|
23611
|
Residential
Building
Construction
|
Construction or remodeling and renovation of single-family and multifamily residential buildings. Included in this industry are residential housing general contractors (i.e., new construction, remodeling or renovating existing residential structures), operative builders and remodelers of residential structures, residential project construction management firms, and residential design-build firms.
|
4,003
|
$4,146,381,000
|
19,073
|
Yes
|
23813
|
Framing
Contractors
|
Structural framing and sheathing using materials other than structural steel or concrete new work, additions, alterations, maintenance, and repairs.
|
430
|
$196,482,000
|
2,464
|
Yes
|
23816
|
Roofing
Contractors
|
Roofing. This industry also includes establishments treating roofs (i.e., spraying, painting, or coating) and installing skylights. The work performed may include new work, additions, alterations, maintenance, and repairs.
|
709
|
$501,773,000
|
4,958
|
Yes
|
23817
|
Siding Contractors
|
Installing siding of wood, aluminum, vinyl or other exterior finish material (except brick, stone, stucco, or curtain wall). This industry also includes establishments installing gutters and downspouts. The work performed may include new work, additions, alterations, maintenance, and repairs.
|
395
|
$148,778,000
|
1,877
|
Yes
|
238150
|
Glass and Glazing Contractors
|
Installing glass panes in prepared openings (i.e., glazing work) and other glass work for buildings. The work performed may include new work, additions, alterations, maintenance, and repairs.
|
47
|
$114,996,000
|
808
|
Yes
|
23821
|
Electrical
Contractors
|
Installing and servicing electrical wiring and equipment. Electrical contractors included in this industry may include both the parts and labor when performing work. Electrical contractors may perform new work, additions, alterations, maintenance, and repairs.
|
1,174
|
$1,599,245,000
|
14,335
|
Yes
|
23822
|
Plumbing, Heating, and Air-Conditioning Contractors
|
Installing and servicing plumbing, heating, and air-conditioning equipment. Contractors in this industry may provide both parts and labor when performing work. The work performed may include new work, additions, alterations, maintenance, and repairs.
|
1,839
|
$2,643,604,000
|
20,425
|
Yes
|
23831
|
Drywall and Insulation
Contractors
|
Drywall, plaster work, and building insulation work. Plaster work includes applying plain or ornamental plaster, and installation of lath to receive plaster. The work performed may include new work, additions, alterations, maintenance, and repairs.
|
533
|
$471,329,000
|
5,461
|
Yes
|
23832
|
Painting and
Wall Covering Contractors
|
Interior or exterior painting or interior wall covering. The work performed may include new work, additions, alterations, maintenance, and repairs.
|
841
|
$276,551,000
|
4,023
|
Yes
|
23833
|
Flooring
Contractors
|
Installation of resilient floor tile, carpeting, linoleum, and hard wood flooring. The work performed may include new work, additions, alterations, maintenance, and repairs.
|
323
|
$183,469,000
|
1,618
|
Yes
|
23839
|
Other Building
Finishing
Contractors
|
Building finishing trade work (except drywall, plaster and insulation work; painting and wall covering work; flooring work; tile and terrazzo work; and finish carpentry work). The work performed may include new work, additions, alterations, or maintenance and repairs.
|
144
|
$65,831,000
|
835
|
Yes
|
23835
|
Finish Carpentry Contractors
|
Finish carpentry work. The work performed may include new work, additions, alterations, maintenance, and repairs.
|
1,088
|
$468,750,000
|
4,689
|
Yes
|
REAL ESTATE INDUSTRY
NAICS
|
Subsection
|
Business Description:
Primary Responsibility
|
Number of Establish-ments
|
Revenue
|
Number of Employees
|
Includes
Businesses that Meet the WI Definition of Small Business
|
53111
|
Lessors of
Residential
Buildings and Dwellings
|
Lessors of buildings used as
residences or dwellings, such as single-family homes, apartment buildings, and town homes. Included in this industry are
owner-lessors and establishments renting real estate and then acting as lessors in subleasing it to
others. The establishments in this industry may manage the property themselves or have another establishment manage it for them.
|
1,019
|
$737,415,000
|
5,270
|
Yes
|
53131
|
Real Estate
Property Managers
|
Managing real property for others. Management includes ensuring that various activities associated with the overall operation of the property are performed, such as collecting rents, and overseeing other services (e.g., maintenance, security, trash removal).
|
510
|
$323,257,000
|
4,871
|
Yes
|
531311
|
Residential
Property Managers
|
Managing residential real estate for others.
|
398
|
$235,558,000
|
4,034
|
Yes
|
SOCIAL ASSISTANCE (CHILD CARE) INDUSTRY
NAICS
|
Subsection
|
Business Description:
Primary Responsibility
|
Number of Establish-ments
|
Receipts
|
Number of Employees
|
Includes
Businesses that Meet the WI Definition of Small Business
|
6244
|
Child Day Care Services
|
Providing day care of infants or children. These establishments generally care for preschool children, but may care for older children when they are not in school and may also offer
prekindergarten educational programs
|
1,666
|
$478,195,000
|
17,357
|
Yes
|
WASTE MANAGEMENT AND REMEDIATION INDUSTRY
NAICS
|
Subsection
|
Business Description:
Primary Responsibility
|
Number of Establish-ments
|
Sales
|
Number of Employees
|
Includes
Businesses that Meet the WI Definition of Small Business
|
5629102
|
Asbestos Abatement and Lead Paint Removal
|
Asbestos abatement or
lead paint removal
|
25
|
$24,152,000
|
296
|
Yes
|
Other persons or entities affected by the rule
Other persons and entities that will be affected by the rule are children and families, public school districts, and state and local governments.
Costs to small businesses
Under the provisions of ch.
DHS 163
relating to pre-renovation education and lead-based paint renovation, small businesses will have increased expenses, including certification fees, recordkeeping and other administrative costs, information distribution expenses and work practice (equipment and supplies) costs.
The department reviewed the regulatory requirements for EPA authorization under
40 CFR 745
and identified the costs to businesses under the EPA regulations and the department rules under this order. The department also used the 2002 U.S. Economic Census to help determine the effect on small businesses. In addition, the department reviewed and used relevant portions of EPA's economic analysis to determine the costs and benefits to Wisconsin.
In its analysis, the EPA analyzed the economic impact of compliance on small entities by evaluating the number of companies that would experience the impact and the size of the impact. Average annual compliance costs as a percentage of average annual revenues were used to assess the potential average cost of the rule on small businesses and small governments. EPA estimated that the average compliance costs for small businesses would be 0.7% of annual revenues. For small non-profits such as private schools and pre-schools, the costs would be 0.1% of annual expenditures. EPA based these estimates on an average compliance cost of approximately $35 per renovation. Even if the actual average cost per renovation is double EPA's estimate, or $70 per job, this would translate to only 1.4% of annual revenue for contractors and 0.2% for nonprofits, and would be below the 2008 CPI of 3.8%.
Upon review of the information, the department has determined, however, that the actual costs to renovators are indeterminate because of the number of variables involved, including:
•
The size of the project/amount charged to customer to conduct the renovation – the larger the project/more charged to conduct the project, the lower the cost of compliance as a percent of the overall cost of the job.
•
Number of jobs conducted by the renovator – the more jobs a renovator conducts in a month or year the lower the overall cost of compliance per job.
•
Cost of equipment and supplies – whether more expensive equipment such as a HEPA vacuum is already owned or must be purchased and whether supplies are purchased in bulk or in smaller amounts.
•
Generally larger, more active renovators will be affected less by the costs of compliance than smaller, less active renovators.
The costs to businesses under this rule would be similar to the costs to businesses under the EPA regulations if the EPA implemented its regulations in Wisconsin. The cost elements in the EPA regulations and this order are the same. A discussion of the cost elements follows:
Certification fees
Under the current rule, companies conducting lead-hazard reduction and lead-investigation activities are required to be certified by the department and to pay a certification fee of $75 every 2 years ($37.50 per year). Certification of companies performing only renovation activities is currently optional unless the work will be conducted in a state-registered lead-safe home. Under the revised rule, company certification will be required for companies that conduct renovations for compensation in pre-1978 housing or child-occupied facilities. Renovation companies will pay the current fee of $75 for a 2-year certification.
Licensed plumbers and HVAC workers are not required to pay the fee and become certified under the rule, but are required to comply with all other provisions relating to regulated work under the chapter, including training, recordkeeping and work practices.
Accreditation of training courses
Under the rule, the current 1-day lead-safe work course is being converted to the 1-day lead-safe renovator course. Training providers that are already accredited to provide the lead-safe work course will be allowed to convert their course to the lead-safe renovator course with no additional fee. The department will require only a minimal paper submittal to accomplish the transition from the lead-safe work to lead-safe renovator course. The lead-safe renovator refresher course is new and training providers wishing to offer it submit an application to the department with a $125 application and a $100 accreditation fee. The application fee is a one-time fee and the accreditation fee is payable every 2 years.
Other costs to training providers are not expected to change, including existing fees for renewing accreditation ($200 for 2 years for the lead-safe renovator course), and administrative costs to notify the department of scheduled classes, verify student identities, take student pictures, submit student information and pictures to the department, and keep required course and student records. These requirements are not revised under the rule except to reduce the requirement to view 2 forms of student ID to view only 1 form of photo ID per student.
The EPA provides complete curriculum materials for both the initial and refresher renovator courses, including instructor and student manuals, free for download from its website, thus minimizing course preparation costs for training providers. This curriculum is acceptable for use in Wisconsin. The EPA fees for training course accreditation are $560 for accreditation of the initial renovator course and $400 for the refresher course. Re-accreditation is required every 4 years at a cost of $340 for the initial and $310 for the refresher. Compared over 8 years, Wisconsin fees are $85 less than EPA's fees for a company offering both the initial and the refresher renovator courses.
Recordkeeping
The rule requires renovators to create and maintain certain records, including the written contract for services; any lead paint inspection reports received from a certified lead inspector or risk assessor; written or printed evidence of distributing the required information pamphlet (such as a signed acknowledgement statement or a certificate of mailing); a written record of compliance with the rule requirements for each renovation activity conducted, including on-the-job training for uncertified workers, posting of warning signs, containment of work areas, waste handing, cleaning and post-renovation cleaning verification; documentation of training for each uncertified worker; documentation of emergency renovations that are not required to meet all of the renovation requirements under the rule; documentation of use of a recognized chemical paint test kit, if used; written clearance report if dust-wipe clearance is performed, and the company's certificate of approval from the department. The administrative costs for creating and maintaining these records will require some adjustment by many renovators, but not all records are required for all jobs. An estimate for the time needed to create and maintain these records would be less than 1 additional hour, and for less complex jobs, less than 1/2 additional hour per job. At $15 per hour for administrative office help, this translates to less than $7.50 to $15 per job. These expenses would also be incurred under the EPA regulation.
Other persons certified under the rule, such as lead abatement contractors and lead investigators, already are required to keep many records. These requirements were found in many locations in the rule and these were consolidated in the revised rule into the new recordkeeping section under DHS 163.13 (3). No new costs are associated with recordkeeping for these regulated groups.
Information distribution
Renovators under the revised rule are required to distribute the pamphlet, Renovate Right, to property owners, occupants, child-occupied facility owners, operators and to parents of children attending the child-occupied facility. The costs include the time to prepare and ensure that the pamphlet is received by obtaining a signed acknowledgement of receipt or certificate of mailing, and by posting in common areas of multi-family housing or in child-occupied facilities where parents would be likely to see the information.
The pamphlet,
Renovate Right
, may be downloaded free from the EPA website and printed in-house for minimal expense or sent out for professional printing at the renovator's discretion. Costs associated with distribution are expected to be minimal as most renovators work directly with the owner/occupant and have ample opportunity to provide the required material. Copy and distribution expenses would also be incurred under the EPA regulation.
Work practices
For renovators, there will be certain work practice expenses associated with this new rule, including possible purchase of certain equipment and supplies. These might include a HEPA vacuum, HEPA-attachments for high-speed machines such as sanders and grinders, disposable plastic sheeting, disposable dry and wet cleaning cloths and mops. Many renovators already use HEPA vacuums, but many others would need to purchase one or more.
Cost-Benefits
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.
Lead interferes with the normal development of a child's brain and can result in significant learning disabilities and other behavior and health problems. Lead poisoning is associated with a greater chance that a child will experience problems in school due to learning difficulties and failure. Children who are lead poisoned show a 15% decrease in reading scores and 14% decrease in mathematical scores on performance tests in 3
rd
grade. These learning problems can lead to higher rates of high school dropout, teen pregnancy and juvenile delinquency. The reduction in impaired cognitive function and other serious illnesses in children and adults a health effects from lead exposure are expected to result in quantifiable benefits nationwide.
According to the EPA, in its March 2008, economic analysis, its regulations under
40 CFR 745
would result in quantified benefits of approximately $700 million to $1,700 million in the first year nationwide, including other avoided health effects in children and adults that are not included in the net benefits estimates. Using EPA's conclusions, the department has determined that the estimated net benefits to Wisconsin would be $1 million to $20 million in the first year based on children's IQ benefits alone.
These health effects include impaired cognitive function in children and several serious illnesses in children and adults. EPA estimated the benefits of avoided incidence of IQ loss due to reduced lead exposure to children under the age of 6. There are not sufficient data to develop dose-response functions for other health effects in children or for pregnant women.
Small Business Impact
At least 10% of the businesses affected by this order are small businesses; however, the rules will not have a significant economic impact on those businesses.
Small business regulatory coordinator
Rosie Greer
608-266-1279
Fiscal Estimate
State government
DHS will require 2.0 FTE (1.0 License/Permit Program Associate and 1.0 Environmental Health Specialist-Sr.) for the increased work load of administering the lead-safe renovation program, at an estimated cost of $119,600. The positions will be funded by program revenue, from fees charged for lead-safe renovator and company certification, and will not require GPR. Positions will be filled as revenue generated by the program becomes available. The positions will review and process certification applications, provide outreach and technical assistance to individuals and businesses, conduct inspections and complaint investigations, and engage in enforcement activities when necessary.
There are other potential costs to state agencies and the University of Wisconsin system if these agencies do their own renovation work in target housing or a child-occupied facility, including any state-operated residential or day-treatment facility with children under age six. Costs to the state would not include certification costs, from which government is exempt, but could include training, equipment and supplies needed to comply with the containment and cleaning requirements under the regulation. It is not possible to estimate these potential costs but they are not expected to be significant.
Revenue.
The Department estimates that, with full compliance, an estimated 15,000 companies will become certified for renovation work at a cost of $75 per company for a 2-year certification. Department rules require any individual who performs renovation work to be a Department-certified company. Companies that conduct regulated renovation activities are required to have at least one lead-safe renovator on their staff. As a result, an estimated 15,000 individual lead-safe renovators will have to become certified at a cost of $50 each for a 2-year certification. If all regulated companies and renovators are compliant, the state will receive an additional $900,000 PR annually.
However, full compliance will not be immediate and will require adequate agency staffing to provide compliance assistance and enforcement actions, when warranted, to increase the overall compliance rate over time. The Department assumes that there will be 8-10% compliance in the first year, with annual revenue at $75,000. Compliance will increase by 10% to 15% ($100,000 to $150,000) per year in subsequent years. At 50% compliance, the program's revenues will be approximately $475,000 annually and, at 70% compliance, approximately $650,000 annually. The Department's goal is to achieve 50% compliance by the fifth year of implementation and increase it to at least 70% compliance statewide over the next five years.
Local government
The renovation rule may have an effect on some local governments, including public school districts and day cares operated by local governments or school districts. Governmental entities are exempt from certification fees. If the government entity does its own regulated renovation work, however, there would be additional costs as a result of this rule. The costs would include training and such work practice costs as equipment and supplies. There may also be higher costs to government facilities for work performed by a paid contractor as a result of this rule. These costs are not expected to be significant. The EPA has concluded that the federal regulations do not significantly, uniquely, or primarily affect small governments, nor do the federal regulations impose a different burden on small governments than on other entities.
Small business
Under the provisions of DHS 163 relating to pre-renovation education and lead-based paint renovation, small businesses will have increased expenses, including certification fees, recordkeeping and other administrative costs, information distribution expenses and work practice (equipment and supplies) costs.
Certification fees:
Under the current rule, companies conducting lead-hazard reduction and lead-investigation activities are required to be certified by the department and to pay a certification fee of $75 every 2 years ($37.50 per year). Certification of companies performing only renovation activities is currently optional unless the work will be conducted in a state-registered lead-safe home. Under the revised rule, company certification will be required for companies that conduct renovations for compensation in pre-1978 housing or child-occupied facilities. Renovation companies will pay the current fee of $75 for a 2-year certification.
Licensed plumbers and HVAC workers are not required to pay the fee and become certified under the rule but are required to comply with all other provisions relating to regulated work under the chapter, including training, recordkeeping and work practices. For others, the individual certification fee of $50 every 2 years remains without revision and will apply to certified lead-safe renovators. Businesses are not required to pay these fees for their employees.
Accreditation of training courses:
Under the rule, the current 1-day lead-safe work course is being converted to the 1-day lead-safe renovator course. Training providers that are already accredited to provide the lead-safe work course will be allowed to convert their course to the lead-safe renovator course with no additional fee. The department will require only a minimal paper submittal to accomplish the transition from the lead-safe work to lead-safe renovator course. The lead-safe renovator refresher course is new and training providers wishing to offer it submit an application to the department with a $125 application and a $100 accreditation fee. The application fee is a one-time fee and the accreditation fee is payable every 2 years.
Other costs to training providers are not expected to change, including existing fees for renewing accreditation ($200 for 2 years for the lead-safe renovator course), and administrative costs to notify the department of scheduled classes, verify student identities, take student pictures, submit student information and pictures to the department, and keep required course and student records. These requirements are not revised under the rule except to reduce the requirement to view 2 forms of student ID to view only 1 form of photo ID per student.
The EPA provides complete curriculum materials for both the initial and refresher renovator courses, including instructor and student manuals, free for download from its website, thus minimizing course preparation costs for training providers. This curriculum is acceptable for use in Wisconsin. The EPA fees for training course accreditation are $560 for accreditation of the initial renovator course and $400 for the refresher course. Re-accreditation is required every 4 years at a cost of $340 for the initial and $310 for the refresher. Compared over 8 years, Wisconsin fees are $85 less than EPA's fees for a company offering both the initial and the refresher renovator courses.
Recordkeeping:
The rule requires renovators to create and maintain certain records, including the written contract for services; any lead paint inspection reports received from a certified lead inspector or risk assessor; written or printed evidence of distributing the required information pamphlet (such as a signed acknowledgement statement or a certificate of mailing); a written record of compliance with the rule requirements for each renovation activity conducted, including on-the-job training for uncertified workers, posting of warning signs, containment of work areas, waste handing, cleaning and post-renovation cleaning verification; documentation of training for each uncertified worker; documentation of emergency renovations that are not required to meet all of the renovation requirements under the rule; documentation of use of a recognized chemical paint test kit, if used; written clearance report if dust-wipe clearance is performed, and the company's certificate of approval from the department. The administrative costs for creating and maintaining these records will require some adjustment by many renovators, but not all records are required for all jobs. An estimate for the time needed to create and maintain these records would be less than 1 additional hour, and for less complex jobs, less than 1/2 additional hour per job. At $15 per hour for administrative office help, this translates to less than $7.50 to $15 per job. These expenses would also be incurred under the EPA regulation.
Other persons certified under the rule, such as lead abatement contractors and lead investigators, already are required to keep many records. These requirements were found in many locations in the rule and these were consolidated in the revised rule into the new recordkeeping section under DHS 163.13 (3). No new costs are associated with recordkeeping for these regulated groups.
Information distribution:
Renovators under the revised rule are required to distribute the pamphlet, "Renovate Right," to property owners, occupants, child-occupied facility owners, operators and to parents of children attending the child-occupied facility. The costs include the time to prepare and ensure that the pamphlet is received by obtaining a signed acknowledgement of receipt or certificate of mailing, and by posting in common areas of multi-family housing or in child-occupied facilities where parents would be likely to see the information.
The pamphlet, "Renovate Right," may be downloaded free from the EPA website and printed in-house for minimal expense or sent out for professional printing at the renovator's discretion. Costs associated with distribution are expected to be minimal as most renovators work directly with the owner/occupant and have ample opportunity to provide the required material. Copy and distribution expenses would also be incurred under the EPA regulation.
Work practices:
For renovators, there will be certain work practice expenses associated with this new rule, including possible purchase of certain equipment and supplies. These might include a HEPA vacuum, HEPA-attachments for high-speed machines such as sanders and grinders, disposable plastic sheeting, disposable dry and wet cleaning cloths and mops. Many renovators already use HEPA vacuums, but many others would need to purchase one or more.
Actual costs to renovators is indeterminate because of the number of variables involved, including:
•
The size of the project/amount charged to customer to conduct the renovation – the larger the project/more charged to conduct the project, the lower the cost of compliance as a percent of the overall cost of the job.
•
Number of jobs conducted by the renovator – the more jobs a renovator conducts in a month or year the lower the overall cost of compliance per job.
•
Cost of equipment and supplies – whether more expensive equipment such as a HEPA vacuum is already owned or must be purchased and whether supplies are purchased in bulk or in smaller amounts.
•
Generally larger, more active renovators will be affected less by the costs of compliance than smaller, less active renovators.
EPA analyzed the economic impact of compliance on small entities by evaluating the number of companies that would experience the impact and the size of the impact. Average annual compliance costs as a percentage of average annual revenues were used to assess the potential average cost of the rule on small businesses and small governments. EPA estimated that the average compliance costs for small businesses would be 0.7% of annual revenues. For small non-profits such as private schools and pre-schools, the costs would be 0.1% of annual expenditures. EPA based these estimates on an average compliance cost of approximately $35 per renovation. Even if the actual average cost per renovation is double EPA's estimate, or $70 per job, this would translate to only 1.4% or annual revenue for contractors and 0.2% for nonprofits.
The fees that Wisconsin will charge for lead-safe company certification will be lower than those charged by EPA. Current state fees for company certification are lower than federal EPA fees and no fee revisions are being requested with this rule revision. Company certification fees will remain at $75 for 2-years ($37.50 per year). Comparable federal fees are $300 for a company certification for 5 years ($60 per year). State penalties for non-compliance are also considerably lower than federal penalties. The highest federal penalty fee is $37,500 per violation; the highest state penalty fee is $1,000 per violation.
State government fiscal effect
Increase existing revenues. Increase in costs may be possible to absorb within agency's budget.
Fund sources affected
FED and PRO.
Affected Ch.
20
, Stats. appropriations
Local government fiscal effect
Indeterminate. Increase costs.
Local government units affected
School districts.
Private sector fiscal effect
Indeterminate. Revenues may have significant economic impact on a substantial number of small businesses.
No increase in costs. May have significant economic impact on a substantial number of small businesses.
Long-range fiscal implications
None known.
Notice of Hearing
Public Defender Board
The State of Wisconsin Public Defender Board (SPD) announces that it will hold a public hearing on its emergency rule to create Chapter
PD 8
, Discovery Payments, relating to the maximum fees that the state public defender may pay for copies of discovery materials in criminal proceedings, proceedings under Wis. Stat. Chapter
980
, and other proceedings in which the state public defender provides legal representation.
Hearing Information
SPD will hold a public hearing at the time and place shown below.
November 16, 2009
10:00 am to 3:00 pm
SPD Administrative Office, Banoul Conference Room
315 N. Henry Street, 2
nd
Floor
Madison WI 53703
Handicap accessibility is in the rear of the building. If you require communication accommodation at the hearing, please call Marla Stephens, (414) 227-4891, at least 10 days prior to the hearing date.
Appearances at Hearing and Submission of Written Comments
Interested persons are invited to attend the hearing and comment on the emergency rule. Persons appearing may make an oral presentation and are requested to submit their comments in writing. Written comments on the emergency rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Monday, November 16, 2009. Written comments should be addressed to: Marla Stephens, SPD, PO Box 7923, Madison, WI 53707-7923, or by email:
stephensm@opd.wi.gov
.
Copies of Emergency Rule
You may contact Marla Stephens at
stephensm@ opd.wi.gov
or by telephone at (414) 227-4891 to request a copy of the rule and fiscal note be sent to you by U.S. mail. Copies of the rule and fiscal note will also be available at the hearing.
Analysis Prepared by the State Public Defender Board
Statutes interpreted
Statutory authority
Explanation of agency authority
Section
977.02 (9)
, Stats., effective July 1, 2009, directs the state public defender board to promulgate rules "establishing the maximum fees that the state public defender may pay for copies, in any format, of materials that are subject to discovery in cases in which the state public defender or counsel assigned under s.
977.08
provides legal representation."
Related statute or rule
None
Plain language analysis
The state public defender appoints attorneys to represent financially eligible persons in cases where they have a constitutional or a statutory right to an attorney at state expense.
See
Chapter
977
, Stats. Sections
971.23
and
980.036
, Stats., require a district attorney or other prosecuting attorney to disclose certain materials and information, referred to generally as "discovery materials," to an opposing party or his or her counsel within specified time limits. Subsections 971.23 (10) and 980.036 (10), Stats., require the state public defender to pay for the copies of discovery materials disclosed to appointed counsel if the provider charges a fee for them.
This emergency rules order implements the
2009 Wisconsin Act 28
requirement that the state public defender board promulgate administrative rules establishing the maximum fees that the state public defender may pay for copies of discovery materials in any format.
This rulemaking authority responds to two problems that the state public defender has encountered regarding the specific appropriation for transcripts, interpreter fees, and discovery costs: 1) this appropriation has been insufficient since Fiscal Year 2001-2002,
and 2) the counties and municipalities have charged different amounts for similar items, such as photocopies and DVDs, resulting in disputes over the reasonableness of some of the bills submitted to the state public defender.
The emergency rules provide notice to the counties and municipalities of the applicable fees that will be paid, ensure consistency among all providers of discovery materials, and establish a procedure for the state public defender to follow if the applicable appropriation is depleted before the end of the biennium. The emergency rules:
•
Establish maximum rates for the common formats in which the state public defender presently receives discovery materials;
•
Specify that the state public defender does not pay for the labor costs, postage costs, transmittal costs, or other ancillary costs related to compiling, preparing, or providing discovery materials to the attorneys, staff or private, appointed under s.
977.08
;
•
Provide the state public defender with the authority to reduce or suspend payments for discovery materials when the applicable appropriation is insufficient to continue payments at the maximum rate; and
•
Specify that the state public defender may set a maximum rate not to exceed the actual, necessary, and direct cost of producing discovery materials that are provided in a format not directly addressed in the rule.
Comparison with federal regulations
There are no existing or proposed federal regulations that address the activities of the proposed rules.
Comparisons with rules in adjacent states
In general, most states require prosecutors to provide copies of all discovery materials under mandatory discovery laws.
Minnesota and Iowa have implemented statewide public defender programs, but only Minnesota has a statute relating to public defenders and discovery costs. Specifically, Minnesota statutes section 611.271 (2008) states that when discovery materials are requested by a public defender, no fee can be charged for police reports, photographs, copies of existing grand jury transcripts, audiotapes, videotapes, copies of existing transcripts of audiotapes or videotapes, and, in child protection cases, reports prepared by local welfare agencies. Iowa public defenders, on the other hand, are charged for most discovery materials obtained from the prosecutor. The cost of discovery varies depending on the county prosecutor.
In Michigan and Illinois, the individual counties themselves establish public defender programs. In Michigan counties, the public defenders do not typically pay for any discovery costs. When they do have to pay, the public defenders only pay for the cost of copies and not the cost of labor. In the Illinois counties surveyed, when the public defenders receive discovery from the prosecutor, they do not pay any fees.
Summary of factual data and analytical methodologies
Pursuant to s.
977.02 (9)
, Stats., the public defender board "shall consider information regarding the actual, necessary, and direct cost of producing copies of materials that are subject to discovery" when establishing the maximum fees that the public defender may pay for them.
A significant portion of the direct cost of any copy is the media (e.g., the paper or the blank disc) on which it is provided.
In its biennial budget request for FY 2009-2011, the public defender board requested funding to increase the rate to be paid for paper discovery materials from $0.20 to $0.25 per page. This request was neither included in the Governor's budget, nor added to the budget bill by the legislature. The state public defender board interprets the omission of the requested funding as tacit agreement that $0.20 per page meets or exceeds the "actual, necessary and direct cost" criteria for paper copies of discovery materials. Compare FedEx/Kinko's current retail price of $0.08 each for up to 100 letter- or legal-size copies, and $0.07 each for 101 to 1,000 copies. The Department of Justice charges $0.15 per page for paper copies furnished in response to a public records request under ch.
19
, Stats. Under the proposed rule, the state public defender would continue to pay up to $0.20 per page.
The charges submitted for discovery materials provided in electronic formats vary greatly among the state's prosecutors and law enforcement agencies. For example, bills for a single compact disc (CD) range from $3 to $35. The retail cost of blank CDs and digital videodiscs (DVDs) is currently less than $0.80 each. Large suppliers such as Corporate Express offer discounts to governmental units, bringing the unit cost down to less than $0.40 each. The Department of Justice charges $1.00 per disc for copies furnished in response to a public records request under ch.
19
, Stats. Under the proposed rule, the state public defender would pay up to $5.00 per disc.
The charges submitted for copies of photographs range from $1.50 to $25.00 for digital prints, from $1.00 to $2.00 for black and white photos, and from $0.35 to $2.00 for color photos. The retail cost of photograph reproductions depends upon their size. Walgreen's, a national retailer, charges $0.19 each for less than 100 4x6 prints, $0.15 each for 100 or more 4x6 prints, $1.59 each for 5x7 prints and $2.99 each for 8x10 prints. The Camera Company in Madison charges $0.43 each for photos up to 4x6. Under the proposed rule, the state public defender would pay up to $0.50 each for copies of photos that are 5x7 and smaller, and $1.00 each for copies of larger photos.
The charges submitted for copies of audio and video tapes also vary greatly. Bills for a single video tape range from $5.00 to $46.00, and for a single audio tape from $1.00 to $25.00. If purchased from a state contract office supply vendor, blank audio cassette tapes range in price from $0.42 to $1.07 each and blank VHS video tape prices range from $1.22 to $3.00 each. If purchased from a retailer (Best Buy), a four-pack of audio cassette tapes costs $5.99 ($1.50 each), and a four-pack of VHS video tapes costs $10.99 ($2.75 each). Under the proposed rule, the state public defender would pay up to $5.00 per tape.
Analysis and supporting documents used to determine effect on small business
The impact on counties and municipalities that provide copies of discovery materials is unknown.
Small Business Impact
Small businesses are not affected by the rule.
Fiscal Estimate
Summary
The State Public Defender (SPD) is statutorily authorized and required to appoint attorneys to represent indigent defendants in criminal proceedings. The SPD plays a major role in ensuring that the Wisconsin justice system complies with the right to counsel provided by both the state and federal constitutions. Any legislation that creates a new criminal offense or expands the definition of an existing criminal offense has the potential to increase SPD costs.
These administrative rules do not create a new offense, expand the scope of any criminal offense, or change any criminal penalties. The rules provide maximum rates that the SPD will pay for discovery materials, such as photocopies of police reports and audio or video recordings of interrogations. In the vast majority of cases in which the SPD provides representation, the appointed attorney must obtain and review discovery materials as part of adequate case preparation.
The SPD does not anticipate any significant fiscal impact from these rules. The SPD has a separate appropriation for discovery, interpreters, and transcripts. For the last few years, this appropriation has been insufficient to pay the necessary costs incurred by the SPD in the course of providing representation. The deficit in this appropriation has been growing, as more counties and municipalities have been recording interrogations of defendants and then billing the SPD for copies of the recordings. In some counties, these rules will lower the costs of each individual recording; however, the number of jurisdictions providing the recordings may continue to increase.
The SPD has been paying all counties $0.20 per page for photocopies provided as discovery materials. The SPD has been paying varying amounts for other forms of discovery, such as DVDs and CDs. Some bills for recordings come from municipalities and others from counties. The SPD does not have data to estimate the specific impact of these rules on individual municipalities and counties. However, because the SPD's annual appropriation for transcript, discovery and interpreter payments was not changed as a result of this provision of
2009 Wis Act 28
, the biennial budget bill, it appears that the legislative intent is that these rules will neither increase nor decrease the SPD's total payments for discovery materials.
Long-range fiscal implications
The rules provide a mechanism for the SPD Board to reduce the maximum rates if the appropriation in question is depleted in two consecutive years (following adoption of the rules). Thus, the rules arguably provide a safety valve to limit the total payment obligations of the SPD for discovery. The rules may also help to resolve issues that might otherwise arise regarding the rates that counties and municipalities may charge for new formats in which they provide discovery materials.
Agency Contact Person
Questions regarding these rules may be directed to:
Marla Stephens
315 N. Henry Street, 2
nd
Floor
Madison, WI 53703
Phone: (414) 227-4891
