On July 1, 2021, revisions to Wis. Admin. Code, ch. DHS 163, Certification for the Identification, Removal and Reduction of Lead-Based Paint Hazards, take effect. (The link will automatically show the revisions when they take effect).
Below is an overview of significant changes to the rule. It is not a comprehensive list of all revisions to the rule. That is available, along with other information on the revision process, from the Wisconsin Legislature's Administrative Rules Clearinghouse (see CR 19-110 Rule Text).
"Lead-Based Paint" Definition Relaxed
The definition of lead-based paint was revised to align with Wis. Stat. ch. 254.11 (8), which was changed in 2015. Now, paint or any other surface coating material containing more than 0.06% lead by weight, calculated as lead metal, in the total nonvolatile content of liquid paint, more than 0.5% lead by weight in the dried film of applied paint, or more than 1 milligram of lead per square centimeter in the dried film of applied paint, is considered lead-based paint.
Wisconsin's definition of lead-based paint is less restrictive than the Federal definition: Lead-based paint means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligrams per square centimeter or more than 0.5 percent by weight.
Lead investigation professionals should follow the most restrictive requirement that applies to their work to ensure compliance with state and federal law.
"Child-Occupied Facility" Definition Expanded
The definition of a child-occupied facility now includes "a structure that is being converted" to a child-occupied facility. This means that a renovation in a building that is going to be used as a child-occupied facility, such as a daycare, is regulated.
Trained Individuals Now Provisionally Certified Right After Applying
There's no more waiting for a blue certification card to arrive in the mail from the Department of Health Services (DHS) before doing regulated work! Individual applicants are qualified to work under provisional certification if they have:
- Completed the required training course, AND
- Submitted a complete application for certification to DHS.
Individuals working under provisional certification must keep a copy of their training diploma (marked "copy") with them while conducting regulated work.
Note: Students who successfully complete an accredited lead training course now receive a training diploma (instead of a training certificate). This should better distinguish this document from a certification card or company certificate issued by DHS.
Certifications Now Good for 2+ Years, Fees Increased
To keep refresher training and certification expiration dates on the same schedule, one-year certifications have been discontinued. All certifications will be issued for a maximum of two years, except that lead-safe renovators will be able to certify for up to four years to line up with that refresher training cycle. Individuals who don't currently expire on their refresher training due date will be offered renewal through the end of their current training period for a prorated certification fee.
|Fee as of July 1, 2021|
|Abatement Supervisor||$275 (previously $225)|
|Abatement Worker||$100 (previously $75)|
|Hazard Investigator||$325 (previously $275)|
|Inspector||$325 (previously $275)|
|Project Designer||$375 (previously $325)|
|Risk Assessor||$375 (previously $325)|
|Lead-Safe Renovator||$75 (previously $50)|
|Sampling Technician||$75 (previously $50)|
|Lead Company||$125 (previously $75)|
Applicants for lead abatement supervisor, hazard investigator, inspector, risk assessor: The fee to register for the state lead exam has increased from $50 to $75.
One, More Flexible, Company Certification
Companies no longer have to choose between certifying as a Lead-Safe Company or a Lead Company. We've discontinued the Lead-Safe Company certificate option. All companies will be issued the same Lead Company certification, and just have to make sure they have appropriately trained staff for the type of regulated lead activities the company will offer and conduct.
Six Months, Up to Three Attempts to Pass Certification Exam
All applicants for initial certification as lead abatement supervisors (LAS), hazard investigators (LHI), inspectors (LI), or risk assessors (LRA) will now have a maximum of six months after completing initial training for the discipline to pass the certification exam, and will receive interim certification to do regulated work during that time. Applicants will still be eligible for up to three attempts to pass the exam.
What happens if an applicant does not pass the certification exam?
An applicant who does not pass the certification exam after six months, or who fails three attempts, may have their interim certification revoked, and their application for initial LAS, LRA, LHI, or LI certification will be denied. An applicant denied initial LAS certification will be issued certification as a lead abatement worker. An applicant denied initial LRA, LHI, or LI certification will be issued certification as a lead sampling technician.
Twelve months after the denial, an individual denied LAS certification may reapply for LAS certification after re-taking the initial LAS training. Similarly, 12 months after denial of LHI or LI certification, the individual may reapply for LHI or LI certification after re-taking the initial LHI or LI training. To reapply for LRA certification after the 12-month period, the individual must re-take both the initial LHI and initial LI training.
New Limited Exemption of Certain Partial Lead Inspections
To align with Wis. Stat. ch. 254.18 (2) (b), a very limited exemption from regulation has been added to the rule for certain partial lead inspections. To incorporate this exemption, partial lead inspection has been defined as "an on-site sampling or testing of one or more, but not all, testing combinations in any target housing or child-occupied facility to determine the presence of lead-based paint."
Most partial lead inspections are still regulated, with certification requirements and work practice standards that apply. However, partial lead inspections are exempt from regulation under Wis. Admin. Code ch. DHS 163 if both of these conditions apply:
- Condition One: The presence of lead-bearing paint or a lead hazard is assumed (e.g., testing is not done for the purpose of identifying lead-based paint), and
Condition Two: A renovation of a dwelling, unit of a dwelling, or premises is performed in a lead-safe manner (e.g., the testing is not done for the purpose of determining whether lead-safe certification and work practices are required for a renovation project).
If both of the above conditions apply, the person performing the partial lead inspection does not have to be certified or follow other provisions of Wis. Admin. Code ch. DHS 163. Before performing the partial lead inspection, the person has to disclose, in writing, to the owner or lessor of the dwelling or premises that the partial lead inspection being conducted is not a regulated activity and may not be used to declare the structure free of lead-based paint.
Questions? Give us a call at 608-261-6876, or email us if:
- You're planning a renovation and are not sure whether a lead inspection report you've been given means you don't need to have lead-safe certification or use lead-safe work practices.
- You don't know whether the partial lead inspection you will be conducting is regulated.
- You're a property owner and want to make sure you ask for the type of lead inspection that meets your needs.
Maximum Daily Civil Forfeiture Increased
The maximum daily civil forfeiture for each violation of Wis. Admin. Code ch. DHS 163 increased from $1,000 to $5,000. This incorporates the revisions made to Wis. Stat., ch 254, Environmental Health, by the 2016-2017 Wisconsin budget bill to bring Wisconsin's lead program into compliance with U.S. Environmental Protection Agency (EPA) requirements for the state lead programs it authorizes.
Work Practice Standards for Lead Abatement and Renovation Aligned
Wisconsin Admin. Code ch. DHS 163.14 (1) addresses work practice standards for abatement activities, and has been revised significantly to better align with the detailed standards already written into the rule that apply to lead-safe renovation. The new work practice standards for abatement activities are more specific. While there are still some important differences in the requirements for renovation and abatement (e.g., the types of certifications crew members need, the info that must be provided to occupants and property owners, requirements for notification to DHS, and post-activity reporting), the lead-safe work practices required for both types of work are standardized and look mostly the same. For example, pre-cleaning is now required before setting up containment for both lead-safe renovation and lead abatement projects. This prevents paint chips from being walked on and ground up into a fine powder that is harder to clean up at the end of the day.
Requirements Clarified for Abatement Notice and Occupant Protection Plan
The requirements for abatement notices are more specific. Projects must start on the start date provided in the notice, and are limited to 14 days' duration. If a project is delayed and won't start on time, revise the notice to DHS as soon as you know and no later than the start date on the original notice. If a project will take longer than you thought it would, revise the notice to change the end date no later than the original (or most recent revised, if applicable) notice to DHS. If you don't revise it by then, you must submit a new notice and wait at least two business days before conducting those additional activities.
In addition, the written occupant protection plan prepared by the lead abatement supervisor before starting a project is now required to be posted in plain view outside the work area, not just made available on site.
"Testing Combination" Concept for Lead Risk Assessment and Inspection
The rule has been revised to better align with the U.S. Department of Housing and Urban Development's (HUD) Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, in particular, with Chapter 7: Lead-Based Paint Inspection. Instead of relying on visual appearance, testing combinations will be used to determine which surfaces have a distinct paint history and need to be tested separately for lead-based paint during an inspection or risk assessment (when lead-based paint is not assumed).
"Testing combination" means a unique combination of:
- Room equivalent (e.g. ;bedroom 1, bathroom, kitchen, utility/laundry room, exterior)
- Building component type (e.g., window sill, door, door trim, floor, gutter)
- Substrate (e.g., wood, metal, plaster, drywall, concrete, brick)
Some examples of testing combinations include:
- Bedroom 1, window sill, wood
- Bathroom, baseboard, wood
- Utility/laundry room, floor, concrete
- Exterior, gutter, metal
This means that you are required by rule to test, for example, just one wooden window sill in bedroom 1, even if there are several other wooden window sills in bedroom 1. However, if there is a metal window sill in Bedroom 1, it requires its own test as it is a different testing combination. Similarly, if bedroom 2 has a wood window sill, you cannot group it with the window you tested in bedroom 1. It is a different testing combination because the room has changed.Note: When using an X-Ray fluorescence device (XRF), each interior and exterior wall must be tested separately. Take at least four readings in each room equivalent, one on each wall.
Dust Lead Hazard Standards and Clearance Levels Strengthened
Wisconsin's hazard standards and clearance levels are now as protective as federal standards, so there's no need to reference different sets of standards set by the EPA and HUD. Read more about the new values.