Chapter DHS 159

DHS 159.03(1) (1) The department may, upon request or its own initiative, approve an alternative to any requirement in this chapter, which is not mandated by state statue or federal law, if the department determines that the alternative is as protective of human health and the environment as the requirement.

DHS 159.03(2) (2) A request for approval of an alternative to a requirement shall be made in writing to the department and include all of the following:

DHS 159.03(2)(a) (a) Identification of the specific rule requirement for which the alternative is requested.

DHS 159.03(2)(b) (b) The reason for the request.

DHS 159.03(2)(c) (c) A description of the alternative.

DHS 159.03(2)(d) (d) The time period for which the alternative is requested.

DHS 159.03(2)(e) (e) Proof that the alternative is as protective of human health and the environment as strict compliance with the rule.

DHS 159.03(2)(f) (f) Any other information requested by the department.

DHS 159.03(3) (3) Within 30 days after receiving a written request for comparable compliance, the department shall approve or deny the request in writing. If the department denies the request, the reason for the denial shall be stated. If the department approves a request for alternative compliance, the department may do any of the following:

DHS 159.03(3)(a) (a) Impose any condition on an alternative which the department deems necessary.

DHS 159.03(3)(b) (b) Modify the alternative.

DHS 159.03(3)(c) (c) Limit the duration of an alternative.

DHS 159.03(3)(d) (d) Revoke approval of an alternative if any of the following occurs:

DHS 159.03(3)(d)1. 1. The alternative adversely affects the health, safety or welfare of persons or the environment.

DHS 159.03(3)(d)2. 2. The person fails to comply with any terms or conditions of the approval.

DHS 159.03(3)(d)3. 3. There is a change in applicable law.

DHS 159.03(4) (4) The department may charge a fee of up to $100 to review a request for an alternative.

DHS 159.03(5) (5) The department’s denial of a request for comparable compliance is a final decision of the department and is not subject to a hearing under s. DHS 159.46.

DHS 159.03 History History: CR 08-036: cr. Register February 2009 No. 638, eff. 5-1-09.

DHS 159.04 DHS 159.04 Definitions. In this chapter:

DHS 159.04(1) (1) “Accreditation” means approval by the department of a training course for a specific discipline based on its compliance with subch. IV.

DHS 159.04(2) (2) “AHERA” means 40 CFR 763, Subpart E, the asbestos-containing materials in schools rule promulgated by EPA under the authority of 15 USC 2643, the asbestos hazard emergency response act of 1986 as amended by the asbestos school hazard abatement reauthorization act of 1990.

DHS 159.04(3) (3) “Asbestos” means chrysotile, crocidolite, amosite, fibrous tremolite, fibrous actinolite or fibrous anthophyllite.

DHS 159.04(4) (4) “Asbestos abatement activity” means any activity that disturbs asbestos-containing material, including but not limited to, the repair, enclosure, encapsulation, or removal of asbestos-containing material and the repair, operation, service, maintenance, renovation or demolition of any part of a facility where asbestos-containing material or suspect asbestos-containing material is present, including all associated set up of work-site containment, clean-up and loading-out of asbestos-containing material for disposal and any air sampling or air monitoring conducted before, during or after the activity to determine that the containment or regulated area is intact or that clean-up is complete and the containment or regulated area can be disassembled.

DHS 159.04(5) (5) “Asbestos company” means a person that performs, supervises, or offers to perform or supervise a regulated asbestos activity. “Asbestos company” includes an exterior asbestos company.

DHS 159.04(6) (6) “Asbestos-containing material” or “ACM” means a material or product that contains more than 1% of asbestos, as determined using the method specified in 40 CFR Part 763, Appendix E to Subpart E, Section I, “Polarized Light Microscopy,” and a material meeting the definition of suspect asbestos-containing material.

DHS 159.04 Note Note: In Appendix E to Subpart E, 40 CFR Part 763, Section I, EPA describes the acceptable method of identifying asbestos-containing materials, which uses polarized light microscopy (PLM). If the asbestos content of friable asbestos-containing material is less than 10%, as determined by a method other than point counting by PLM, EPA requires the asbestos content to be verified by point counting using PLM.

DHS 159.04(7) (7) “Asbestos inspection” means any activities undertaken to specifically determine the presence or location or assess the condition of asbestos-containing material or suspect asbestos-containing material, by visual or physical examination or by collecting a sample or samples of the materials. “Asbestos inspection” includes re-inspection of known or suspect asbestos-containing material that has been previously identified. “Asbestos inspection” does not include:

DHS 159.04(7)(a) (a) Visual inspections of the type described in 40 CFR 763.90 (i) that are conducted solely to determine the completeness of response actions in schools.

DHS 159.04(7)(b) (b) Periodic surveillance of the type described in 40 CFR 763.92 (b) that are conducted solely for recording or reporting a change in the condition of known or suspect asbestos-containing material.

DHS 159.04(7)(c) (c) Inspections conducted by employees or agents of federal, state or local government solely for determining compliance with applicable statutes or regulations.

DHS 159.04(8) (8) “Asbestos inspector” means an individual who performs asbestos inspections.

DHS 159.04(9) (9) “Asbestos management activity” means an inspection for asbestos-containing material, including collecting a sample of material, the design of an asbestos abatement activity or school asbestos response action, or the development of an asbestos management plan.

DHS 159.04(10) (10) “Asbestos management plan” means the document that specifies the plan for managing known or suspect asbestos-containing material in or on a facility to protect the occupants and the environment.

DHS 159.04(11) (11) “Asbestos management planner” means an individual who develops written plans to manage asbestos in or on a facility and make recommendations for the best response actions to be taken to manage asbestos-containing material in or on the facility.

DHS 159.04(12) (12) “Asbestos project designer” means an individual who develops written plans and designs for asbestos abatement activities.

DHS 159.04(13) (13) “Asbestos supervisor” means an individual who performs, or oversees or directs the performance of, asbestos abatement activities or conducts air sampling associated with asbestos abatement activities.

DHS 159.04(14) (14) “Asbestos training activity” means offering or providing a training course required for certification under subch. II.

DHS 159.04(15) (15) “Asbestos worker” means an individual who performs asbestos abatement activities.

DHS 159.04(16) (16) “Certification” means authorization by the department to conduct, supervise or offer to conduct or supervise asbestos abatement activities or asbestos management activities as issued to an individual in the form of a photo identification card or to an asbestos company in the form of a certificate.

DHS 159.04(17) (17) “Classroom contact hour” means 60 minutes of instructional activities, not including breaks and lunch.

DHS 159.04(18) (18) “Contingent approval” means an accreditation status that is provisionally granted based on a review of written training course curriculum and other information and materials that describe the training course.

DHS 159.04(19) (19) “Department” means the Wisconsin department of health services.

DHS 159.04(20) (20) “Designated person” means the individual who is authorized to act on behalf of the local education agency regarding asbestos work and who works with the local education agency to ensure compliance with EPA requirements under 40 CFR 763, Subpart E and with all other federal and state asbestos regulations.

DHS 159.04(21) (21) “Direct supervision” means supervision by a certified asbestos supervisor who is onsite during an asbestos abatement activity and readily available to observe and assist.

DHS 159.04(22) (22) “Disposal bag” means a heavy duty, impervious waste bag or glove bag.

DHS 159.04(23) (23) “DNR” means the Wisconsin department of natural resources.

DHS 159.04(24) (24) “DOT” means the Wisconsin department of transportation.

DHS 159.04(25) (25) “Encapsulation” means the treatment of asbestos-containing material with a product specifically designed to surround or embed asbestos fibers in an adhesive matrix.

DHS 159.04(26) (26) “Enclosure” means an airtight, impermeable, permanent barrier around asbestos-containing material.

DHS 159.04(27) (27) “EPA” means the U.S. environmental protection agency.

DHS 159.04(28) (28) “Exterior asbestos company” means an asbestos company that conducts, supervises or offers to conduct or supervise regulated asbestos activities limited to non-friable asbestos-containing material that remains non-friable, on the exterior, or building envelope, of a facility.

DHS 159.04(29) (29) “Exterior asbestos supervisor” means an individual who performs, or oversees or directs the performance of, asbestos abatement activities involving only non-friable asbestos-containing material that remains non-friable, on the exterior, or building envelope, of a facility.

DHS 159.04(30) (30) “Exterior asbestos worker” means an individual who performs asbestos abatement activities involving only non-friable asbestos-containing material that remains non-friable, on the exterior, or building envelope, of a facility.

DHS 159.04 Note Note: If asbestos work conducted from the exterior of a building penetrates the building envelope then it is no longer exterior asbestos work and may not be performed by an exterior asbestos company, exterior asbestos supervisor or exterior asbestos worker. For work to be considered exterior asbestos work, which may be performed by an exterior asbestos company, the following must be true: 1) the material is non-friable and will remain non-friable throughout the project; 2) the asbestos work is performed only from the outside of the building and on the outside of the building; and 3) no air exchange may occur between the interior and exterior of the building. For window work to be considered exterior work, an impermeable barrier needs to be placed behind the window opening on the interior of the building before work starts to maintain complete separation of interior and exterior spaces.

DHS 159.04(31) (31) “Facility” means any institutional, commercial, public, industrial or residential structure or building.

DHS 159.04(32) (32) “Friable asbestos-containing material” means asbestos-containing material that, when dry, can be crumbled, pulverized or reduced to powder by hand pressure, including previously non-friable asbestos-containing material when that material is damaged to the extent that when dry it may be crumbled, pulverized or reduced to powder by hand pressure.

DHS 159.04(33) (33) “Full accreditation” means final approval status granted to a training course after an onsite audit of the training course determines that the course is in full compliance with this chapter.

DHS 159.04(34) (34) “Glove bag” means an impervious plastic bag-like enclosure with built-in glove appendages for handling tools and asbestos-containing materials that is meant to be affixed around an asbestos-containing material to provide a barrier between the operator and the enclosed material.

DHS 159.04(35) (35) “Guest instructor” means an individual designated by a training provider to assist the principal instructor with hands-on activities or to teach one or more topical areas under the general supervision of the principal instructor.

DHS 159.04(36) (36) “HEPA” means high efficiency particulate air filtration.

DHS 159.04(37) (37) “Initial certification” means the first certification that the department grants an individual for a specific discipline or a certification the department grants after a lapse in certification of 12 months or more.

DHS 159.04(38) (38) “Local educational agency” or “LEA” means any of the following:

DHS 159.04(38)(a) (a) A public board of education or other public authority, institution or agency legally constituted for administrative control or direction of a public school that provides elementary or secondary education, including kindergarten and pre-kindergarten but excluding education provided beyond grade 12.

DHS 159.04(38)(b) (b) The owner of a private, nonprofit school that provides elementary or secondary education, including kindergarten and pre-kindergarten but excluding education provided beyond grade 12.

DHS 159.04(38)(c) (c) The governing authority of a school operated under the Defense Dependents’ Education Act of 1978 under 20 USC 921 et seq.

DHS 159.04(39) (39) “NESHAP” means 40 CFR 61, the national emission standards for hazardous air pollutants regulation.

DHS 159.04 Note Note: NESHAP is administered in this state by DNR under ch. NR 447 on behalf of EPA.

DHS 159.04(40) (40) “Operations and maintenance” or “O & M” means the repair, operation, service or maintenance of a building that may result in the disturbance of asbestos-containing material or suspect asbestos-containing material.

DHS 159.04(41) (41) “OSHA” means the U.S. occupational safety and health administration.

DHS 159.04(42) (42) “Person” means an individual or entity, including a sole proprietorship, corporation, limited liability corporation, partnership, association, church, school, college or university, state, local or tribal government agency, political subdivision of a state, interstate body, or department, agency or other instrumentality of the federal government.

DHS 159.04(43) (43) “Planned renovation project” means a renovation or a number of renovations in a facility, during which a number of asbestos abatement activities are planned or expected to occur within a given period of time.

DHS 159.04(44) (44) “Principal instructor” means an individual approved by the department under subch. V to teach and supervise an accredited asbestos training course.

DHS 159.04(45) (45) “Regulated area” means an area where an asbestos abatement activity is conducted, and adjoining areas where debris and waste from the asbestos abatement activity accumulate.

DHS 159.04(46) (46) “Regulated asbestos activity” means an asbestos abatement activity, asbestos management activity, or asbestos training activity for which certification or accreditation is required under this chapter.

DHS 159.04(47) (47) “Removal” means taking out any or all asbestos-containing material or suspect asbestos-containing material in or on a facility or taking out any or all facility components that contain or are covered with asbestos-containing material or suspect asbestos-containing material.

DHS 159.04(48) (48) “School” means an educational institution that provides elementary or secondary instruction, including kindergarten and pre-kindergarten but excluding education provided beyond grade 12.

DHS 159.04(49) (49) “School building” means a building or an area of a building under the control of a local education agency when the building or area is any of the following:

DHS 159.04(49)(a) (a) A structure suitable for use as a classroom, including a school facility such as a laboratory, library, school eating facility or a facility used for the preparation of food.

DHS 159.04(49)(b) (b) A gymnasium or other facility which is specially designed for athletic or recreational activities for an academic course in physical education.

DHS 159.04(49)(c) (c) Any other facility used for the instruction or housing of students, or for the administration of educational or research programs.

DHS 159.04(49)(d) (d) A maintenance, storage, or utility facility, including any hallway, essential to the operation of a facility under par. (a), (b), or (c).

DHS 159.04(49)(e) (e) A portico or covered exterior hallway or walkway of a facility under par. (a), (b), (c) or (d).

DHS 159.04(49)(f) (f) An exterior portion of a mechanical system used to condition interior space of a facility under par. (a), (b), (c) or (d).

DHS 159.04(50) (50) “Suspect asbestos-containing material” means vermiculite insulation, unless a recommended EPA sampling and analysis protocol specific to vermiculite insulation proves that it does not contain asbestos, and any untested material used in or on a building component, except for metal, glass, wood, or fiberglass.

DHS 159.04(51) (51) “Training day” means 6 to 8 hours of classroom contact time, not including breaks and lunch times.

DHS 159.04(52) (52) “Training provider” means a person that owns, provides or offers to provide a training course for which accreditation is required under this chapter.

DHS 159.04(53) (53) “Vermiculite insulation” means vermiculite that has been expanded through a heating process and is used as loose-fill building insulation. It is a “suspect asbestos-containing material” under sub. (50).

DHS 159.04 Note Note: Vermiculite insulation is assumed to be asbestos-containing material unless proven otherwise in accordance with EPA recommended sampling and analysis protocols specific to vermiculite insulation. As of the publication of this chapter, the EPA has not published official guidance for sampling and testing protocols to test for the presence or absence of asbestos in vermiculite insulation. When recommended protocols are published, vermiculite insulation may be sampled and analyzed using the EPA recommended protocols to determine any asbestos content. Until such time, vermiculite insulation must be assumed to contain asbestos and be treated as an asbestos-containing material under this chapter.