Wisconsin Legislature: DHS 159.44(2)(e)

2. A regulated asbestos activity is being or has been conducted.

3. Asbestos waste or alleged asbestos waste is stored or disposed.

4. Business relating to regulated asbestos activities is conducted or records relating to a regulated activity are stored.

(b) The department representative may conduct tests, interview persons, take samples, review work practices, review and copy records, and conduct other activities to determine compliance with this chapter.

(c) An authorized representative of the department may conduct an onsite audit of a course to determine if an accredited training course meets requirements for accreditation.

(d) No person may refuse entry or access to any representative of the department authorized by the department to act under this subsection if that representative requests entry for the purposes of determining compliance with this chapter and the representative complies with par. (e). No person required to maintain records under s. DHS 159.19 (7) may refuse to permit access to records, refuse to provide original records to, or refuse to copy or permit the copying of records for, an authorized representative of the department, if that representative complies with par. (e). No person may obstruct, hamper, or interfere with the actions of the representative under this subsection.

(e) An authorized representative of the department entering the site of an investigation under this subchapter shall present identification and shall comply with applicable health and safety procedures established by law for persons engaged in asbestos abatement activities.

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

DHS 159.44 Reasons for enforcement actions.

(1) Reasons for accreditation enforcement actions. The department may take an action under s. DHS 159.45 against a person owning, managing, offering or conducting a training course that is regulated under this chapter, regardless whether the course is accredited, if the person has violated a provision of this chapter. The specific reason for an accreditation enforcement action may include, but is not limited to, any of the following:

(a) The person owes the department payment of fees.

(b) The person issued a training certificate to an individual who did not successfully complete an accredited course, or otherwise deceptively issued or used a training certificate.

(c) The person misrepresented the accreditation status of a training course or the contents of a training course to the department, EPA, another state, or the student population.

(d) The person made false or misleading statements to the department in the application for accreditation or reaccreditation.

(e) The person provided any false or misleading information to the department relating to a regulated activity.

(f) The person failed to establish or maintain records required under this chapter, or to give an authorized representative of the department copies of or access to such records.

(g) The person falsified records required under this chapter, including but not limited to accreditation records, class rosters, or other accreditation-related information or documentation.

(h) The person offered or conducted a course that failed to meet a requirement of this chapter.

(i) The person conducted a course using individuals who were not certified when certification was required or individuals who were not approved when approval was required.

(j) The person failed to comply with the accreditation standards and requirements under this chapter.

(k) The person failed to submit a required course notification or revised notification to the department in a timely manner.

(L) The person failed or refused to permit a department representative to attend, evaluate, or monitor a training course, without charge or hindrance.

(m) The person failed to respond to a letter of inquiry, a notice of noncompliance, or written order within the required time.

(n) The person failed to comply with a federal, state, or local government statute, rule, regulation, or ordinance relating to a regulated asbestos activity.

(2) Reasons for approval enforcement actions. The department may take an action under s. DHS 159.45 against a person required to be an approved principal instructor under this chapter, regardless whether the person is approved, if the person has violated a provision of this chapter. The specific reason for an approval enforcement action may include, but is not limited to, any of the following:

(a) The person owes the department payment of fees.

(b) The person failed to comply with accreditation standards and requirements under this chapter while instructing or supervising a department-regulated training course.

(c) The person failed to submit a required course notification or revised notification to the department in a timely manner.

(d) The person violated a provision of this chapter, including certification requirements, or a related federal, state, or local statute, rule, regulation, or ordinance.

(e) The person provided false or misleading information, or misrepresented credentials or documentation of qualifications submitted to the department as the basis for approval.

(f) The person provided any false or misleading information relating to a regulated activity to the department.

(g) The person issued a training certificate to an individual who did not successfully complete an accredited course, or otherwise deceptively issued a training certificate.

(h) The person failed to respond to a letter of inquiry, a notification of noncompliance or written orders within the required time.

(i) The person failed or refused to permit a department representative to attend, evaluate, or monitor a training course, without charge or hindrance.

(3) Reasons for certification enforcement actions. The department may take an action under s. DHS 159.45 against a person required to be certified under this chapter, regardless whether the person is certified, if the person has violated a provision of this chapter. The specific reason for a certification enforcement action may include, but is not limited to, any of the following:

(a) The person owes the department payment of fees.

(b) The person obtained training documentation by fraudulent means.

(c) The individual used a training certificate, or electronic equivalent, without having successfully completed the course for which the certificate was issued.

(d) The individual gained admission to and completed an accredited training program through misrepresentation of admission requirements.

(e) The person misrepresented facts or made false or misleading statements in applying for certification.

(f) The individual completed a course that was not in compliance with accreditation standards under this chapter.

(g) The person permitted the use of a training certificate or certification card by an individual to whom the certificate or card was not issued, or permitted duplication of a training certificate or card without labeling the duplicate a “copy.”

(h) The person withheld or confiscated an employee’s training certificate or certification card.

(i) The individual performed regulated work under provisional certification without meeting all conditions for provisional certification.

(j) The person allowed an individual to work without supervision when supervision was required.

(k) The person conducted regulated work requiring certification without being certified by the department.

(L) The individual performed work that required certification without having proof of certification at the job site in violation of s. DHS 159.13 (4) (c).

(m) The person conducted, advertised, claimed to provide, or offered to conduct or supervise work for which certification was required, without being appropriately certified.

(n) The person conducted work using individuals who were not certified when certification was required or individuals who were not approved when approval was required.

(o) The person failed to establish or maintain records required under this chapter, or to give an authorized representative of the department copies of or access to such records by.

(p) The person failed or refused to permit entry to or inspection of a work site or place of business by an authorized representative of the department.

(q) The person displayed conduct relating to a regulated asbestos activity that in the department’s judgment constitutes unreasonable risk to the health or safety of a person or the environment.

(r) The person displayed a pattern of conduct that in the department’s judgment constitutes unreasonable risk to the health or safety of persons or the environment.

(s) The person obtained certification when not eligible for certification.

(t) The person failed to comply with a federal, state, or local government statute, rule, regulation, or ordinance relating to a regulated asbestos activity.

(u) The person failed to submit a completed and timely notification under s. DHS 159.19 (2) or 159.20.

(v) The person failed to respond to a letter of inquiry, a notice of noncompliance or written order within the required time.

(w) The person provided false or misleading information to the department relating to a regulated activity.

(4) Reasons for denial. In addition to the reasons for enforcement actions under subs. (1) to (3), the department may deny an application for certification, recertification, accreditation, renewal of accreditation or approval for any of the following reasons:

(a) A person’s certification, accreditation, or approval under this chapter was revoked within the previous 5 years.

(b) The department determines that the person is not fit and qualified. In determining whether the person is fit and qualified, the department shall consider the person’s qualifications and any history of civil or criminal violations of statutes, regulations or ordinances of the United States, this state, any other state, or a local government, that are substantially related to regulated asbestos activities or other environmental remediation.

(d) The person seeks to renew contingent accreditation of a training course that has remained in contingent accreditation status for three years without obtaining full accreditation.

(5) Reasons for summary suspension. The reasons the department may impose summary suspension under s. DHS 159.45 (7) include, but are not limited to, the following:

(a) A person commits a substantial violation of s. 254.20 or 254.21, Stats., this chapter, or an order issued under s. DHS 159.45 (3), involving any of the following:

1. Performing work requiring certification without being appropriately certified.

2. Performing work using individuals who are not certified when certification is required.

3. Failing or refusing to comply with work practice standards under s. DHS 159.13 or under s. DHS 159.21 to ensure that employed or contracted personnel comply with work practice standards.

(b) A person commits any other action, or creates a condition relating to a regulated asbestos activity, that directly threatens the health, safety, or welfare of a person or the environment.

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

DHS 159.45 Enforcement actions. The department may take one or more of the following actions for any applicable reason stated under s. DHS 159.44 against a person required to comply with this chapter:

(1) Letter of inquiry. The department may issue a non-appealable letter of inquiry regarding a potential violation of a provision of this chapter or s. 254.20 or 254.21, Stats.

(2) Notice of noncompliance. The department may issue a non-appealable notice of noncompliance for a violation of a provision of this chapter or s. 254.20 or 254.21, Stats.

(3) Order. The department may issue any of the following orders, which shall be effective upon issuance, when a person violates a provision of this chapter or s. 254.20 or 254.21, Stats., if the department provides written notice of the grounds for the order and an explanation of the process for appeal of the order under s. DHS 159.46:

(a) That the person stop performing, supervising, advertising, claiming to provide or offering to perform activities for which certification is required under this chapter.

(b) That the person stop advertising, claiming to provide, offering, or conducting a training course for which accreditation is required under this chapter or which is represented as qualifying an individual for certification under this chapter.

(c) That the individual stop serving as a principal instructor for a training course for which accreditation under this chapter is required.

(d) That the person stops violating a provision of this chapter or a federal, state, or local asbestos statute, rule, or ordinance.

(e) That within a specified time the person submits for department approval, and implements as approved by the department, a plan of correction for a violation of any provision under this chapter.

(f) That within a specified time the person implements and complies with a plan of correction provided by the department or previously submitted by the person and approved by the department.

(4) Denial. The department may deny an application for certification, accreditation, or approval under this chapter if the department provides written notice of the decision to deny the application that includes the reason for denial and an explanation of the process for appeal under s. DHS 159.46.

(5) Civil forfeiture. The department may impose a daily forfeiture under subch. II of ch. 254, Stats., against any person who violates a provision of this chapter or s. 254.20 or 254.21, Stats., fails to respond to a letter of inquiry or a notice of non-compliance by the time specified in the letter or notice, or fails to comply with an order issued under sub. (3) by the time specified in the order, if the department provides written notice of the grounds for forfeiture and an explanation of the process for appeal under s. DHS 159.46. All of the following apply to a civil forfeiture:

(a) The department may directly assess a forfeiture by specifying the amount of the forfeiture in the notice provided under this subsection.

(b) Each day of continued violation constitutes a separate offense.

(c) A person against whom the department assesses a forfeiture shall pay the forfeiture to the department within 10 working days after receiving notice of the forfeiture assessment or, if the person appeals the assessment under s. DHS 159.46, within 10 working days after receiving the final decision of administrative review or, if the person petitions for judicial review under ch. 227, Stats., within 10 working days after receiving the final decision of judicial review. The department shall remit all forfeitures paid under this subsection to the state treasurer for deposit in the school fund.

Note: Section 254.20 (11), Stats., provides that a person who violates this chapter or an order issued under s. 254.20, Stats., shall forfeit not less than $25 nor more than $100 for each day of a violation. The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this subsection that has not been paid.

(6) Suspension. The department may suspend certification, accreditation or approval issued under this chapter if the department provides written notice of the suspension, the grounds for suspension and an explanation of the process for appeal under s. DHS 159.46 not less than 30 days before the date of the suspension, and the violation on which the suspension is based remains substantially uncorrected at the end of the 30-day period. Suspension is effective 30 days from the date of the notice, unless the department notifies the person that substantial compliance has been achieved. A suspension shall remain in effect, regardless whether it is appealed, until the department determines that the interests of the residents of the state are served or a final decision issued in an appeal reverses the department’s action. No person may perform an activity for which certification, accreditation or approval has been suspended.

(7) Summary suspension.

(a) The department may summarily suspend certification, accreditation, or approval under the authority of s. 227.51 (3), Stats., based on but not limited to one of the reasons under s. DHS 159.44 (5), if the department finds that the health, safety or welfare of any person imperatively requires emergency action and incorporates a finding to that effect in the order.