Chapter DHS 159

DHS 159.43(3)(d) (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.

DHS 159.43(3)(e) (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.

DHS 159.43 History History: CR 08-036: cr. Register February 2009 No. 638, eff. 5-1-09.

DHS 159.44 DHS 159.44 Reasons for enforcement actions.

DHS 159.44(1) (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:

DHS 159.44(1)(a) (a) The person owes the department payment of fees.

DHS 159.44(1)(b) (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.

DHS 159.44(1)(c) (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.

DHS 159.44(1)(d) (d) The person made false or misleading statements to the department in the application for accreditation or reaccreditation.

DHS 159.44(1)(e) (e) The person provided any false or misleading information to the department relating to a regulated activity.

DHS 159.44(1)(f) (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.

DHS 159.44(1)(g) (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.

DHS 159.44(1)(h) (h) The person offered or conducted a course that failed to meet a requirement of this chapter.

DHS 159.44(1)(i) (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.

DHS 159.44(1)(j) (j) The person failed to comply with the accreditation standards and requirements under this chapter.

DHS 159.44(1)(k) (k) The person failed to submit a required course notification or revised notification to the department in a timely manner.

DHS 159.44(1)(L) (L) The person failed or refused to permit a department representative to attend, evaluate, or monitor a training course, without charge or hindrance.

DHS 159.44(1)(m) (m) The person failed to respond to a letter of inquiry, a notice of noncompliance, or written order within the required time.

DHS 159.44(1)(n) (n) The person failed to comply with a federal, state, or local government statute, rule, regulation, or ordinance relating to a regulated asbestos activity.

DHS 159.44(2) (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:

DHS 159.44(2)(a) (a) The person owes the department payment of fees.

DHS 159.44(2)(b) (b) The person failed to comply with accreditation standards and requirements under this chapter while instructing or supervising a department-regulated training course.

DHS 159.44(2)(c) (c) The person failed to submit a required course notification or revised notification to the department in a timely manner.

DHS 159.44(2)(d) (d) The person violated a provision of this chapter, including certification requirements, or a related federal, state, or local statute, rule, regulation, or ordinance.

DHS 159.44(2)(e) (e) The person provided false or misleading information, or misrepresented credentials or documentation of qualifications submitted to the department as the basis for approval.

DHS 159.44(2)(f) (f) The person provided any false or misleading information relating to a regulated activity to the department.

DHS 159.44(2)(g) (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.

DHS 159.44(2)(h) (h) The person failed to respond to a letter of inquiry, a notification of noncompliance or written orders within the required time.

DHS 159.44(2)(i) (i) The person failed or refused to permit a department representative to attend, evaluate, or monitor a training course, without charge or hindrance.

DHS 159.44(3) (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:

DHS 159.44(3)(a) (a) The person owes the department payment of fees.

DHS 159.44(3)(b) (b) The person obtained training documentation by fraudulent means.

DHS 159.44(3)(c) (c) The individual used a training certificate, or electronic equivalent, without having successfully completed the course for which the certificate was issued.

DHS 159.44(3)(d) (d) The individual gained admission to and completed an accredited training program through misrepresentation of admission requirements.

DHS 159.44(3)(e) (e) The person misrepresented facts or made false or misleading statements in applying for certification.

DHS 159.44(3)(f) (f) The individual completed a course that was not in compliance with accreditation standards under this chapter.

DHS 159.44(3)(g) (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.”

DHS 159.44(3)(h) (h) The person withheld or confiscated an employee’s training certificate or certification card.

DHS 159.44(3)(i) (i) The individual performed regulated work under provisional certification without meeting all conditions for provisional certification.

DHS 159.44(3)(j) (j) The person allowed an individual to work without supervision when supervision was required.

DHS 159.44(3)(k) (k) The person conducted regulated work requiring certification without being certified by the department.

DHS 159.44(3)(L) (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).

DHS 159.44(3)(m) (m) The person conducted, advertised, claimed to provide, or offered to conduct or supervise work for which certification was required, without being appropriately certified.

DHS 159.44(3)(n) (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.

DHS 159.44(3)(o) (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.

DHS 159.44(3)(p) (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.

DHS 159.44(3)(q) (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.

DHS 159.44(3)(r) (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.

DHS 159.44(3)(s) (s) The person obtained certification when not eligible for certification.

DHS 159.44(3)(t) (t) The person failed to comply with a federal, state, or local government statute, rule, regulation, or ordinance relating to a regulated asbestos activity.

DHS 159.44(3)(u) (u) The person failed to submit a completed and timely notification under s. DHS 159.19 (2) or 159.20.

DHS 159.44(3)(v) (v) The person failed to respond to a letter of inquiry, a notice of noncompliance or written order within the required time.

DHS 159.44(3)(w) (w) The person provided false or misleading information to the department relating to a regulated activity.

DHS 159.44(4) (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:

DHS 159.44(4)(a) (a) A person’s certification, accreditation, or approval under this chapter was revoked within the previous 5 years.

DHS 159.44(4)(b) (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.

DHS 159.44(4)(c) (c) The person submitted false or inaccurate information in the application process.

DHS 159.44(4)(d) (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.

DHS 159.44(5) (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:

DHS 159.44(5)(a) (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:

DHS 159.44(5)(a)1. 1. Performing work requiring certification without being appropriately certified.

DHS 159.44(5)(a)2. 2. Performing work using individuals who are not certified when certification is required.

DHS 159.44(5)(a)3. 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.

DHS 159.44(5)(b) (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.

DHS 159.44 History History: CR 08-036: cr. Register February 2009 No. 638, eff. 5-1-09.

DHS 159.45 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:

DHS 159.45(1) (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.

DHS 159.45(2) (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.

DHS 159.45(3) (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:

DHS 159.45(3)(a) (a) That the person stop performing, supervising, advertising, claiming to provide or offering to perform activities for which certification is required under this chapter.

DHS 159.45(3)(b) (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.

DHS 159.45(3)(c) (c) That the individual stop serving as a principal instructor for a training course for which accreditation under this chapter is required.

DHS 159.45(3)(d) (d) That the person stops violating a provision of this chapter or a federal, state, or local asbestos statute, rule, or ordinance.

DHS 159.45(3)(e) (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.

DHS 159.45(3)(f) (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.

DHS 159.45(4) (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.

DHS 159.45(5) (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:

DHS 159.45(5)(a) (a) The department may directly assess a forfeiture by specifying the amount of the forfeiture in the notice provided under this subsection.

DHS 159.45(5)(b) (b) Each day of continued violation constitutes a separate offense.

DHS 159.45(5)(c) (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.

DHS 159.45 Note 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.

DHS 159.45(6) (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.

DHS 159.45(7) (7) Summary suspension.

DHS 159.45(7)(a) (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.

DHS 159.45(7)(b) (b) An order for summary suspension shall be in writing and is effective immediately upon issuance. A person may not perform any activity for which certification, accreditation, or approval has been summarily suspended. Within 7 working days after an order is given, the department shall either permit the continuation of the regulated activity or initiate proceedings to revoke certification. If the department initiates revocation proceedings, an informal hearing on the sole issue of whether certification, accreditation or approval shall remain suspended during revocation proceedings shall be conducted by a department representative or designee within 15 working days after the date of suspension, unless waived by the person subject to the order.

DHS 159.45(8) (8) Revocation. The department may revoke a certification, accreditation or approval issued under this chapter if the department provides written notice of the revocation, including the grounds for revocation and an explanation of the process for appealing a revocation under s. DHS 159.46, not less than 30 days before the date the revocation will take effect, and the violation on which the revocation is based remains substantially uncorrected at the end of the 30-day notice period. Revocation is effective 30 days from the date of the notice, unless the department notifies the person that substantial compliance has been achieved. A revocation shall remain in effect, regardless whether it is appealed, until the person reapplies for certification, accreditation or approval, and 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 revoked.

DHS 159.45 History History: CR 08-036: cr. Register February 2009 No. 638, eff. 5-1-09.

DHS 159.46 DHS 159.46 Appeals.

DHS 159.46(1) (1) Right to appeal. An action taken by the department under s. DHS 159.45 (3) to (8) is subject to review under ch. 227, Stats. To request a hearing under ch. 227, Stats., the aggrieved person shall submit a written request to the department of administration’s division of hearings and appeals within 15 calendar days after the date of the department’s action.