Chapter DHS 159

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DHS 159.44(4)(a) (a) A person’s certification, accreditation, or approval under this chapter was revoked within the previous 5 years.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

DHS 159.46(2) (2) Appeals process.

DHS 159.46(2)(a) (a) Filing date. A request for hearing that is mailed to the division of hearings and appeals shall be considered filed with the division on the date of the postmark. A request for a hearing that is hand-delivered to the division of hearings and appeals shall be considered filed on the date the request is received by the division of hearings and appeals. A request for a hearing that is transmitted by facsimile to the division of hearings and appeals shall be considered filed on the date and at the time imprinted by the division’s facsimile machine on the transaction report that accompanies the document. Documents received by facsimile after midnight local time shall be deemed filed on the first following business day.

DHS 159.46(2)(b) (b) Content of appeal. Appeals shall contain the following information:

DHS 159.46(2)(b)1. 1. The name and address of the person requesting the hearing.

DHS 159.46(2)(b)2. 2. A description of the action that is being contested and a copy of the department’s notice of action.

DHS 159.46(2)(b)3. 3. A concise statement of the reasons for objecting to the action.

DHS 159.46(2)(b)4. 4. The type of relief requested.

DHS 159.46(2)(b)5. 5. A request for hearing.

DHS 159.46(2)(c) (c) Service on department. The person requesting a hearing shall submit a copy of the hearing request to the department on the same day the request is filed with the division of hearings and appeals.

DHS 159.46(3) (3) Administrative hearing. The division of hearings and appeals shall conduct an administrative hearing under s. 227.42, Stats.

DHS 159.46 Note Note: A request for a hearing shall be submitted to the Division of Hearings and Appeals, 5005 University Ave, Suite 201, Madison, WI 53705-5400, or faxed to 608-264-9885. A copy of the request for hearing shall be submitted to the department at 1 W. Wilson St, Room 137, PO Box 2659, Madison, WI 53701-2659 or faxed to 608-261-6876.

DHS 159.46 History History: CR 08-036: cr. Register February 2009 No. 638, eff. 5-1-09.

subch. VII of ch. DHS 159 Subchapter VII — Designated Asbestos Person

Subch. VII of ch. DHS 159 Note Note: The purpose of this subchapter is to assist local education agencies (LEA’s) in complying with the U.S. EPA school asbestos regulations under 40 CFR 763, Subpart E (AHERA). The department needs contact information for the designated asbestos person for communication regarding regulatory and other asbestos issues.

DHS 159.47 DHS 159.47 Responsibilities of a local education agency.

DHS 159.47(1) (1) A local education agency shall designate an individual to serve as the designated asbestos person, also known as the designated person, under AHERA.

DHS 159.47(2) (2) The local education agency shall ensure that the designated asbestos person is trained to conduct duties assigned under this subchapter and shall maintain documentation that the training has been completed. Training shall provide basic knowledge of all the following:

DHS 159.47(2)(a) (a) Health effects of asbestos.

DHS 159.47(2)(b) (b) Detection, identification and assessment of asbestos-containing material.

DHS 159.47(2)(c) (c) Options for controlling asbestos-containing material.

DHS 159.47(2)(d) (d) Asbestos management programs.

DHS 159.47(2)(e) (e) Relevant federal and state regulations.

DHS 159.47(3) (3) The local education agency shall notify the department by November 1, 2009, and annually by October 1 thereafter, of the name and contact information of the designated asbestos person on a form obtained from the department.

DHS 159.47 Note Note: Training may be obtained by taking a training course for designated school asbestos coordinators or by reading and understanding “How to Manage Asbestos in School Buildings, AHERA Designated Person’s Self-Study Guide,” which may be ordered by contacting the TSCA Hotline at 202-554-1404 between 7:30 a.m. and 4:00 p.m. Monday though Friday. For contact information about training providers that may offer designated asbestos person training, call 608-261-6876.

DHS 159.47 Note Note: Forms are available on the department’s website at www.dhs.wi.gov/asbestos or may be obtained from the Asbestos and Lead Unit: [e-mail]; 608-261-6876; 1 W. Wilson St, Room 137, PO Box 2659, Madison, WI 53701-2659

DHS 159.47 History History: CR 08-036: cr. Register February 2009 No. 638, eff. 5-1-09.

DHS 159.48 DHS 159.48 Responsibilities of a designated asbestos coordinator.

DHS 159.48(1) (1) The designated asbestos person shall ensure that the LEA complies with AHERA requirements under 40 CFR 763, Subpart E.

DHS 159.48(2) (2) The designated asbestos person shall ensure that the LEA complies with this chapter.

DHS 159.48 Note Note: The entire AHERA regulation and related materials may be found on EPA’s Internet web site at http://www.epa.gov/asbestos/pubs/asbestos_in_schools.html. Publications may be ordered by contacting the TSCA Hotline at 202-554-1404 between 7:30 a.m. and 4:00 p.m. Monday though Friday.

DHS 159.48 History History: CR 08-036: cr. Register February 2009 No. 638, eff. 5-1-09.