5 Colo. Code Regs. § 1001-23-C-I
Background
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedures Act, section 24-4-103(4), C.R.S. and the Colorado Air Pollution Prevention and Control Act, sections 25-7-110 and 25-7-110.5, C.R.S.
Basis
U.S. Environmental Protection Agency ("US EPA") promulgated a regulation that allows states to promulgate US EPA-approved lead-based paint abatement programs and receive monies from US EPA to fund the initial development of state programs. ( 40 C.F.R. Part 745 .) In 1997, the Colorado Legislature passed an act granting the Commission authority to promulgate a regulatory program for lead-based paint abatement. (SB 97-136, Prevention, Intervention, and Reduction of Lead Exposure.)
Authority
The authority for this regulation is contained in the Colorado Air Pollution Prevention and Control Act ("Colorado Act"), sections 25-7-1101 through 1107, which provides the Commission the authority to develop and adopt a lead-based paint abatement program.
Purpose
The Colorado Legislature has declared that exposure of children to lead represents a significant environmental health problem that is preventable by developing a regulatory program that leads to the creation of housing and facilities where no significant lead-based paint hazard is present. In addition, the Legislature declared that the achievement of uniformity in the regulation of lead abatement practices and uniformity in the qualifications for and certification of persons who perform such abatement is necessary statewide. The purpose of this regulation is to protect children from exposure to lead from lead-based paint by regulating how lead-based paint abatement is conducted in "target housing" and "child-occupied facilities". As a result, the scope of Regulation Number 19, Part A is limited to homes constructed prior to 1978, child-occupied facilities, and only those projects where the intent is to abate lead-based paint hazards. Regulation Number 19, Part A is intended to fulfill the requirements of the Lead-based Paint Hazard Reduction Act of 1992, pertaining to target housing and child-care facilities. The Commission finds that the work practice requirements contained in Regulation Number 19, Part A are necessary for the protection of the public in targeted housing and child-care facilities.
Action Taken
The Commission concludes that adoption of this regulation is an appropriate step to begin to protect children from exposure to lead from lead-based paint as a result of lead-based paint abatement in "target housing" and "child-occupied facilities". At this time, the Commission adopts language substantially similar to the federal lead-based paint abatement requirements. In the Commission's view, the requirements adopted will satisfy US EPA's requirements for a state lead-based paint abatement program.
Training and Certification
The Commission concludes that implementation of the training and certification provisions in this regulation will result in uniformity in the qualifications for and certification of persons who perform such abatement. The training and certification provisions will also aid in ensuring that trained and qualified individuals are available to advise consumers about lead hazards in general and about specific measures that may be needed to control such hazards. The training and certification requirements in the rule are identical to the training and certification requirements in the federal rule, except that the State rule:
Performance Standards and Practices
Pursuant to section 25-7-1103(1)(b), C.R.S., the Commission adopts performance standards and practices for lead abatement. The Commission concludes that the performance standards and practices in Regulation Number 19, Part A will result in uniformity in the regulation of lead abatement practices in the State of Colorado. These standards and practices require that abatement contractors employ consistent standards and procedures to remove, enclose, and encapsulate lead-based paint to remove lead hazards from target housing and child-occupied facilities. The standards and practices include US EPA's work practice standards and work practice measures that an abatement contractor must include in an occupant protection plan and comply with before, during, and after abatement. The work practice standards and measures were developed based upon US EPA's regulatory requirements and U.S. Department of Housing and Urban Development's ("HUD's") requirements.
The State rule includes work practices that are not required by the federal act, and that are, in some cases, otherwise more stringent than the federal requirements. The additional work practices in the State rule include the prohibition of uncontained hydroblasting and high-pressure washing, the prohibition of dry sanding, the restriction of chemical stripping, and the requirement that a supervisor be on-site at all times while abatement is occurring. Such requirements are not incorporated into the State implementation plan and, therefore, are consistent with section 25-7-105.1, C.R.S. In addition, the federal rule does not explicitly require the establishment of containment barriers; however, they do require an occupant protection plan that may require the use of containment barriers. The State rule expressly requires containment barriers.
US EPA requires a written occupant protection plan be developed for each residential dwelling or childoccupied facility prior to the abatement. (40 C.F.R. 745.227(e)(5).) The occupant protection plan "must describe the measures and management procedures that will be taken during the abatement to protect the building occupants from exposure to any lead-based paint hazards." (40 C.F.R. 745.227(e)(5)(i).) US EPA does not provide the abatement contractor the minimum abatement work practice measures that will be required for the occupant protection plan. The Commission pursuant to its authority in section 25-7- 1103(1)(b), C.R.S., adopts the work practice measures in Regulation Number 19, Part A as the minimum work practice measures that must be included in an occupant protection plan and followed during abatement to ensure building occupants are protected from exposure to any lead-based paint hazards.
Certain standards and methodologies adopted by the Commission were developed by the HUD. The Commission adopts such standards and methodologies, because:
The Commission adopts the requirement that a certified supervisor to be onsite during all work site preparation, abatement, and during post-abatement cleanup of the work areas, because such a practice is necessary to ensure workers properly conduct lead-based paint abatement. The Commission agrees that US EPA's requirement that a certified supervisor need only be reachable by telephone and is not required to be onsite is inadequate for the State of Colorado. In addition, the State rule contains project notification requirements and establishes a project clearance level.
The federal rule also requires notification but US EPA has not yet specified rules for such notification. US EPA may propose specific notification requirements before August 31, 1998. US EPA proposed a regulation for public comment identifying dangerous levels of lead in June of 1998. US EPA's proposal for soil hazard levels differs from HUD standard and the division's proposal by not including a separate, more stringent, standard for high contact play areas. Although US EPA's regulation is not final, it's justification for a single soil level is persuasive and the Commission adopts that single soil level.
Procedures for Approval of Trained Persons
Regulation Number 19, Part A, as adopted, includes procedures for the approval of persons or companies who provide training or accreditation for workers, supervisors, inspectors, risk assessors, or project designers performing lead-based paint activities in target housing or child-occupied facilities pursuant to the Commission's authority in section 25-7-1103(1)(c), C.R.S.
Notification of Appropriate Persons
The Commission finds that the notification requirements in Regulation Number 19, Part A are necessary and adequate to provide the Air Pollution Control Division ("Division") with notice of lead-based paint abatement projects occurring in the State of Colorado. The Division recommends that the Commission adopt a requirement that an abatement contractor notify the Division ten days prior to the commencement of lead-based paint abatement activities if the amount of lead-based paint, lead contaminated soil, or lead contaminated dust is greater than two square feet on interior surfaces or ten square feet on exterior surfaces. The Commission also adopts fee provisions intended to cover the cost of processing notifications. The Commission agrees with the division and includes such a requirement in the notification provisions of Regulation Number 19, Part A.
Fees for Certification of Persons
Regulation Number 19, Part A includes requirements for fees for certification of persons conducting lead abatement services, for any necessary monitoring of such persons to ensure compliance with Regulation Number 19, Part A, and for approval of persons or companies involved in the training or accreditation of workers pursuant to the Commission's authority at section 25-7-1103(1)(e), C.R.S. The Commission concludes that the fee provisions in this Regulation Number 19, Part A are adequate to fully fund the division's lead-based paint abatement program, if projected activity levels are accurate.
Definition of Child-Occupied Facilities
The rule incorporates the definition of the term "child-occupied facility" set out in section 25-7-1102(2)(a), C.R.S. Pursuant to the statutory definition, day-care centers, pre-schools and kindergarten classrooms constructed prior to 1978 are "child-occupied facilities" whether or not such facilities are visited by children for a total of at least six hours per visit. That is, the definitions set out in paragraphs (a) and (b) of subsection (2) of section 25-7-1102, C.R.S., are independent definitions. Day-care centers, pre-schools and kindergarten classrooms are child-occupied facilities whether or not they meet the definition set out in section 25-7-1102(2)(a), C.R.S.
The foregoing interpretation of section 25-7-1102(2), C.R.S., is based on the plain language of the statute. Furthermore, such a reading furthers the legislative intent evident in section 25-7-1103(1), C.R.S., to establish a program that implements the requirements of the federal program. The definition of "childoccupied facility" set out in section 25-7-1102(2)(a), C.R.S., differs from the federal definition expressed in 40 C.F.R. section 745.223. The difference between the two definitions concerns the length of time in which a child must visit a facility in order for the facility to be a "child-occupied facility." Pursuant to the federal definition, the critical time is defined as "combined weekly visits [of at least] six hours."
The definition in section 25-7-1102(2)(a), C.R.S., requires each visit to total at least six hours. Many preschools and kindergarten classrooms operate more than six hours per week, but less than six hours per day. Such classrooms are included in the federal definition, but would not be included in the definition set out in section 25-7-1102(2)(a), C.R.S. Reading sections 25-7-1102(2)(a) and (2)(b), C.R.S., as independent definitions captures most, if not all, of the facilities that are included in the federal definition but excluded from the definition in section 25-7-1102(2)(a), C.R.S. Such a reading furthers the legislative intent to implement the federal program.
Findings Pursuant to Section 25-7-110.8, C.R.S.
The regulation promulgated by the Commission is based on reasonably available, validated, reviewed and sound scientific methodologies demonstrating that exposure to lead is hazardous to children under the age of seven, and that lead-based paint was commonly in use in residences and child-occupied facilities prior to 1978. Interested parties did not provide the Commission with any other validated, reviewed, and sound scientific methodologies or information. The work practices in the regulation are designed to minimize airborne lead-contaminated dust during lead abatement projects. Therefore, such practices will result in a demonstrable reduction in air pollution associated with such projects. The remaining requirements of the regulation are administrative in nature and are not subject to the requirements of section 25-7-110.8(1)(b), C.R.S. No one proposed an alternative that would comply with the state statutory requirements in a more cost-effective manner.
Delay of Effective Date of Regulation
The Commission delayed the effective date of this regulation for persons conducting abatement activities in dwellings that they own and occupy in order to provide homeowners time to be able to comply with this regulation.
Commission Directions to Staff
The Commission intends that the Department of Public Health and Environment's lead program, in September 1998, notify the primary care giver of known children with elevated blood lead levels of this regulation. The Commission intends that the division review the application of this regulation to renovation activities, and that it complete this review by December 31, 1998. The Commission intends that the division will maintain current lists of certified lead abatement contractors, supervisors and certification courses, and will make these lists available to the public.
5 CCR 1001-23-C-I