5 Colo. Code Regs. § 1001-23-C-II
Background
This Statement of Basis, Specific Statutory Authority and Purpose comply with the requirements of the Colorado Administrative Procedure Act Sections 24-4-103(4) and (12.5), C.R.S. for new and revised regulations.
Basis
Regulation Number 19, Part A sets forth the Air Quality Control Commission's lead-based paint abatement program. Colorado's program is tailored after the Federal program. In January of 2001, the United States Environmental Protection Agency ("EPA") adopted revisions to the Federal program. EPA has given the state until June 7, 2003 to revise its regulation in order to make Colorado's program consistent with EPA's newly revised regulation. These revisions to Regulation Number 19, Part A are intended to comply with this mandate. Additionally, obsolete provisions have been deleted and certain minor language changes have been made to help clarify the regulation.
Finally, changes to the certification fee structure have been made to minimize the burden on the regulated community and encourage the type of growth necessary to serve the needs of the public while allowing the program to be fully funded from the collection of fees as required pursuant to § 25-7-1105, C.R.S.
Specific Statutory Authority
The specific statutory authority for these revisions is set forth in various sections of the Colorado Air Pollution Prevention and Control Act. Section, 25-7-105(1), C.R.S., gives the Air Quality Control Commission general authority to promulgate rules and regulations necessary for the proper implementation of the Air Pollution Prevention and Control Act ("Act"). Section 25-7-1103(1), C.R.S. gives the Commission specific authority to promulgate regulations necessary to establish and implement a state lead-based paint abatement program, including regulations regarding lead-based paint abatement performance standards and certification requirements. Finally, § 25-7-1105, C.R.S. allows the Commission to set fees that are sufficient to cover the costs of the program.
Purpose
The purpose of the revised regulation is to continue to protect children from lead exposure by establishing standards for lead-based paint abatement in "target housing" and "child occupied-facilities." The primary purpose of these revisions is to make the Colorado regulation consistent with the recently adopted Federal regulations governing lead-based paint abatement. To accomplish this, revisions have been made to Sections II. (Definitions), III. (Training and Certification Requirements), IV. (Inspections, Lead Hazard Screens, and Risk Assessments) and V. (Abatement Requirements) of Regulation Number 19, Part A. Changes have also been made to the table in Appendix A, governing the number of sample that must be taken in clearing projects in multi-family dwellings constructed prior to 1978. The new table is consistent with the revised HUD Guidelines for Lead-Based Paint, and therefore serves to make Regulation Number 19, Part A consistent with the federal program.
Action Taken
In addition to the changes necessary to make the State program consistent with Federal requirements, certain additional changes were made in order to clarify program requirements. For example, surplus language was removed from the provisions set forth in Section III.B.1.b., while the language in Section IV.B.1 was expanded to clarify that risk assessments are to be conducted in accordance with requirements of Section IV. (Inspections, Lead Hazard Screens, and Risk Assessments). These changes are not substantive and are not intended to change any program requirements.
A limited number of minor substantive changes were made to remove obsolete provisions, correct unintended consequences of the old regulatory language, and eliminate unnecessarily burdensome requirements. For example, the notification fee table set forth in Section V.A.5.c. sets forth the amount of fees that need to be paid based on the size of the project. Due to errors in the table, fees for larger projects could actually be less than fees for smaller projects. These errors have been corrected to create a graduated fee schedule. Section V.J.3. of the old regulation required that a supervisor or project designer prepare an abatement report, but failed to specify a time frame for completion of the report, thereby rendering enforcement of this requirement difficult. The revisions correct this oversight by providing a ninety-day time frame for report completion. Finally, Section V.C.2.c. has been changed to eliminate the requirement that ventilation systems be shut down during level I-1 projects. This requirement was deemed unnecessary given the nature of such projects and the fact that vents must be adequately sealed prior to abatement.
Several changes were made with respect to certification requirements. EPA's regulations require that all abatement, inspection and risk assessment firms be certified. For some reason, the prior version of Regulation Number 19, Part A failed to require certification for inspection or risk assessment firms. The revisions correct this oversight. The revisions also set certification fees for risk assessment and inspection firms, as well as modify the fees for abatement firms. The fee levels were based on an analysis of the amount of money that needs to be collected through fees in order to cover the costs of the program as required pursuant to § 25-7-1105, C.R.S. Given the continued growth of the program, and the addition of certification fees for inspection and risk assessment firms, the fee levels for abatement firms were able to be substantially reduced. These new fees will apply to firms seeking certification after the effective date of these revisions. Firms certified prior to the effective date shall not be entitled to a refund of any previously paid fees.
Findings Pursuant to § 25-7-110.8, C.R.S.
These revisions are based on reasonably available, validated and 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 used in residences and child-occupied facilities prior to 1978. Interested parties did not provide the Commission with any other validated, reviewed and scientifically sound methodologies or information. Based on the evidence presented on the record, the requirements of this revised regulation will reduce the amount of airborne lead-contaminated dust occurring during leadbased paint abatement projects, and therefore reduce the risks to human health and the environment thereby justifying the costs associated with this regulation. The revisions represent the regulatory alternative presented to the Commission, which best balances cost-effectiveness, flexibility to the regulated community and maximization of air quality benefits.
5 CCR 1001-23-C-II