5 Colo. Code Regs. § 1001-23-C-V

Current through Register Vol. 47, No. 24, December 25, 2024

Section 5 CCR 1001-23-C-V - Adopted: November 18, 2021 Revisions to Regulation Number 19, Parts A and B

This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act § 24-4-103(4), C.R.S., the Colorado Air Pollution Prevention and Control Act ("Act"), and the Air Quality Control Commission's ("Commission") Procedural Rules

Basis

Regulation Number 19 sets forth the Commission's lead control program which is tailored after the Federal program. Subchapter IV of the Federal Toxic Substances Control Act ("TSCA") addresses Lead Exposure Reduction. See 15 U.S.C. §§ 2681-2692. The U.S. Environmental Protection Agency ("EPA") promulgated regulations implementing requirements for Lead-Based Paint Poisoning in Certain Residential Structures. See 40 C.F.R. 745, Subparts A-Q. Colorado has delegated authority from EPA to administer and enforce the lead control program. However, to receive and maintain such delegated authority, Colorado's lead control program must be at least as protective of human health and the environment as the Federal program, contain certain requirements and provide adequate enforcement. See 40 C.F.R 745, Subpart Q. These revisions to Regulation 19 ensure that Colorado's program is at least as protective as the Federal program and contains certain federal requirements. Additionally, certain definitions have been added, minor reorganization and language changes have been made to clarify the regulation and reference materials have been updated. Lastly, language has been added to clarify requirements for abatement activities; and extend the requirements of Part B to child-occupied facilities.

Specific Statutory Authority

The Act, §§ 25-7-101, C.R.S., et seq., specifically § 25-7-105(1), gives the Commission general authority to promulgate rules and regulations, necessary for the proper implementation of the Act. Part 11 of the Act, §§ 25-7-1101, C.R.S., et seq., addresses lead-based paint abatement. Section 25-7-1103, C.R.S. directs the Commission to promulgate such rules as are necessary to implement Part 11 "under the requirements of federal 'Residential Lead-Based Paint Hazard Reduction Act of 1992', 15 U.S.C. secs. 2682, 2684, and 2686", which is part of TSCA.

Section 25-7-1103(1)(a), C.R.S. directs the Commission to promulgate rules that address procedures for a training and certification program for persons and companies involved in inspection, risk assessment, planning, project design, supervision, or conduct of the abatement of surfaces containing lead-based paint. Section 25-7-1103(1)(c), C.R.S. directs the Commission to promulgate rules regarding 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. Section 25-7-1103(1)(d), C.R.S. directs the Commission to promulgate rules that address procedures for notification to appropriate persons regarding lead-based paint projects in target housing or child-occupied facilities.

Purpose

The purpose of the revisions is to continue to protect children from lead exposure by establishing standards for lead-based paint abatement in "target housing" and "child occupied-facilities." A primary purpose of these revisions is to make the Colorado regulation consistent with updated Federal regulations as well as the Centers for Disease Control and Prevention (CDC) and the Colorado Board of Health (BOH) rule.

In addition to the changes necessary to make Colorado's program consistent with Federal requirements, certain changes were made in order to clarify program requirements.

The revisions also correct typographical, grammatical, and formatting errors found throughout the regulation, made global stylistic changes and reorganized the regulation to conform to current AQCC language requirements.

The following explanations provide further insight into the Commission's intention for certain revisions and, where appropriate, the technological or scientific rationale for the revision.

PART A. LEAD-BASED PAINT ACTIVITES

Incorporated Materials (Section II.B.)

Section 24-4-103(12.5), C.R.S. of the State Administrative Procedure Act allows the Commission to incorporate by reference codes, standards, guidelines or rules. The Commission included updates to reference methods incorporated in Regulation Number 19.

Terms (Section II.B.)

The Commission updated definitions that were unclear or incomplete. The Commission also added definitions for Certified Lead Abatement Firm, Certified Lead Evaluation Firm, Movable Objects, Records and Zero-bedroom dwelling as these are all commonly used terms that were not previously defined.

In Section II.B.30., the Commission changed the numerical standard and testing protocols in the definition of Elevated Blood Level to mirror changes in the CDC definition as well as the BOH Rule.

In Sections II.B.48.b and II.B.49. respectively, the Commission lowered the numerical standards in the definitions of Dust-lead hazard and Lead-contaminated dust to mirror changes in the federal regulation.

Section III. Training and Certification Requirements

Certification Based on Prior Training (Section III.B.4)

The Commission removed this section as it is no longer applicable or used.

Recertification (Section III.B.5)

The Commission clarified the process for when and how an individual can be re-certified.

Certification of Lead Abatement or Lead Evaluation Firms (Section III.B.6.)

The Commission also clarified that cities, counties and municipalities or other governmental entity employing appropriately trained and certified personnel, as required by this Regulation 19, will be exempt from paying the Certified Lead Evaluation Firm fee. The Commission's intent in exempting these entities is to allow for the governmental agencies to provide a service to their constituents where commercial services are less readily available.

Section IV. Inspections, Lead-Hazard Screens, and Risk Assessments

In Section IV.H.3.a., the Commission updated the residual lead levels to ensure it is equally protective as the Federal regulation.

Section V. Abatement Requirements

General Requirements

The Commission clarified that persons intending to conduct lead-based paint abatement must comply with the requirements of Regulation Number 19 if at least one window is being abated.

Occupant Protection Plan (Section V.A.6.)

The Commission clarified what must be included in an occupant protection plan ("OPP") for the Division to understand and evaluate the OPP and that it must be submitted to the Division along with the permit application.

Window Abatement (Section V.E.3.)

The Commission clarified the steps that must be taken when abating windows and added a third abatement option.

Coating and Sealing (Section V.I.1.b.)

The Commission moved the section regarding when coating must be applied to abated surfaces to more accurately reflect when coatings should be applied during the abatement sequence.

Final Clearance (Section V.J.1.g.)

The Commission updated the clearance levels to comply with changes to the Federal regulation.

Final Clearance (Section V.J.3.d.)

The Commission required that the name and address of the certified Lead Evaluation Firm is included in the abatement report.

Recordkeeping (Section V.L.)

The Commission clarified that records must be available to the Division upon request in order to demonstrate compliance.

Alternative Procedures and Variances (Section V.M.)

The Commission added a requirement that within forty-five (45) days of the receipt of a variance request the Division will notify the applicant in writing of its decision to either grant or deny the variance. Previously, there was no timeframe for the Division to respond to a variance request.

PART B. PRE-RENOVATION EDUCATION IN TARGET HOUSING AND CHILD-OCCUPIED FACILITIES

Section I. Scope and Applicability

Definition of Minor Repair and Maintenance (Section I.B.1.)

The Commission clarified what minor repair and maintenance means, which is an activity that is exempt from Regulation Number 19, Part B requirements.

Section III. Information and Distribution Requirements

Renovations in child-occupied facilities (Section III.D)

The Commission added a section regarding information distribution in child-occupied facilities in order to be as stringent as Federal requirements. See 40 C.F.R. § 745.84(c).

Findings Pursuant to § 25-7-110.5(5), C.R.S.

EPAs lead rules do not limit states from developing more stringent requirements for lead. However, in accordance with C.R.S. § 25-7-110.5(5)(b) and after considering all of the evidence in the record, the Commission determines:

(I) EPA established national standards for lead. EPA's national rules do not limit states from developing more stringent requirements for lead.

(II) The federal rules discussed in (I) are primarily performance-based and there is flexibility in those requirements.

(III) The TSCA does not address the issues that are of concern to Colorado and did not take into account concerns unique to Colorado.

(IV) The proposed revisions will improve the ability of the regulated community to comply in a more cost-effective way by clarifying confusing or potentially conflicting requirements and increasing certainty.

(V) Federal lead regulation has already been implemented in Colorado, however changes to this federal regulation requires updates to ensure Regulation 19 is equally as protective.

(VI) The proposed revisions will assist in establishing and maintaining a reasonable margin for accommodation of uncertainty and future growth.

(VII) The proposed revisions maintain reasonable equity in the requirements for various sources by evaluating the overall concerns and instituting the same requirements to reduce and/or eliminate lead-based paint poisoning in certain residential structures.

(VIII) Colorado residents and building owners may face increased costs from lead-based paint poisoning if the proposed revisions are not adopted.

(IX) The proposed revisions include minimal monitoring, recordkeeping, and procedural requirements that correlate to the federal requirements.

(X) Demonstrated technology is available to comply with the proposed revisions since the revisions will only clarify what has already been implemented or previously enforced by other agencies.

(XI) As set forth in the Economic Impact Analysis, the proposed revisions contribute to the prevention of harmful lead-based paint poisoning in a cost-effective manner.

(XII) Although alternative revisions may reduce lead exposure, the Commission determined that the Division's proposal was reasonable and cost-effective.

Findings Pursuant to § 25-7-110.8, C.R.S.

After considering all of the information in the record, the Commission makes the determination that:

(I) These revisions are based on reasonably available, validated and reviewed, and sound scientific methodologies demonstrating that exposure to lead creates a public health hazard. The Commission has considered all information submitted by interested parties.

(II) Evidence in the record supports the finding that the requirements of these revisions will reduce public exposure to lead-based paint poisoning and therefore reduce the risks to human health and the environment thereby justifying the costs associated with this regulation.

(III) Evidence in the record supports the finding that the revisions are the most cost-effective, which best balances cost-effectiveness, flexibility to the regulated community and maximization of air quality benefits

5 CCR 1001-23-C-V

44 CR 24, December 25, 2021, effective 1/14/2022