5 Colo. Code Regs. § 1001-10-B-VII
Background
The Asbestos Hazard Emergency Response Act of 1986 (AHERA) (15 U.S.C. 2646) was enacted to identify, manage and reduce exposure to asbestos in schools. The Asbestos School Hazard Abatement Reauthorization Act of 1990 (ASHARA) (Public Law 101-637) extended the training and certification requirements of AHERA to public and commercial buildings. Both acts require the Environmental Protection Agency (EPA) to promulgate minimum standards for the conduct of this training. In addition, states are mandated by both acts to either adopt EPA's Model Accreditation Plan (MAP), as presented in 40 CFR Part 763, or create programs that are at least as stringent as the EPA MAP. The state act contemplates adoption of the pertinent federal training requirements in 25-7-503 (1)(f)(I). Through this rulemaking, the Commission is incorporating by reference the Model Accreditation Plan into Air Quality Control Commission Regulation Number 8, Part B, Section II. to comply with federal and state laws.
Specific Authority
The specific authority for this regulation is found in the Colorado Air Quality Control Act. Section 25-7-503(1)(f)(I) provides authority to promulgate regulations regarding the training required to apply for state asbestos certification. This regulation will establish appropriate minimum training standards that will meet both state and federal mandates.
Purpose
Regulation 8 generally provides protection to Colorado citizens from exposure to asbestos, a Class A carcinogen, caused by improper abatements due to inadequate training of asbestos Workers, Supervisors, Inspectors, Management Planners and Project Designers. This rule will protect against potentially adverse economic impacts that might result against course providers in Colorado. This rule also helps protect against adverse health and environmental effects that may be caused by improperly trained asbestos Workers. In addition, this rule will meet the requirements of federal law (AHERA) and state law (Colorado Air Quality Control Act).
Basis
The Commission adopted revisions to Regulation Number 8, Part B, recommended by the Division to comply with state legislative directives, and to make other revisions reflecting changes in the federal program and appropriate changes to make the state program more effective and clear. A variety of recommended revisions were appropriate given that Regulation Number 8 has not been reopened and revised for over three years, apart from a recent limited revision regarding the EPA Model Accreditation Plan, and it was necessary to bring the regulation up to date.
The state asbestos program is not part of the State Implementation Plan (SIP), and the revisions approved by the Commission today will not be submitted to EPA as part of Colorado's SIP.
Specific Statutory Authority
Specific authority exists for the Commission's revisions in § 25-7-105(10), and § 25-7-501 et seq., C.R.S. In 1995 the Colorado legislature enacted HB 95-1016 amending Part 5, Asbestos Control, to require a variety of changes to the program. Section 25-7-503 provides the Commission with many separate specific authorities including, for example, specifying abatement practices and procedures, assessing notification fees, prescribing inspection and monitoring requirements, enforcing the maximum allowable asbestos level of 0.01 fibers per cubic centimeter, and requiring training and examinations. Other sections in Part 5 provide authority for specific requirements related, for example, to certification of personnel involved in asbestos abatement. Specific authority within Part 5 supports each of the revisions adopted by the Commission today.
Purpose
The Commission revised Regulation Number 8, Part B, regarding asbestos regulation to effectuate recent state legislative directives, to ensure the public is protected by minimizing the release of asbestos, to address changes to the federal National Emissions Standard for Hazardous Air Pollutants (NESHAP) Subpart M regarding asbestos, and to update the regulation for efficiency and clarity. The Commission adopts the substantive changes recommended by the Division and relies upon the record to support those changes. The Commission adopts the Division's proposals to eliminate unnecessary administrative text where it has been found in the regulation. Also, the Commission adopts various incorporations by reference recommended by the Division to bring Regulation Number 8, Part B, into conformity with the Colorado APA.
The Commission raises the minimum scope of asbestos abatement subject to the program as recommended by the Division to conform to the NESHAP for asbestos and as directed in § 25-7-503(1)(b), C.R.S. The Commission acknowledges certain statutory changes that are prescriptive from HB 95-1016, e.g., the effect of a plea of nolo contendere (§ 25-7-508(2)(a)(II)(C), C.R.S.), and prohibition from seeking recertification within one year after the Division revokes certification for a violation of the regulation (§ 25-7-508(6), C.R.S.). The Commission approves the Division devising application procedures to offer certificates for a one, three or five-year period at the option of the applicant (§ § 25-7-506(2), 25-7-507.5(2)(b), C.R.S.).
The Commission has considered the record and adopts the Division's proposals regarding the project manager discipline and project design requirements. The Commission believes the project manager duties are reasonable and appropriate, and determines at this time that imposing a college-level or higher education requirement would unnecessarily preclude otherwise qualified persons from performing these duties and that education at such a level was not required by the legislature (§ § 25-7-502 (7.5), 25-7-503(1)(b)(V)).
The Commission approves of the independence requirement for project managers from GACs, and the separate independence requirement for Inspectors from GACs as reasonable and required by statute (§ 25-7-503(1)(b)(V), C.R.S.). The Commission adopts the additional training and updated work practices appendix for the removal of sheet vinyl containing asbestos based on the record. The Commission believes this is generally consistent with EPA's NESHAP and with § § 25-7-501 and 25-7-503(1)(a), C.R.S. by reducing the risk of the release of asbestos fibers. Further, the Commission approves revisions to the definitions of asbestos-containing waste material facility, cutting, and grinding as consistent with EPA's NESHAP. The Commission approves the disclosure regarding certification of Workers conducting abatement in single-family residential dwellings as required by § 25-7-504(3), C.R.S., to ensure that those doing the work are properly certified and therefore properly trained. The Commission also adopts revisions to procedures for use of glove bags on abatement projects as being reasonable and efficient, and providing practical assistance to those conducting abatements while protecting the public from exposure to asbestos.
Based upon documents submitted and considered pursuant to § 25-7-110.5, C.R.S., the Commission makes the following findings:
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 8, Part B, sets forth the Air Quality Control Commission's asbestos control program. The statutory authority for this program is contained in the Colorado Air Pollution Prevention and Control Act ("Act"). In 2001, the legislature amended Part 5 of the Act dealing with asbestos control. These amendments, among other things, expanded the definition of Area of Public Access to include single-family residential dwellings, mandated certification for Air Monitoring Specialists and changed the definition of Friable Asbestos-Containing Material. As part of the legislative review of the Act, the Department of Regulatory Agencies ("DORA") examined potential problems with the Act and Regulation Number 8, Part B. Based on this review, DORA issued a report recommending a regulatory solution to perceived inequities in the Conflict of Interest provision set forth in Regulation Number 8, Part B, Section III.C.6.b.v. These revisions are needed to effect the statutory amendments and resolve the conflict of interest issue identified in the DORA report. In addition, the Regulation has been reorganized to make it more readable and easier to understand.
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 Act. Additionally, the various provisions set forth in Part 5 of the Act give the Commission specific authority to promulgate regulations governing asbestos abatement and control.
The provisions set forth in Sections 25-7-502 and 25-7-503, C.R.S. authorize the regulatory revisions governing asbestos control in single-family residential dwellings, changes to the conflict of interest regulations and modification of the regulatory definition of friable asbestos-containing material. Additional authority regarding single-family residential dwellings is set forth in Section 25-7-504, C.R.S. The revisions governing the certification of Air Monitoring Specialists are specifically authorized pursuant to Section 25-7-506.5, C.R.S.
Purpose
The purposes of these revisions are as follows:
In enacting Senate Bill 01-121, the Legislature made the following changes to Colorado's asbestos control program:
Prior to the adoption of Senate Bill 01-121, single-family residential dwellings were not included within the definition of area of public access. Because the majority of requirements set forth in the Act and the Regulation apply only to areas of public access, this exclusion left homeowners without recourse to important regulatory protections in connection with either the abatement of asbestos or renovations impacting asbestos in their homes. To rectify this situation, the Legislature modified the statutory definition of area of public access to include single-family residential dwellings, but provided that such a dwelling would not be considered an area of public access at the request of the homeowner residing in that dwelling. The Commission has adopted essentially identical modifications to the regulatory definition. Modifications to the regulatory provisions governing permitting and use of certified personnel have also been made to provide that while single-family residential dwellings could constitute areas of public access, neither permits nor the use of certified abatement Workers was required for abatement projects in such dwellings where the abatement was performed by an individual utilizing the dwelling as his or her primary residence. These provisions are consistent with the statutory mandate set forth in Senate Bill 01-121. Finally, the revisions create a new minimum scope of applicability with regard to single-family residential dwellings. Consistent with the authority set forth in Senate Bill 01-121 the Commission has set applicability levels for abatement projects in single-family residential dwellings at 50 linear feet on pipes or 32 square feet on other surfaces. These levels are lower than the levels currently set for projects in public and commercial buildings. The lower levels have been adopted in view of the fact that residential projects are typically much smaller; nonetheless, they are likely to result in prolonged exposure to higher risk populations, such as small children, the elderly or the infirm, than projects in public or commercial buildings.
The previous definition of the term "friable asbestos-containing material" referenced material containing more than one percent asbestos by weight. Authorized laboratory analytical methods, however, have, in addition to weight, utilized measurements by area or volume. Consistent with these methods, and the change to the statutory definition, the new regulatory definition clarifies that friable asbestos-containing material includes material containing more than one percent asbestos by area or volume, as well as weight.
Air Monitoring Specialists perform air sampling during and at the end of asbestos abatement projects as well as conduct final visual inspections to ensure that visible dust or debris is not left at the conclusion of the project. These activities are crucial to protecting the general public from asbestos exposure resulting from abatement projects. Despite the important role that they play in protecting the public, Air Monitoring Specialists were not previously required to obtain a state certification. This omission undermined the Division's ability to ensure that Air Monitoring Specialists were properly qualified, and precluded the Division from revoking certifications of unqualified individuals. In recognition of this, Senate Bill 01-121 required certification of Air Monitoring Specialists in accordance with Commission regulations setting forth experience, education and training requirements.
These revisions adopt requirements necessary to effectuate the certification of Air Monitoring Specialists. The new requirements allow currently practicing Air Monitoring Specialists to obtain certification upon successful completion of an Air Monitoring Specialist refresher course and a Division administered exam. Individuals who are not qualified under the present regulation, must have a high school diploma and pass a Division approved exam, as well as complete an Air Monitoring Specialist course and on-the-job experience consisting of at least 80 hours of air monitoring under the supervision of an existing AMS and at least two final visual clearances and at least two final air clearances under the observation of an existing AMS. While an existing AMS must sign off on a trainee's completion of the on-the-job experience, such a sign off shall not subject the AMS to any enforcement action or liability based on the trainee's subsequent performance of AMS activities.
In connection with its review of Regulation Number 8, Part B, the Department of Regulatory Agencies recommended revisions to the provision governing potential conflicts of interest with respect to inspections for asbestos. The new regulation requires that inspection and abatement firms be independent of each other but removes the prohibition against payments from abatement contractors to Inspectors. This change puts abatement and inspection firms on equal footing with respect to contracting with building owners, while giving owners the flexibility to contract with a single firm and allow that firm to sub-contract the abatement or inspection work with another firm.
The regulation has been reorganized to make it more readable and easier to understand. This reorganization has not substantively changed any requirements, but rather has put these requirements into a more accessible format.
Section I.A. of the Regulation governing materials incorporated by reference, has been expanded to include not only a statement that certain materials have been incorporated by reference, but also a list of those materials. This change makes the substantive provisions citing these materials easier to read and allows the reader to know up front what additional rules, beyond the regulation itself, apply to asbestos control in Colorado.
The definition section has been changed to include a list of relevant acronyms. This allows the reader to quickly identify what a given acronym stands for. Additionally, throughout the reorganized regulation, electronic links have been created so that individuals electronically reviewing a particular provision can immediately link to a given definition or acronym used in that provision.
Section II of the rule, governing certifications, has been substantially re-written to systematically explain the steps necessary to obtain certification in each of the certified disciplines. The current regulation organizes this information by the different types of requirements rather than by discipline. For example, testing requirements for all the disciplines are contained in one subsection, while training requirements are contained in another. The proposed reorganization organizes this material by discipline. As such, a person seeking to become certified as a Building Inspector can turn directly to the Building Inspector section, and not have to flip back and forth between several subsections. In addition, the current rule includes provisions governing when use of certified personnel is required. Because these provisions substantively govern asbestos control, and do not address how certification is to be obtained, they have been moved to a new subsection in Section III. governing abatement, renovation and demolition projects.
The substantive requirements in Section III. have been reorganized to follow, as nearly as possible, the chronological steps that need to be taken in dealing with asbestos-containing materials in buildings. Given the complexity of the regulation, perfect sequencing was not possible, since certain requirements may be applicable at various stages, but generally the proposed revisions logically group related requirements together and in an order that should make sense to a layperson trying to determine how to properly proceed with respect to asbestos control. In addition, statements have been added to clarify when the various requirements are applicable.
Because certain specialized rules apply to asbestos in schools and state buildings, separate sections containing these rules have been maintained in the regulation. A new Section VI. has been created governing standards associated with the manufacture and construction of asbestos materials. These requirements are currently placed in Section III governing project requirements. Because these rules are separate and distinct from the rules governing the removal and management of asbestos in buildings, the Division believes that they should be contained in a separate section. Finally, the section governing enforcement has been deleted from the proposed reorganization. This section unnecessarily duplicated the provisions of the Act, and its inclusion in the regulation was inconsistent with the other air regulations that rely on the Act for their enforcement mechanisms.
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 asbestos creates a public health hazard. 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 public exposure to harmful asbestos fibers 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.
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 8, Part B, sets forth the Air Quality Control Commission's asbestos control program. The statutory authority for this program is contained in the Colorado Air Pollution Prevention and Control Act ("Act"). The Legislative Legal Services contacted the Division to identify a concern with the single family residential dwelling opt-out provision. Specifically, Legislative Legal Services indicated that the regulatory language governing single-family residential opt outs conflicted with the overriding statutory language. While the intent of the old provision was to be consistent with the statutory directive, the old regulatory language failed to capture that intent. These revisions are needed to address the concerns of Legislative Legal Services. We have also fixed several typographical errors.
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 Act. Additionally, the various provisions set forth in Part 5 of the Act give the Commission specific authority to promulgate regulations governing asbestos abatement and control. The provisions set forth in Sections 25-7-502 and 25-7-503, C.R.S. authorize the regulatory revisions governing asbestos control in single-family residential dwellings, changes to the conflict of interest regulations and modification of the regulatory definition of friable asbestos-containing material. Additional authority regarding single-family residential dwellings is set forth in Section 25-7-504, C.R.S.
Purpose
These changes address issues identified by Legislative Legal Services with respect to the single- family residential dwelling opt-out provision and address typographical errors.
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 asbestos creates a public health hazard. 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 public exposure to harmful asbestos fibers 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.
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 8, Part B, sets forth the Air Quality Control Commission's asbestos control program. The statutory authority for this program is contained in the Colorado Air Pollution Prevention and Control Act ("Act"). The Legislative Legal Services contacted the Division to identify a concern with the single family residential dwelling opt-out provision. Specifically, Legislative Legal Services indicated that the regulatory language governing single-family residential opt-outs exceeded statutory language. While the intent of the current provision was thought to be consistent with the statutory directive, Legislative Legal Services disagreed. Therefore, this revision is needed to address the concern of Legislative Legal Services.
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 Act. Additionally, the various provisions set forth in Part 5 of the Act give the Commission specific authority to promulgate regulations governing asbestos abatement and control. The provision set forth in Section 25-7-502, C.R.S. authorizes the regulatory revisions governing asbestos control in single-family residential dwelling. Additional authority regarding single-family residential dwellings is set forth in Section 25-7-504, C.R.S.
Purpose
This change addresses the issue identified by Legislative Legal Services with respect to the single-family residential dwelling opt-out provision.
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 8, Part B, sets forth the Air Quality Control Commission's asbestos control program. The statutory authority for this program is contained in the Colorado Air Pollution Prevention and Control Act ("Act"). In 2006, the Legislature amended Part 5 of the Act dealing with asbestos control. These amendments, among other things: extended the sunset period to July 1, 2013; mandated exams for Air Monitoring Specialists; allowed the Division to establish certification renewal cycles, and the need to retest, administratively; changed an incorrect Code of Federal Regulations reference; and applied the regulation consistently across all building types. This included requiring an Air Monitoring Specialist to be independent of the General Abatement Contractor. It also included requiring a Project Manager on abatement projects of specified amounts of friable asbestos-containing materials in all building types. In addition, the Regulation has been changed to fix several administrative, typographical and referencing errors.
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 Act. Additionally, the various provisions set forth in Part 5 of the Act give the Commission specific authority to promulgate regulations governing asbestos abatement and control. The provisions set forth in Sections 25-7-505.5, C.R.S. authorize the regulatory revision to allow proficiency testing of Air Monitoring Specialists. Section 25-7-503, C.R.S., authorizes changes to the regulation for consistency and revises an incorrect Code of Federal Regulations reference. Additionally, authority to allow the Division to change certification periods is set forth in Sections 25-7-506, 25-7-506.5 and 25-7-507.5, C.R.S.
Purpose
The purposes of these revisions are as follows:
In enacting House Bill 06-1177, the Legislature made the following changes to Colorado's asbestos control program:
Air Monitoring Specialists perform air sampling during, and at the conclusion of, asbestos abatement projects. They also conduct final visual inspections to ensure that visible dust or debris is not left behind at the conclusion of the project. These activities are crucial to protecting the general public from asbestos exposure resulting from abatement projects. Several years ago, Legislative Legal Services determined that the Division did not have the specific statutory authority to administer tests to Air Monitoring Specialist applicants. This determination removed the Division's ability to ensure that Air Monitoring Specialists were properly trained and competent to perform their duties. In recognition of this, House Bill 06-1177 revised the statutory language to make it clearer that an examination was required in order for them to become certified.
Currently, it is a requirement that certified individuals take an annual refresher class and pass a state certification test for each discipline. Those who have renewed their certification for many years have often asked for relief from the annual testing requirement. It was recommended that the Division track pass/fail rates and other factors for a period of time to determine appropriate renewal cycles based on these rates.
In Section III.U.3.a. (Maximum Allowable Asbestos Level - Second Set by TEM) of the Regulation, a reference to a provision in the Code of Federal Regulations (CFR) is made that is no longer correct due to changes within that document. This provision must be changed in order to be consistent with the current CFR.
In connection with its review of Regulation Number 8, Part B, DORA recommended extending the provision governing potential conflicts of interest with respect to Air Monitoring Specialists and General Abatement Contractors. Additionally, the legislature adopted the use of Project Managers on qualifying abatement projects of friable asbestos containing material in all types of buildings. School buildings and single-family residential dwellings were not covered by this requirement. As abatement projects in these types of buildings may be just as complex as projects in public and commercial buildings, the legislature made the requirements apply to all buildings.
A number of administrative, typographical and referencing errors were corrected. These corrections have not changed any requirements, but were necessary to correct errors that were present.
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 asbestos creates a public health hazard.
Based on the evidence presented on the record, the requirements of this revised regulation will reduce public exposure to harmful asbestos fibers and therefore reduce the risks to human health and the environment thereby justifying any 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.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act Sections 24-4-103(4), C.R.S. for new and revised regulations.
Basis
The Air Quality Control Commission has adopted revisions to Regulation Number 8, Part B, Sections I.B.13., I.B.14., I.B.15., (all other definition numbers will be updated to reflect these 3 additions), II.B.1., II.B.2., II.C.2., II.C.4., II.C.6., II.D.2., II.D.3.b.(iv)., II.E.1., II.E.1.a., II.G.1., II.G.2., II.L., II.M., II.N., III.E.1.b., III.E.1.c., III.E.1.d., III.F., III.G.1.b., III.G.1.c., III.G.3.c. and III.G.6., in order to raise current fees for certification of individuals and asbestos abatement firms and fees for asbestos abatement and demolition notices and permits. New fees are proposed for registration of asbestos training providers, asbestos consulting firms and asbestos laboratories. The fees will be adjusted commencing in 2008. The increases are necessary to cover current and rising program costs.
Specific Statutory Authority
The specific statutory authority for these revisions is set forth in Section 25-7-510 C.R.S., which allows the Commission to adjust fees so that the revenue generated is sufficient to cover direct and indirect costs to implement the Asbestos program.
Purpose
The revisions to Regulation Number8, Part B, Sections I.B.13., I.B.14., I.B.15., (all other definition numbers will be updated to reflect these 3 additions), II.B.1., II.B.2., II.C.2., II.C.4., II.C.6., II.D.2., II.D.3.b.(iv)., II.E.1., II.E.1.a., II.G.1., II.G.2., II.L., II.M., II.N., III.E.1.b., III.E.1.c., III.E.1.d., III.F., III.G.1.b., III.G.1.c., III.G.3.c. and III.G.6. will cover existing and anticipated shortfalls.
Pursuant to § 24-4-103(6) C.R.S. and 5 Code Colo. Reg. § 1001-1, § V.C.6.a., the Air Quality Control Commission ("Commission") adopted revisions to Regulation 8, Part B effective on October 16, 2019.
Basis
Regulation Number 8, Part B, sets forth the Commission's asbestos control program. The statutory authority for this program is contained in the Colorado Air Pollution Prevention and Control Act ("Act"). On August 15, 2019, the Colorado Department of Public Health and Environment, Air Pollution Control Division ("Division") was made aware of a Colorado Court of Appeals case, decided on August 1, 2019 (See Ferraro v. Frias Drywall, LLC, 2019COA123). The Division was not a party in the District Court, nor at the Court of Appeals. In Ferraro, the Court of Appeals held that there is no duty to inspect single-family residential dwellings for suspect asbestos containing materials prior to renovation or demolition. In part, the Court of Appeals based its decision on an inconsistency in the definition of "facility" in Regulation 8, Part B. Therefore, the Division requested an emergency rulemaking to clarify the requirements for single-family residential dwellings, ensure compliance with state law and preserve public health, safety and welfare.
Specific Statutory Authority
The Colorado Administrative Procedure Act, § 24-4-103(6) and 5 Code Colo. Reg. § 1001-1, § V.C.6.a. gives the Commission authority to adopt a temporary or emergency rule. Furthermore, the specific statutory authority for these revisions is set forth in various sections of the Act. Section 25-7-105(1), C.R.S., gives the Commission general authority to promulgate rules and regulations, necessary for the proper implementation of the Act. Additionally, the various provisions set forth in Part 5 of the Act give the Commission specific authority to promulgate regulations regarding asbestos. The provisions set forth in §§ 25-7-502 and 25-7-503, C.R.S. authorize the regulatory revisions governing asbestos control in single-family residential dwellings. Section 25-7-502(1) explicitly states that single-family residential dwellings must be considered an area of public access unless the homeowner opts out. Additional authority regarding single-family residential dwellings is set forth in § 25-7-504, C.R.S.
Purpose
These changes address the immediate need to clarify the requirements for single-family residential dwellings, which enables the Division to comply with state law and ensure single-family residential homeowners are protected from harmful asbestos spills and improper asbestos abatement.
Findings Pursuant to § 24-4-103(6), C.R.S.
The Commission is aware that if it does not take emergency action to adopt these revisions single-family residential homeowners may be exposed to harmful asbestos due to the regulatory uncertainty caused by Ferraro. The Commission finds the immediate adoption of these revisions is imperatively necessary to comply with state law, to preserve the public health, safety and welfare, and that compliance with the normal rulemaking requirements of § 24-4-103 C.R.S., resulting in further delay, would be contrary to the public interest.
Findings Pursuant to § 25-7-110.5(5), C.R.S.
EPA's National Emission Standards for Hazardous Air Pollutants ("NESHAP") rules do not limit states from developing more stringent requirements for asbestos. 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:
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:
These revisions are to be effective October 16, 2019, and continue in effect until the effective date of permanent revisions, or for 120 days, whichever comes first.
This Statement of Basis, Specific Statutory Authority and Purpose complies with the requirements of the Colorado Administrative Procedure Act Section 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 8, Part B, sets forth the Commission's asbestos control program. The statutory authority for this program is contained in the Act. On August 15, 2019, the Colorado Department of Public Health and Environment, Air Pollution Control Division ("Division") was made aware of a Colorado Court of Appeals case, decided on August 1, 2019 (SeeFerraro v. Frias Drywall, LLC, 451 P.3d 1255 (Colo. App. 2019)). The Division was not a party in the District Court, nor at the Court of Appeals. In Ferraro, the Court of Appeals held there is no duty to inspect single-family residential dwellings for suspect asbestos containing materials prior to renovation or demolition. In part, the Court of Appeals based its decision on an inconsistency in the definition of "facility" in Regulation Number 8, Part B. The Ferraro decision caused regulatory uncertainty, violation of state law and risk to the public health, safety and welfare.
Specific Statutory Authority
Specific statutory authority for these revisions is set forth in various sections of the Act. Section 25-7-105(1), C.R.S., gives the Commission general authority to promulgate rules and regulations, necessary for the proper implementation of the Act. Additionally, the various provisions set forth in Part 5 of the Act give the Commission specific authority to promulgate regulations regarding asbestos. The provisions set forth in §§ 25-7-502 and 25-7-503, C.R.S. authorize the regulatory revisions governing asbestos control in areas of public access, which includes single-family residential dwellings. Section 25-7-502(1), C.R.S. explicitly states that single-family residential dwellings must be considered an area of public access unless the homeowner opts out. Additional authority regarding single-family residential dwellings is set forth in § 25-7-504, C.R.S.
Purpose
The adoption of these revisions make the temporary revisions, adopted on October 16, 2019, permanent. These changes address the need to clarify the inspection requirements for single-family residential dwellings, which restores the status quo, reestablishes regulatory certainty and enables the Division to comply with state law and ensure Colorado citizens are protected from harmful asbestos spills and improper asbestos abatement.
Findings Pursuant to § 25-7-110.5(5), C.R.S.
EPA's National Emission Standards for Hazardous Air Pollutants ("NESHAP") rules do not limit states from developing more stringent requirements for asbestos. However, in accordance with C.R.S. § 25-7-110.5(5)(b), C.R.S. and after considering all of the evidence in the record, the Commission determines:
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:
Pursuant to § 24-4-103(6), C.R.S. and 5 Code Colo. Reg. § 1001-1, § V.C.6.a., the Air Quality Control Commission ("Commission") adopted revisions to Regulation 8, Part B effective on January 16, 2020.
Basis
Regulation Number 8, Part B, sets forth the Commission's asbestos control program. The statutory authority for this program is contained in the Colorado Air Pollution Prevention and Control Act ("Act"). On August 15, 2019, the Colorado Department of Public Health and Environment, Air Pollution Control Division ("Division") was made aware of a Colorado Court of Appeals case, decided on August 1, 2019 (SeeFerraro v. Frias Drywall, LLC, 451 P.3d 1255 (Colo. App. 2019)). The Division was not a party in the District Court, nor at the Court of Appeals. In Ferraro, the Court of Appeals held that there is no duty to inspect single-family residential dwellings for suspect asbestos containing materials prior to renovation or demolition. In part, the Court of Appeals based its decision on an inconsistency in the definition of "facility" in Regulation 8, Part B. On October 16, 2019, the Commission conducted an emergency rulemaking at which it adopted temporary revisions ("Temporary Revisions") to clarify the requirements for single-family residential dwellings, ensure compliance with state law and preserve public health, safety and welfare. On January 16, 2020, the Commission conducted a normal rulemaking in compliance with §§ 24-4-103(3) and (4), C.R.S., at which it adopted the identical revisions on a permanent basis ("Permanent Revisions").
Specific Statutory Authority
The Colorado Administrative Procedure Act, § 24-4-103(6), C.R.S. and 5 Code Colo. Reg. § 1001-1, § V.C.6.a. gives the Commission authority to adopt a temporary or emergency rule. Furthermore, the specific statutory authority for these revisions is set forth in various sections of the Act. Section 25-7-105(1), C.R.S., gives the Commission general authority to promulgate rules and regulations, necessary for the proper implementation of the Act. Additionally, the various provisions set forth in Part 5 of the Act give the Commission specific authority to promulgate regulations regarding asbestos. The provisions set forth in §§ 25-7-502 and 25-7-503, C.R.S. authorize the regulatory revisions governing asbestos control in single-family residential dwellings. Section 25-7-502(1), C.R.S. explicitly states that single-family residential dwellings must be considered an area of public access unless the homeowner opts out. Additional authority regarding single-family residential dwellings is set forth in § 25-7-504, C.R.S.
Purpose
The Temporary Revisions will expire before the Permanent Revisions become effective. Therefore, the adoption of these revisions, which are identical to the Temporary Revisions and Permanent Revisions, on an emergency basis will address the immediate need to bridge the gap between when the Temporary Revisions expire and the Permanent Revisions become effective. The revisions restore the status quo by clarifying the requirements for single-family residential dwellings, which enables the Division to comply with state law and ensure single-family residential homeowners are protected from harmful asbestos spills and improper asbestos abatement.
Findings Pursuant to § 24-4-103(6), C.R.S.
The Commission is aware that if it does not take emergency action to adopt these revisions, a regulatory gap will occur and single-family residential homeowners may be exposed to harmful asbestos due to the regulatory uncertainty caused by Ferraro. The Commission finds the immediate adoption of these revisions is imperatively necessary to comply with state law, to preserve the public health, safety and welfare, and that compliance with the normal rulemaking requirements of § 24-4-103 C.R.S., resulting in a regulatory gap, would be contrary to the public interest.
Findings Pursuant to § 25-7-110.5(5), C.R.S.
EPA's National Emission Standards for Hazardous Air Pollutants ("NESHAP") rules do not limit states from developing more stringent requirements for asbestos. However, in accordance with § 25-7-110.5(5)(b), C.R.S., and after considering all of the evidence in the record, the Commission determines:
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:
These revisions are to be effective January 16, 2020, and continue in effect until the effective date of the Permanent Revisions or for 120 days, whichever comes first.
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 8, Part B, sets forth the Commission's asbestos control program. The main statutory authority for this program is contained in Part 5 of the Act. Regulation Number 8, Part B had not undergone substantive revisions since 2003. Therefore, it was determined certain substantive changes were necessary to address outstanding issues. The rule revisions updated incorporations by reference; addressed inaccurate and missing definitions; clarified and updated certification requirements; and clarified and updated requirements for abatement, renovation and demolition projects.
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. Section 25-7-503, C.R.S. directs the Commission to promulgate such rules and regulations as are necessary to implement the provisions of Part 5 regarding areas of public access and as required by the federal Clean Air Act, 42 U.S.C., sec. 7412et seq. (regarding Hazardous Air Pollutants).
The implementing regulations for hazardous air pollutants are the National Emission Standards for Hazardous Air Pollutants ("NESHAP"). The asbestos NESHAP is found at 40 CFR Part 61, Subpart M. Section 25-7-501(1), C.R.S. states it is the intent of the general assembly that the Commission may adopt regulations to permit the enforcement of the NESHAP. Section 25-7-503(1)(a)(I), C.R.S. directs the Commission to promulgate performance standards and practices for asbestos abatement which are not more stringent than occupational asbestos exposure as covered under the federal Occupational Safety and Health Administration (OSHA). Section 25-7-503(1)(a)(II), C.R.S. directs the Commission to promulgate rules regarding the maximum allowable asbestos level. Section 25-7-503(1)(a)(IV), C.R.S. directs the Commission to promulgate requirements for air pollution permits, which includes asbestos abatement projects. Section 25-7-503(1)(a)(IX), C.R.S. directs the Commission to promulgate assessment procedures which determine the need for response actions for friable asbestos-containing materials. Section 25-7-503(1)(b)(I) directs the Commission to promulgate rules determining the minimum scope (i.e. trigger levels) of asbestos abatement to which Part 5 applies.
Section 25-7-503(1)(b)(II), C.R.S. directs the Commission to promulgate rules regarding notification requirements, consistent with the Clean Air Act, to demolish, renovate, or perform asbestos abatement in any building, structure, facility or installation, or any portion thereof, which contains asbestos (unless below trigger levels or otherwise exempt). Section 25-7-502(1)(a), C.R.S. dictates that single-family residential dwellings are included in the same category as buildings, facilities, installations or any portion thereof. Notice provisions in the NESHAP involve regulated asbestos-containing material (RACM), which includes both friable and nonfriable asbestos containing materials. Section 25-7-503(1)(b)(III), C.R.S. directs the Commission to promulgate rules regarding procedures for the inspection and monitoring of sites where demolition, renovation, or the performance of asbestos abatement is taking place. Section 25-7-503(1)(b)(V) directs the Commission to promulgate requirements to prevent any real or potential conflict of interest between the identification of asbestos-containing materials and the abatement of such materials. Section 25-7-503(1)(d), C.R.S. gives the Commission power to authorize the Air Pollution Control Division (Division) to establish procedures regarding applications, examinations, and certifications required under Part 5. Section 25-7-503(1)(e), C.R.S. directs the Commission to promulgate rules setting minimum standards for sampling the asbestos in the air and standards for persons engaging in such sampling.
Additionally, other various provisions set forth in Part 5 of the Act dictate Colorado-specific requirements for asbestos. Section 25-7-501, C.R.S. specifically provides that it is in the interest of the general public to control the exposure of the general public to friable asbestos and it is the intent of the general assembly that the practice of asbestos abatement be regulated in areas which the general public has access to ensure the abatement is performed in a manner that will minimize the risk of release of asbestos. The provisions set forth in §§ 25-7-502 and 25-7-503, C.R.S. authorize the regulatory revisions governing asbestos control in areas of public access, which includes single-family residential dwellings. Section 25-7-502(1) C.R.S. explicitly states that single-family residential dwellings must be considered an area of public access unless the homeowner opts out. Authority regarding certifications is set forth in §§ 25-7-504, 505, 505.5, 506, 506.5, 507, and 507.5, C.R.S. Authority regarding denial of certification is set forth in § 25-7-508, C.R.S. Section 25-7-505(1), C.R.S. requires that to be certified as a General Abatement Contractor, an applicant must submit an application to the Division, in the form specified by the Division, and pay a fee set by the Commission. Sections 25-7-506 and 25-7-506.5 C.R.S. requires that to be certified as a Supervisor or Air Monitoring Specialists, applicants must submit an application to the Division, in the form specified by the Division, and pay a fee set by the Commission.
The Asbestos Hazard Emergency Response Act of 1986 (AHERA) (15 U.S.C. 2646) was enacted to identify, manage and reduce exposure to asbestos in schools. Subsequently, in 1990, Congress enacted the Asbestos School Hazard Abatement Reauthorization Act (ASHARA) (Public Law 101-637) which amended AHERA to extend the training and accreditation requirements to persons performing such work in public and commercial buildings. States are mandated by AHERA to adopt an accreditation plan no less stringent than the Environmental Protection Agency's (EPA) Model Accreditation Plan (MAP). See15 U.S.C. 2646(b)(2). Sections 25-7-503(1)(f)(I) and 25-7-507.5(5)(c)(1), C.R.S. of the Act give the Commission the power and duty to adopt these federal training and certification requirements and promulgate rules governing refresher training programs.
Purpose
The purpose of these changes are as follows:
The revisions will meet the requirements of federal law (NESHAP and AHERA) and state law (the Act).
The revisions also correct typographical, grammatical, and formatting errors found throughout the entire regulation.
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.
Incorporation by Reference (Section I.A.)
Section 24-4-103(12.5), C.R.S. of the State Administrative Procedure Act allows the Commission to incorporate by reference federal regulations. The criteria of § 24-4-103 (12.5), C.R.S. are met by including specific information and making the regulations available because repeating the full text of each of the federal regulations incorporated would be unduly cumbersome and inexpedient. To fully comply with these criteria, the Commission included updated reference dates to rules and reference methods incorporated in Regulation Number 8, Part B. The Commission removed references considered guidance or are no longer relevant. The Commission also incorporated by reference ASTM International Method D5755-09 (Reapproved April 2014), "Standard Test Method for Microvacuum Sampling and Indirect Analysis of Dust Transmission Electron Microscopy for Asbestos Structure Number Surface Loading" and ASTM International Method D6480-19 (January 2019), "Standard Test Method for Wipe Sampling of Surfaces, Indirect Preparation, and Analysis for Asbestos Structure Number Surface Loading by Transmission Electron Microscopy". It is the Commission's intent that, as staff to the Commission, the Division will maintain hard copies of these standards for public inspection as required by the Colorado Administrative Procedure Act.
Definitions (Section I.B.)
The Commission updated definitions that were unclear or incomplete. The Commission added definitions for Asbestos-contaminated, Business day, Conflict of Interest, Full containment, General Abatement Contractor, in poor condition, Installation, Inspection, Leak-tight, Major asbestos spill, Makeup air intake, Minor asbestos spill, Project, Quantify, and Secondary containment as these are all commonly used terms in the regulation and industry that were not previously defined. The Commission deleted the definition for Asbestos Abatement Contractor as it is not used in the Regulation and the definition for Friable Asbestos Containing Materials as the terms "friable" and "asbestos containing material" are already defined. In updating the definitions for "friable" and "nonfriable", it is the Commission's intent to clarify that nonfriable material will become friable when reduced to a state that is likely to emit asbestos fibers. An example of this may include when floor tile is removed in a manner which reduces the tile to smaller pieces and generates particulates. Another example is when asbestos containing cement materials (commonly used as roofing, siding or pipe) are not removed or handled properly. When these materials are not removed intact (e.g. breaking it up with a hammer or cutting with a saw), the matrix will crumble which will allow the asbestos fibers to be emitted. Fire or extreme weathering are other examples when nonfriable materials may be reduced to a state that is likely to emit fibers, where the fire or weather has burned/stripped away the matrix that binds the asbestos fibers.
In defining "project", it is the Commission's intent to clarify that activities may not be broken up or separated to intentionally remain below trigger levels so as not to be subject to the requirements of Regulation 8, Part B.
Acronyms (Section I.C)
The Commission updated contact information for companies/agencies listed in this section.
General Requirements (Section II.A.)
The Commission revised the certifications requirements to prohibit renewal of a certification or registration where the individual has failed to pay in full a Division-assessed penalty for violating any provision of Regulation 8, Part B or failing to comply with any written order (e.g. compliance determination letter, cease and desist order, etc.) of the Division issued pursuant to part 5 of the Act.
Section II.A.3.
This section waived the application fee for any person who was certified to work solely on asbestos abatement in non-public access areas. Due to the fact the Division has not received a request since 2008 to work solely on asbestos abatement projects in non-public access areas, the confusing nature of this provision and certification, and the fact the Act speaks mostly to areas of Public Access, the Commission removed this section.
General Abatement Contractor Certificates (Section II.B.)
The Commission made both fees the same for out-of-state and in-state General Abatement Contractors.
Worker, Supervisor, Building Inspector, Management Planner, Project Designer and Air Monitoring Specialists Certificates (Sections II.C. and II.D.)
The Commission updated examination requirements to conform with statutory requirements. The Commission implemented more on-the-job training for Air Monitoring Specialists (AMS) to address deficiencies in the field. Grandfathered AMS requirements were removed since the deadline (June 30, 2003) to apply for the grandfathered certification has passed.
Training Provider Application Procedures, Instructor Qualifications, Training Course Notifications, Training Course Audits and Reciprocity (Sections II.E., II.F., II.G., II.H. and II.I.)
Which type of qualifications are required for the different types of instructor were often misunderstood. Therefore, the Commission added additional clarification for the qualifications and requirements of each type of instructor. Furthermore, the processes for becoming an instructor and obtaining reciprocity were also clarified. The federal MAP requires that a training instructor's approval must be based upon a review of the instructor's academic credentials and/or field experience in asbestos abatement. See 40 C.F.R. Pt. 263, Subpt. E, App. C, § I.B.
Asbestos Consulting Firm Registration and Asbestos Laboratory Registration (Sections II.L. and II.M.)
For clarity, the Commission added two new subtitles. The Commission also clarified that cities, counties and municipalities or other governmental entity employing appropriately trained and certified personnel, as required by this Regulation 8, Part B, will be exempt from paying the asbestos consulting firm registration 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.
Inspection (Section III.A.)
Previously, Section III.A. required inspections, sampling and assessments to be performed as required by Section IV, which addresses schools. This caused confusion within the regulated community as to inspection requirements for non-school facilities. Therefore, the Commission copied the requirements for conducting an asbestos inspection, sampling, analysis and assessment of asbestos-containing materials (ACM) from Sections IV.C. through IV.F. into Section III.A. to clarify that the process and procedures developed for asbestos inspections in schools is the same process and procedures required for all other types of facilities in areas of public access. Since Section IV. deals solely with the management of ACBM in place, for Section III. the Commission edited and added some requirements to make them applicable to non-school facilities and ensure that any resulting abatement is performed in a manner which will minimize the risk of release of asbestos.
Sections III.A.3 and III.A.4.
The Commission added language requiring that an inspector quantify suspect ACM. In requiring that the inspector "quantify" suspect ACM, it is the Commission's intent to avoid conflicts of interest between the identification of ACM and the abatement of ACM. Section 25-7-503(1)(b)(V), C.R.S. specifically requires the Commission to promulgate such rules. If the same person abating the asbestos is also determining how much asbestos there is, there is a potential conflict of interest. The Commission intends that an inspector quantify, to the extent practicable, the amount of ACM in each homogeneous area. In some instances, it is recognized that ACM that is inaccessible without subjecting the building to extensive damage may not be quantifiable. This material must be noted with anticipated locations described as completely as possible so that inadvertent disturbance of the material does not occur.
The Commission also set-out minimum standards for what must be included in an inspection report and that the report must be present on site when renovation or demolition activities affecting inspected materials are being conducted. In requiring that an inspector provide a blueprint or diagram of the ACM, it is the Commission's intent to avoid the loss of factual information. Verbal and/or written descriptions may not provide the same certainty or permanence as visual identification due to the fact room names or numbers can frequently change due to changes in ownership or use of the building. For buildings that do not have blueprints or diagrams, or for smaller or less complicated buildings, it is the Commission's intent that a hand drawn sketch by the inspector will suffice for this requirement.
For buildings where security prohibits the inclusion of blueprints, diagrams or any hand drawn sketches, it is the Commission's intent that an accurate and detailed verbal description will suffice. Section 25-7-503(1)(a)(IX), C.R.S. gives the Commission both the power and duty to promulgate rules regarding assessment procedures which determine the need for response actions for friable asbestos-containing materials.
The Commission determined the previous procedures for determining the need for response actions for friable asbestos-containing materials, which may include nonfriable materials, were confusing. Furthermore, the requirements for what should be included in an inspection report were inadequate. Therefore, the Commission added and clarified procedures to ensure the inspection, subsequent analysis and report are adequate in order to properly determine the necessary response actions.
Section III.A.5.
The Commission added language to clarify when abatement is required. This includes clarifying that even if removal of asbestos is in an area of non-public access, if it will release asbestos into an area of public access (i.e. impact an area of public access), it will need to be abated in accordance with this Regulation 8, Part B. Examples of this include, but are not limited to, when asbestos fibers may travel into an area of public access through communal HVAC systems, through communal access, or if asbestos-containing materials not properly packaged will be transported through and/or stored in areas of public access.
Section III.A.6.
The Commission added language to clarify when abatement before demolition is required.
Use of Certified and Required Personnel (Section III.B.)
The Commission made minor changes to clarify existing requirements and remove obsolete language.
Project Design (Section III.C.)
Sections III.C.3, III.C.4. and III.C.5.
Prior to the start of any asbestos abatement project in an area of public access where the amount of asbestos-containing material exceeds a certain threshold, a written project design must be developed by a Project Designer. The Commission revised the requirements regarding the written project design to require the Project Designer to visit the site prior to creating the project design and added clarity as to what the project design must include. The Commission also added a requirement to ensure the abatement project is conducted in accordance with the project design.
Project Management (Section III.D.)
To ensure adequate notice and compliance, the Commission required the Project Manager to notify the Division of any deviations from the Project Manager's duties if the deviation(s) is/are not corrected within 24 hours.
Notifications (Section III.E.)
Sections III.E.1. III.E.2. and III.E.3.
The Commission simplified this section by separating out notification requirements for single-family residential dwellings, which includes the ability to opt out as allowed by § 25-7-502(1)(c), C.R.S. The Commission clarified that the opt out may only be used by a homeowner regarding his or her primary residence, which is the home the homeowner currently resides in. This means if, at the time of abatement, the homeowner knows the single-family residential dwelling will be accessed on a regular basis by someone other than the homeowner and their family, the opt out is not available. The purpose of this is to ensure only the people who opt out are subjected to the risks that may be associated with not following all proper abatement procedures and requirements.
Alternative Procedures and Variances (Section III.F.)
The Commission reduced the amount of time from 60 days to 45 days in which the Division must notify an applicant of its decision to either grant or deny a variance. The Commission also removed an exception for alternative procedures previously evaluated by the Division due to confusion around what constitutes a procedure that has been previously evaluated.
Permits (Section III.G.)
Section III.G.2.
The Commission added additional language and changed some language to clarify how an applicant should notify the Division regarding changes to a permit and what constitutes a change.
Section III.G.3.
The Commission added additional language and changed some language to clarify how permits for a multiple-phase project must be obtained. The Division has agreed to reduce the paperwork burden associated with the multi-phase project application process by eliminating the repetitive use of some forms such as, but not limited to, requiring a complete application form to be submitted for every phase.
Abatement Sequence (Section III.H.)
Section III.H.2.
The Commission added an additional step to clarify when coating may be applied and that such coating must be dry before final clearance air sampling may begin.
Section III.H.3.
The Commission added additional language to clarify that the handling of waste during either post-abatement or during active abatement must be done in accordance with Section III.R. (Waste Handling).
Air Cleaning and Negative Pressure Requirements (Section III.J.)
Section III.J.1.
The Commission made changes to ensure the use of the term negative air machines (NAMs) is consistent in the regulation and to clarify what constitutes proper maintenance of NAMs.
Section III.J.3.
The Commission added language requiring that manometers have an audible alarm to signal when pressure drops too low and that the alarm function must be kept in the audible mode during active abatement. This is to ensure all personnel onsite will be alerted if the pressure drops too low so immediate adjustments can be made.
Section III.J.4.
The Commission added language clarifying the purpose of smoke tubes is to also verify air movement within the work area.
Decontamination Unit (Section III.K)
Section III.K.1.
The Commission clarified that decontamination units should be used by all personnel and that the flaps must be self-closing. The purpose of this is to ensure the flaps will close automatically should negative pressure be lost. Where there is negative air pressure, the flaps are naturally pulled in toward the work area. If pressure is lost and the flaps are not designed correctly, the flaps may remain open and exhaust asbestos fibers.
Containment Components (Section III.N.)
Section III.N.1.
The Commission added language to clarify that polyethylene flooring must be installed unless asbestos containing flooring material is the only thing being removed. The purpose of the polyethylene flooring is to control water being used during abatement and prevent visible emissions.
Section III.N.3.
The Commission added language to address size requirements and self-closing flaps for the waste load-out area. The purpose of this is to clarify the waste load-out area must be large enough to accommodate large and/or oddly shaped debris, all while ensuring the flaps do not open and exhaust asbestos fibers.
Abatement Methods (Section III.O.)
Section III.O.1.
The Commission added language to address alternative methods for removing asbestos containing materials, with the use of additional engineering controls and without having to obtain a variance. The use of newer, aggressive mechanical methods significantly reduces the size of asbestos fibers during removal, which necessitates the need for additional engineering controls to ensure asbestos fibers and/or asbestos contaminated water are not emitted/released beyond the work area. Examples of additional controls that may be needed include an operator changing filters more often, use of more water or requiring additional air exchanges to clean the air of heavy loads of particulate.
Sections III.O.2 and III.O.3.
The Commission changed the language so a General Abatement Contractor is no longer required to erect a containment barrier for encapsulation or enclosure if the asbestos containing material is in good condition and the process will not cause visible emissions. The Commission clarified that the abatement area must still be cleared as required by Section III.P (Clearing Abatement Projects).
Clearing Abatement Projects (Section III.P.)
Section III.P.1.
The Commission added additional language requiring Air Monitoring Specialists (AMS) who conduct clearance sampling at abatement projects to provide written notification of the clearance to the General Abatement Contractor (GAC). The purpose of this is to ensure there is no miscommunication between the AMS and GAC, and that the GAC has written documentation that the site has been cleared. This written documentation may be provided to the building owner. This is a final step before releasing the abated area back to the general public, so proper communication is crucial.
Section III.P.3.
The Commission added language requiring a minimum amount of air to be collected during clearance air monitoring to be consistent with requirements of the analytical method. The Commission also added a requirement that analysts who analyze phase contrast microscopy samples must participate in their company's Proficiency Analytical Testing Program to ensure accuracy and consistency.
Tear-Down (Section III.Q.)
The Commission added language clarifying that vacuuming must be performed during the tear-down portion of the abatement project if minimal dust or debris is discovered.
Waste Handling (Section III.R.)
The Commission added language to clarify that all asbestos-containing waste materials must be removed from the abatement site at the conclusion of the project. If the volume of waste falls below a certain threshold and the property where the waste is stored is owned or operated by the General Abatement Contractor or building owner, the waste may be stored for a time not to exceed six months. This is to ensure the waste is disposed of properly while allowing flexibility for the regulated community.
Section III.R.2.
The Commission added language to prohibit the use of asbestos containing wastewater for wetting the abatement project. The purpose of this is to avoid the release of asbestos fibers that would occur when the water is applied.
Section III.R.3.
The Commission added language regarding the proper procedures regarding the disposal of asbestos waste.
Abatement of Special Materials (Section III.S.)
Section III.S.1.
The Commission added language regarding the friability of sheet vinyl flooring and clarifying that sheet vinyl flooring with a fibrous asbestos containing backing must be removed as a friable material unless removed as required by Section III.S.1.d. This is due to the fact the fibrous asbestos containing backing is extremely friable and when disturbed readily releases fibers.
Section III.S.2.
The Commission added language requiring that asbestos cement products over the trigger levels must be removed prior to demolition. Asbestos cement products readily emit asbestos fibers when disturbed. Therefore, the addition of this language was to ensure asbestos fibers from asbestos cement products are not released during demolition. This requirement also mirrors EPA guidance on asbestos cement products.
Asbestos Spill Response (Section III.T.)
Section III.T.1.
The Commission added this section as the first step for spill response. If it is already known or assumed that the disturbed materials contain asbestos and are greater than the trigger levels, a building owner, operator or contractor can simply proceed as if it is a major spill. If the asbestos content is unknown, the owner, operator or contractor must contact a certified asbestos building inspector to collect samples, and submit for analysis, to determine the type of spill. The inspector must prepare a report which identifies if the spill is major (i.e. above trigger levels and is asbestos containing material, which is material that contains more than 1% asbestos) or minor. Since the inspector is trained and certified and the most knowledgeable professional involved regarding the dangers of asbestos and what is required to address a spill, the Commission required the inspector to notify the Division and building owner of a major spill. Previously, the inspector was only required to notify the building owner. The building owner or, if they hired a contractor, the contractor was then required to notify the Division. The building owner would often fail to report to the Division or hire a contractor. Therefore, proper abatement was not completed and the Division was unaware of the spill. The requirement for the inspector to notify the Division will ensure asbestos spills are addressed as quickly as possible to minimize the danger to public health.
Section III.T.2.
The Commission reorganized and added additional steps regarding the response to major asbestos spills in order to ensure proper asbestos abatement. First, it required that an Air Monitoring Specialist (AMS) determine certain issues for both indoor and outdoor spills. The purpose of this is to ensure the most qualified professional (i.e. an AMS) is delineating the spills. The Commission added language requiring that samples for spill delineation must be collected and analyzed using the methods and procedures found in 40 C.F.R. Part 763, Appendix A to Subpart E (EPA 2010) "Interim Transmission Electron Microscopy Analytical Methods", ASTM International Method D5755-09 (Reapproved April 2014) "Standard Test Method for Microvacuum Sampling and Indirect Analysis of Dust by Transmission Electron Microscopy for Asbestos Structure Number Surface Loading", or ASTM International Method D6480-19 (January 2019) "Standard Test Method for Wipe Sampling of Surfaces, Indirect Preparation, and Analysis for Asbestos Structure Number Surface Loading by Transmission Electron Microscopy." Next, the Commission clarified the requirements for a clearance to ensure items are cleaned and cleared before they are returned to property owners and the general public. Objects subjected to an asbestos spill should meet the same clearance requirements as the area of the spill. The Commission added language to clarify that some abatement requirements apply to spills as well (e.g. decontamination, shower and negative pressure). The Commission also clarified that gross removal of additional asbestos-containing materials (ACM) must be done according to all abatement requirements. Additional ACM is ACM that was not part of the original spill.
The Commission added a requirement that any additional measures the Division deems necessary to protect public health in case of a major asbestos spill must be provided in writing. Any written measures provided pursuant to this Section III.T.2.e. are not intended to be final agency action unless and until incorporated into a Cease and Desist Order and/or Compliance Determination Letter.
The Commission removed the section regarding minor asbestos spills as those are below trigger levels and that section was considered guidance.
Maximum Allowable Asbestos Level (Section III.U.)
The Commission added language to clarify that if samples are collected outside a containment and those levels exceed the maximum allowable asbestos level, the General Abatement Contractor must either treat the affected area as an asbestos spill or reanalyze the samples. However, samples outside a containment area are not required.
Structurally Unsound Facilities (Section III.W.)
Previously, in the variances to demolish unsound buildings, the authority and qualifications of the individual determining the building must be demolished were not included. If a variance is granted to demolish an unsound building, all abatement requirements will not be followed. Therefore, the Commission revised and added language to clarify that any variance application to demolish a structurally unsound building must include the name, title, and qualifications of the State or local government representative who determined the structure is unsound. The purpose of this is to ensure only neutral, qualified individuals are making these determinations. The Commission also added a minimum set of requirements that must be addressed in each variance request for the demolition and abatement of a structurally unsound facility.
Exemptions (Section III.X.)
The Commission removed exemptions that are no longer applicable and added language clarifying other exemptions.
Forms and Guidance
In several sections the regulation requires information to be submitted "on forms specified by the Division". Several parties raised the concern that the Division could change this form, requiring new or additional information without prior notification to or involvement by interested stakeholders, resulting in confusion and delays in the initiation and completion of asbestos abatement projects. The Division has indicated that it does not modify or add forms frequently. However, the Commission believes it is important for program efficiency that the Division work with the appropriate stakeholders who may be subject to a new or modified form to ensure that the there is an opportunity to provide input on any substantive changes and to ensure that there is advance notice to those stakeholders affected prior to the form being finalized.
Parties advocated that more detailed abatement requirements be included in the regulation to avoid confusion on what is required during abatement projects. The Division expressed concern that it is not possible to include in regulations requirements that address every possible issue and scenario that may arise during abatement projects, preferring to address specific issues through guidance documents. The Commission agrees with the Division that attempting to include regulatory language that covers all issues and scenarios is impracticable. However, the Commission notes that there are several provisions in the regulation where the regulatory requirements are not specified in detail, leaving the regulated community unsure about what is acceptable compliance and resulting in delays in abatement projects, training, and certification.
The Commission supports the development of guidance to assist the regulated community in understanding what is required. Like the concern over "forms specified by the Division," parties expressed concern that guidance documents could be issued without meaningful involvement by interested stakeholders. Parties also expressed concern that the Division would require compliance with any guidance issued in the same way as if it were a regulation. The Commission recognizes that guidance is not the same as a regulation: compliance with guidance should not be an enforceable requirement. Nevertheless, because guidance is intended to indicate what is acceptable in how to comply with the regulations, the Commission believes it important for the Division to involve stakeholders when it drafts new or revised guidance. The Commission understands that the Division has made the commitment to conduct a stakeholder process in the drafting of any guidance and it encourages the Division to commence meaningful stakeholder processes as expeditiously as possible to minimize confusion and delays. The Commission further requests the Division to provide an update to the Commission by October 2021.
Remote Training
Because of restrictions in in-person activities due to the COVID-19 pandemic, the Division has allowed for refresher trainings in the asbestos disciplines to be live-remote. Parties have submitted that virtual training should be allowed and more formally included in the regulation. The Division has recognized that live-remote refresher courses, where hands-on training is not as critical, may in the future be included in the regulation, but the Division does not support including live-remote training as an option now in the regulation stating that it has not had enough time to adequately evaluate the process. The Commission recognizes there are advantages associated with on-line training, including air quality and safety benefits associated with limiting commuting as well as enhanced access to training, especially for rural communities. With the need to continue restrictions in in-person activities until the COVID-19 pandemic is controlled, the Division should be able to collect sufficient data to evaluate the virtual training process and should have sufficient time to work with interested stakeholders to determine how virtual on-line training could be made a permanent option in the regulation. The Commission encourages the Division to continue authorizing live-remote refresher courses in the interim until a determination is made regarding a rulemaking to consider a regulatory change.
Findings Pursuant to § 25-7-110.5(5), C.R.S.
EPA's NESHAP and AHERA rules do not limit states from developing more stringent requirements for asbestos. 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:
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:
5 CCR 1001-10-B-VII