To: Members of the State Board of Health
From: Joe Schieffelin, Manager, Hazardous Waste Program
Colleen Brisnehan, Environmental Protection Specialist, Methamphetamine Laboratory Project Lead
Through: Gary W. Baughman, Division Director, Hazardous Materials and Waste Management Division GWB
Date: August 20, 2014
Subject: Request for Rulemaking Hearing
Proposed Amendments to 6 CCR 1014-3, Regulations Pertaining to the Cleanup of Methamphetamine Laboratories, with a request for the rulemaking hearing to occur October 15, 2014.
The Department is proposing to amend 6 CCR 1014-3, Regulations Pertaining to the Cleanup of Methamphetamine Laboratories, to incorporate requirements of SB13-219 (Section 25-18.5-102, C.R.S.). SB13-219 directs the Board of Health to:
· promulgate procedures for testing and evaluating contamination at illegal drug laboratories involving methamphetamine (meth labs);
· establish cleanup standards for the cleanup of meth labs;
· promulgate rules for a training and certification program for individuals and companies involved in assessment, decontamination and sampling of meth labs;
· establish fees for certification and monitoring of individuals and companies involved in assessment, decontamination and sampling of meth labs;
· establish fees for approval of persons that train individuals involved in assessment, decontamination and sampling of meth labs; and
· promulgate rules for determining administrative penalties for violations of the statute and regulation.
The proposed amendments revise current rules and add new language as required by SB 13-219. The revisions to the current rules were extensive; as such the current rule is being repealed (Line 2271-3369) in its entirety and being replaced with the proposed language (Line 1-2270). The Department has conducted an extensive stakeholder process to develop the proposed changes to the regulations. The Department asks the Board of Health to schedule a rulemaking hearing on the proposed rule changes for October, 2014.
Changes to current rule, reflected in Part 1 of the proposed rule, include:
· New definitions as directed by SB 13-219
· New definitions to align with current practice, address stakeholder feedback for clarity, and define new terms associated with new requirements.
· Change in definition of existing terms, including contamination, decontamination, and methamphetamine.
· Addition of a screening level assessment phase for real estate transactions, including the number of samples required to screen for meth contamination.
· Update and elaborate on the decontamination and removal procedures to align with current practice, clarify requirements and include some disclosures.
· Improve alignment of meth lab waste handling procedures with hazardous and solid waste disposal requirements.
· Clarify restrictions on conflict of interest between Consultants and Contractors to ensure that a person or company cannot perform clearance on their own decontamination project, and that there is no business relationship between the Consultant and Contractor.
· Move requirements from the appendices into the body of the rule to consolidate and improvement alignment across each phase of the clean-up.
· Update incorporations by reference.
· Replace the term “functional space” with “room” to provide a more clear basis for determining the number of clearance samples that must be collected. This was in response to some industrial hygienists improperly designating functional spaces in order to reduce the number of required clearance samples. In some cases, an entire level of a home was designated as a functional space, resulting in the collection of only one composite sample from each level of the home. The use of “room” instead of “functional space” will ensure that clearance samples are collected from every room, ensuring adequate and representative sample collection at all properties.
· Elimination of the minimum amount of sample area required for clearance sampling of a single meth lab. The new per room sampling requirements eliminate the need for minimum sample area requirements.
· Reduction in the number of individual samples (aliquots) that can be included in a composite sample from 5 to 4. This was done in response to information that any more than 4 aliquots can impact the analytical laboratories ability to extract the sample.
· Change in the cleanup level specific to attics, crawl spaces and other limited access areas such as wall cavities. This was done as a result of the cost and difficulty of cleaning up these areas to achieve the current cleanup level. Because these limited access areas present a much lower exposure concern than living spaces, cleaning them to living space cleanup level, which is based on child exposure, is not necessary. Therefore, a cleanup level for adult-only exposure was calculated for limited access areas (attics, crawl spaces, and wall cavities).
· Change in the cleanup level for pre-painted surfaces, which are surfaces that were painted before the presence of contamination was known. Under the current regulation, if contamination in the area is above the standard, the pre-painted surfaces have to be removed. This often results in a property being gutted due to relatively low concentrations of meth. The new cleanup level for pre-painted surfaces takes into account the fact that much of the contamination on these surfaces is trapped by the paint and is not available for exposure. The new level will allow surfaces to remain, with additional encapsulation, when there are relatively low levels of meth beneath the paint. Use of the pre-painted surface cleanup level and encapsulation process is limited to situations where the property was not previously known to be contaminated. Painting cannot be otherwise used as a means of compliance or to change the target cleanup level when meth contamination is known to exist. It should be noted that the level for pre-painted surfaces is equivalent to California’s health based standard for all surfaces.
Additions to current rule reflected in Part 2 and Part 3 include:
· Training and certification requirements for individuals and companies involved in assessment, decontamination and sampling of meth labs, as required by SB 13-219. The bill was introduced in response to media coverage of instances where meth lab cleanup and clearance was not done correctly, resulting in families buying and moving in to properties that were still contaminated with meth. Because the statute does not include a cleanup oversight program at the state level, and provides local agencies cleanup authority but no mandate, many cleanups are conducted without agency oversight. Establishing a state level training and certification program, requiring meth lab work to be conducted by qualified contractors and consultants, was seen as an effective way address the issue of improper cleanup.
· OSHA training as a qualification for certification under Part 2 of the proposed rule. While OSHA standards apply to workers performing meth lab work, OSHA standards are independent of the proposed rule and the Department has no authority to enforce OSHA standards. Thus, the proposed rule does not incorporate OSHA standards. Rather, it includes OSHA training as a qualification for certification to ensure that individuals have a base level of required training necessary to perform their jobs in a safe manner.
· Fees necessary to fund the implementation of SB 13-219, including establishing the regulation, administering the training and certification program, and enforcing the requirements of the regulation and statute through training audits, random document audits and work site inspections, complaint response and enforcement.
· Enforcement as directed by SB 13-219, including penalties for violations of the regulation and statute.
STATEMENT OF BASIS AND PURPOSE
AND SPECIFIC STATUTORY AUTHORITY
for Amendments to
6 CCR 1014-3,
Regulations Pertaining to the Cleanup of Methamphetamine Laboratories
August 20, 2014
Basis and Purpose.
These amendments to 6 CCR 1014-3, Regulations Pertaining to the Cleanup of Methamphetamine Laboratories, are being made pursuant to the authority granted the Board of Health in §25-18.5-102, C.R.S.
A recent law, SB13-219, amended §25-18.5-102, C.R.S., directing the Board of Health to promulgate:
1a) procedures for testing and evaluating contamination at illegal drug laboratories involving methamphetamine (meth labs);
1b) cleanup standards for the cleanup of meth labs;
1c) rules for a training and certification program for individuals and companies involved in assessment, decontamination and sampling of meth labs;
1d) definition of “assessment”, “decontamination” and “sampling”;
1e) procedures for the approval of persons to train consultants or contractors in the assessment, decontamination, or sampling of illegal drug labs; and
1f) procedures for contractors and consultants to issue certificates of compliance to property owners upon completion of assessment, decontamination and sampling of illegal drug laboratories to certify that the remediation of the property meets the cleanup standards established by the Board.
SB 13-219 directs the Board to establish fees for:
2a) certification and monitoring of individuals and companies involved in assessment, decontamination and sampling of meth labs;
2b) monitoring of individuals and companies involved in the assessment, decontamination, and sampling of illegal drug laboratories, necessary to ensure compliance with the statute and regulation; and
2c) approval of persons that train individuals involved in assessment, decontamination and sampling of meth labs.
SB 13-219 directs the Board to adopt rules for determining administrative penalties for violations of the statute and regulation.
Statutory directives 1a) and 1b) listed above were originally established in 2005 and resulted in the current regulations (Part 1). However, SB 13-219 modified certain portions of the directives requiring some changes to Part 1. Statutory directives 1c) through 1f) and 2a) through 2c) are new requirements to establish a new regulatory program. These directives are encompassed in a new Part 2 of the regulations. The last statutory directive establishes a new program to enforce the statute and regulations. The last directive is encompassed in Part 3 of the regulations.
The existing regulations, Part 1, applies to owners of properties with meth contamination, and to those who perform assessment, decontamination and sampling at meth contaminated properties. Revisions to Part 1 are necessary to incorporate statutory changes made by SB13-219 that include clarifications to existing language, and to update proceedures to conform with best and current industry practice.
A new section, Part 2, is being added to the regulation and establishes a training and certification program for individuals involved in meth lab assessment, decontaminatin and sampling. The new section of the regulation will apply to individuals and companies that perform assessment, decontamination and sampling at meth contaminated properties, and to individuals and companies to that provide training required by the regulation. There will be fees associated with the required training and certification program, which will be paid by certified individuals, companies and training providers. There are no known costs to local governments due to the revisions due to revisions in Part 2.
A new section, Part 3, is being added to the regulation and establishes a program to enforce the requiremenmts of the statute and regulation. The new section of the regulation will apply to individuals and companies that perform assessment, decontamination and sampling at meth contaminated properties, and to individuals and companies to that provide training required by the regulation. There will be penalties associated with violations of the statute and regulation. There are no known costs to local governments due to the revisions in Part 3.
The Department would like the Board of Health to schedule a rulemaking hearing on the propsed rule changes for October, 2014.
The Department has conducted an extensive stakeholder process to develop the proposed changes and additions to the regulations. As of the date of this memo, we anticipate that all stakeholder issues will be resolved by the date of the rulemaking hearing.
Specific Statutory Authority.
These rules are promulgated pursuant to §25-18.5-102, C.R.S. The powers and duties of the Department are set forth in §25-18.5-106, C.R.S. The authority to enforce the rules is set forth in §25-18.5-107, C.R.S.
SUPPLEMENTAL QUESTIONS
Is this rulemaking due to a change in state statute?
__X__ Yes, the bill number is SB13-219; rules are ___ authorized _X_ required.
______No
Is this rulemaking due to a federal statutory or regulatory change?
_____ Yes
__X__ No
Does this rule incorporate materials by reference?
__X_ Yes
___ _ No
Does this rule create or modify fines or fees?
__X__ Yes
______No
REGULATORY ANALYSIS
for Amendments to
6 CCR 1014-3,
Regulations Pertaining to the Cleanup of Methamphetamine Laboratories
August 20, 2014
1. A description of the classes of persons who will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule.
The proposed amendments will primarily affect consultants who assess and sample illegal drug laboratories involving methamphetamine (meth labs), contractors who decontaminate meth labs, and entities that provide training to these consultants and contractors. The consultants, contractors and training providers will bear the costs of implementing the training and certification program through fees charged by the Department. These costs may be passed on to property owners; however, it is anticipated that the amendments reflected in Part 1 of the proposed rule will generally decrease the cost of cleaning up meth labs, resulting in a net decrease in costs to the consumer. For example, the cleanup level based on adult-only exposure in attics and crawl spaces is expected to significantly reduce the cost of cleanup in those areas, while still being protective of public health. Similarly, the cleanup level for pre-painted surfaces should reduce the amount of removal required at properties where low level contamination is discovered after the home has been remodeled. This will also reduce costs while remaining protective. The establishment of decontamination procedures for specific types of personal property that require no follow-up sampling will reduce costs and is anticipated to reduce the amount of cleanable personal property being sent to landfills due to the current testing requirements
Other classes of persons that may be affected by the proposed rule include local law enforcement, county or local health departments, or other local entities responsible for oversight of meth lab cleanup. SB 13-219 allows, rather than requires, a local government to declare that an illegal drug lab that has not met remediation standards and is a public health nuisance. The rule acknowledges that a local government may choose to be involved; however, local government involvement is not required and the rules do not prescribe local government involvement. In addition, the rule requires Consultants and Contractors provide local governments a copy of the certificate of compliance. This ensures that local government is informed. It is anticipated that training and certification program, and the Department’s ability to enforce regulatory requirements, will have a positive impact on local government oversight programs by ensuring that individuals involved in meth lab assessment, decontamination and sampling are properly trained and are held accountable for regulatory violations. Nothing in the rulemaking imposes a mandate on local government.