No. 33782 (5-year Review): Rule R311-500. Illegal Drug Operations Site Reporting and Decontamination Act, Decontamination Specialist Certification Program

DAR File No.: 33782
Filed: 06/23/2010 09:38:23 AM

NOTICE OF REVIEW AND STATEMENT OF CONTINUATION

Concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule:

Title 19, Chapter 6, Part 9, Illegal Drug Operations Site Reporting and Decontamination Act, was enacted in May 2004. The statute requires the Department of Environmental Quality (DEQ) Solid and Hazardous Waste Control Board to establish within the DEQ/Division of Environmental Response and Remediation (DERR): a) certification standards for any private person, firm, or entity involved in the decontamination of contaminated property; and b) a process for revoking the certification of a decontamination specialist who fails to maintain the certification standards.

Summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule:

A public comment period for Rule R311-500 was initiated 04/15/2005 through 05/16/2005. The DERR received formal comments from two individuals, Mr. Michael Rowze of Certified Decontamination and Mr. Bill Reyns of the Weber Morgan Health Department. These comments follow and are included verbatim without changes or summarization for the purposes of this five-year review. In order to maintain consistency within the public record, the original numbering of the comments and responses to comments is used in this five-year review. A number of comments pertained to Rule R392-600 Illegal Drug Operations Decontamination Standards adopted by the Department of Health and do not affect Rule R311-500. Responses were provided for all comments received. However, the comments pertaining to Rule R392-600 were forwarded to the Department of Health and are not included in this five-year review. The DERR also received a comment from Kerry Cramer of the Salt Lake Valley Health Department on 05/25/2010. Mr. Cramer's comment relates to Rule R311-500 and is also contained in this document verbatim without changes or summarization to ensure consistency with the public record. COMMENTS FROM MICHAEL ROWZE dated 06/09/2005: COMMENT #1: I believe persons untrained in chemical decontamination lack the skills and knowledge necessary to correctly decontaminate clandestine meth labs. Industrial hygienists and chemists may have some knowledge about the subject, but decontamination is its own science. Hazwoper training provides useful safety information but is no substitute for a decontamination course. I recommend the Department of Environmental Quality require applicants to complete a recognized decontamination course prior to receiving their license. COMMENT #8: In the past, decontamination contractors did not need to know how to decontaminate to get their names on health department lists. One health department has a written ordinance that requires applicants to describe their decontamination training. Someone could describe their training by saying, for example, "I took high school chemistry in the eleventh grade and got a "D." In such an instance, this person's name would have been added to the list. The decontamination specialist licensing program should not follow this precedent. The State requires asbestos decontamination personnel to complete a recognized training course. You should require chemical decontamination personnel also complete a recognized training course. COMMENT #9: The proposed requirements under Rule 311-500-5. Eligibility for Certification requires decontamination specialist applicants to pass a test prepared by the "executive secretary." I feel confident State tests for physicians, attorneys, plumbers, electricians, etc. were written by professionals from those sciences. I recommend the decontamination specialist test be written by persons trained and experienced in chemical decontamination. Under the new law, all government records about buildings that were meth labs will be expunged. A seller will not be required to disclose a home's meth lab history once the health department clears the house. The health departments and the people who later occupy the buildings rely totally on the skill and honesty of the decontamination specialist. I feel it is essential this Rule provide the Department of Environmental Quality the authority and guidelines to ensure licensed decontamination specialists are skilled, knowledgeable and capable in decontaminating clandestine meth labs. COMMENT #10: The comment is divided into three parts and recommends the following changes to R311-500-1. R311-500-1. Objective, Scope and Authority. (a) Objective. The Decontamination Specialist Licensing Program is designed to ensure individuals performing chemical testing and chemical decontamination are knowledgeable and skilled in the sciences of chemical decontamination and testing, and in the established decontamination standards. (b) Scope. These certification rules apply to individuals who, for hire, perform or teach confirmation sampling or decontamination of property that is on the contamination list specified in Section 19-6-903(3)(b) of the Illegal Drug Operations Site Reporting and Decontamination Act. (c) Authority. Section 19-6-906 directs the Department of Environmental Quality Solid and Hazardous Waste Control Board, in consultation with the Department of Health and local Health Departments, to make rules to establish within the Division of Environmental Response and Remediation: (1) certification standards for any private person, firm, or entity involved in the confirmation sampling or decontamination of contaminated property; and (2) a process for suspending or revoking the certification of a Decontamination Specialist for dishonesty, incompetence or failure to maintain certification standards. COMMENT #11: The comment is divided into eight parts and recommends the following changes to R311-500-2. R311-500-2. Definitions. (a) Refer to Section 19-6-902 for definitions not found in this rule. (b) For the purposes of the Decontamination Specialist Certification Program rules: (1) "Applicant" means any individual who applies to the Board to become a licensed Decontamination Specialist or to renew their license. (2) "Board" means the Solid and Hazardous Waste Control Board. (3) "Certificate" means a document that evidences completion of a recognized course of instruction. (4) "Certification" means approval by the Board to perform or teach decontamination or confirmation sampling of contaminated property under Title 19 Chapter 6, Illegal Drug Operations Site Reporting and Decontamination Act. (5) "Certification Program" means the Division's process for issuing, denying, suspending and revoking Certification. (6) "Confirmation Sampling" means collecting samples and specimens during a preliminary assessment or upon completion of decontamination for the purpose of having the samples and specimens analyzed for chemical contaminants. (7) "Decontamination" means treatment or removal of contamination to reduce concentrations of hazardous chemicals below the decontamination standards defined in R392-600 and below hazardous levels as determined by the National Institute of Occupational Safety and Health (NIOSH). (#) "License" means the legal authority to perform or teach chemical decontamination or confirmation sampling. (#) "Recognized Course of Instruction" means a training course of instruction approved by the Board that fulfills the training requirement in R311-500-5(a)(2). COMMENT #12: The comment is divided into three parts and recommends the following changes to R311-500-5. R311-500-5. Eligibility for license. (a) There shall be three certification categories for licensed decontamination specialists. The three categories are: (1) Chemical decontamination; (2) Confirmation sampling; and (3) Chemical contamination instructor. (b) Applicants shall have certified in one or more category to be eligible for a license. (a) For initial and renewal licensing as a licensed decontamination specialist, an applicant shall: (1) Submit a completed application to the Board (Note: This paragraph [removed language] is vague and ambiguous and, therefore, unenforceable.); (2) Have successfully completed a recognized course of instruction in chemical decontamination or confirmation sampling; and (3) Successfully pass a certification examination developed and administered by the Board by achieving a score of 80% or better. (4) Pay a fee as determined by the Board. (b) Applicants who fail an initial examination may re-take the examination after thirty days. (c) Applicants who fail a re-examination may re-take the examination after one hundred, eighty days. (d) Licenses shall be renewed every three years. COMMENT #13: The comment is divided into three parts and recommends the following changes to R311-500-8. R311-500-8. Performance Standards. (a) All individuals performing or participating in decontamination activities for hire shall: (1) be certified prior to engaging in any decontamination activities for the purpose of removing the contaminated property from the list referenced in Section 19-6-903(3)(b) and display the certificate upon request; (2) report to the local Health Department the location of any property found to be chemically contaminated, or the subject of decontamination work by the Decontamination Specialist; (3) not commence or participate in decontamination work unless and until a work plan is approved by the local health department; (4) perform decontamination work in accordance with the workplan; (5) shall perform work meeting applicable local, state and federal laws, including certification and licensing requirements for performing construction work; (5) comply with all safety training requirements in accordance with 29 CFR 1910.120; (9) submit a Final Report to the local Health Department, which includes an affidavit stating that the property has been decontaminated to the standards outlined in R392-600; (10) maintain a current address and phone number on file with the Division; (11) not participate in fraudulent, unethical, deceitful or dishonest activity with respect to performance of work for which certification is granted; (12) not participate in any other activities regulated under R311-500 without meeting all requirements of that certification program.; and (13) shall ensure sheetrock, plaster, vinyl, linoleum, ceiling texture, ceiling tiles, and other materials that commonly contain asbestos, are tested for asbestos as required in R307-801-9, Utah Administrative Code prior to removal. (b) All individuals for hire performing or participating in confirmation sampling shall: (1) be certified and licensed prior to advertising for or accepting confirmation sampling work; (2) report to the local Health Department the location of any property that tests positive for chemical contamination; (3) follow scientifically sound and accepted sampling procedures; (4) submit a Final Report to the local Health Department regarding all post-decontamination sampling and tests; (5) maintain a current address and phone number on file with the Division; and (6) not participate in fraudulent, unethical, deceitful or dishonest activity with respect to performance of work for which certification is granted. COMMENT #14: The comment suggests the following additions to R311-500. R311-500-# Certified Decontamination Instructor License (A) Recognized courses of instruction shall only be taught by licensed, certified decontamination instructors. (a) Persons requesting certification as a decontamination instructor shall: (1) Complete and submit a Certified Decontamination Instructor Application to the Board; (2) Provide a copy of the syllabus, lesson plan, student workbook, student handouts, and tests with answers to the Board; and (1) Pay an application fee required by the Board. (b) The determination to issue or deny a certified decontamination instructor license and status as a recognized course of instruction shall be made by the Board upon review of the application and accompanying training materials. The determination shall be made based on the applicant's decontamination training and experience, and instructor training and experience. (b) Upon approval of the application, the Board shall issue the applicant a Certified Decontamination Instructor License. (c) Upon approval of a course of instruction, the Board shall provide the applicant with a letter which states the course of instruction is granted the status of a Recognized Course of Instruction. (d) Proposed changes to a recognized course of instruction shall be provided to the Board for approval. The Board shall respond to all requests for proposed changes, and grant approval or disapproval in a letter. (e) Certified decontamination instructors shall obtain a completed Training Evaluation Form from each student completing the course of instruction. The completed training evaluation forms shall be provided to the Board within 14 days, along with a roster of all students completing the course. (f) Certified decontamination instructors who fail to provide a course roster and training evaluation forms within 14 days may have their instructor certification suspended or revoked. (g) The Board should suspend or revoke the certified decontamination instructor license and status as a recognized course of instruction when a substantial number of training evaluation forms indicate the trainer or the course of instruction are of poor quality. (h) The Board may suspend or revoke a certified decontamination instructor license or recognized course of instruction status for other good cause based on substantial evidence the instructor violated Utah or Federal law, committed unsafe acts or created unsafe conditions. COMMENTS FROM BILL REYNS dated 06/09/2005: All comments were related to R392-600, Illegal Drug Operations Decontamination Standards adopted by the Department of Health and do not affect R311-500. COMMENT FROM KERRY CRAMER dated 05/25/2010: There are several decon specialists who have interpreted the current R311-500 to require reporting to the local health department only in cases of law enforcement involvement. (b) Scope. These certification rules apply to individuals who perform decontamination of property that is on the contamination list specified in Section 19-6-903(3)(b) of the Illegal Drug Operations Site Reporting and Decontamination Act. (a) A Certified Decontamination Specialist performing decontamination activities at contaminated property: (1) shall be certified prior to engaging in any decontamination activities for the purpose of removing the contaminated property from the list referenced in Section 19-6-903(3)(b) and display the certificate upon request; (2) shall report to the local Health Department the location of any property that is the subject of decontamination work by the Decontamination Specialist; If the decon activity is the result of a positive for meth by a CDS, local health departments are not being notified. If this language could be tightened up, life would be better for locals.

Reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any:

JUSTIFICATION: Rule R311-500, Decontamination Certification Program Rules, should continue since Title 19, Chapter 6, Part 9, Illegal Drug Operations Site Reporting and Decontamination Act, requires the DEQ/DERR to develop and maintain a certification program for Decontamination Specialists. The statute also provides a mechanism for Certified Decontamination Specialists to help remove property from the contamination list. Title 19, Chapter 6, Part 9, has not been repealed. AGENCY DISAGREEMENT/RESPONSES: The following statements were made in response to the comments previously raised during the public comment period for R311-500 initiated 04/15/2005 through 05/16/2005. As mentioned above, the DERR received formal comments from two individuals, Mr. Michael Rowze of Certified Decontamination and Mr. Bill Reyns of the Weber Morgan Health Department. The responses to these comments are included below and are written verbatim without changes or summarization for the purposes of this five-year review. A number of comments pertained to Rule R392-600 Illegal Drug Operations Decontamination Standards, adopted by the Department of Health and do not affect Rules R311-500 and R311-501. Responses were provided for all comments received. However, the comments pertaining to Rule R392-600 were forwarded to the Department of Health and neither the comments nor responses are included in this five-year review. The DERR also drafted a response to Mr. Kerry Cramer of the Salt Lake Valley Health Department for the comment he provided on 05/25/2010. RESPONSES TO MICHAEL ROWZE dated 05/31/2005: RESPONSE #1: The Occupational Safety Health Agency (OSHA) Hazardous Waste Operation and Emergency Response (HAZWOPER 29 CFR 1910.120) standard is not intended to be a substitute for a decontamination course. Rather, this standard is included as a criterion of eligibility since health and safety training is essential for any party performing work in a clandestine drug laboratory. With respect to the second portion of the comment, the Division did not propose a formal training course in part, to help mitigate costs to applicants and to streamline the application and certification process. Furthermore, the training requirements, rules and general programmatic approach proposed in R311-500 and R311-501 are consistent with other rules and procedures established within the Division and provide a reasonable means to fulfill the requirements of the Illegal Drug Operations Site Reporting and Decontamination Act with the resources currently available. The statute requires the Division to develop certification standards for any private person, firm or entity involved in decontamination of contaminated property. The statute does not provide the authority to develop a licensing program. Individuals performing decontamination (as defined in the rules) should be knowledgeable of accepted procedures currently employed in the field of clandestine drug lab cleanups. The Division believes this can be done through independent study/training and demonstrated through a competency examination administered prior to certification. A Clandestine Drug Laboratory Certification Training Manual will be drafted and made available to all interested parties prior to the first examination noted in the rules. Among other items, the document will cover the critical elements of R392-600, Illegal Drug Operations Decontamination Standards (including preliminary assessment, workplan, decontamination, confirmation sampling and final reporting) and prepare an applicant for the examination noted in R311-500-5. The procedures set forth in the proposed rules do not preclude an applicant from obtaining additional training as necessary to pass the examination. RESPONSE #8: The proposed rules include eligibility requirements that must be met. Any individual may apply for certification by paying the applicable fees and submitting an application to the Executive Secretary to demonstrate that the applicant meets the eligibility requirements specified in R311-500-5 and will comply with the performance standards in R311-500-8 after receiving the certificate. The examination required in R311-500-5 is designed to demonstrate a minimum competency level in this field. An applicant will not be eligible for certification, and subsequently the Certified Decontamination Specialist List noted in R311-500-11, unless they pay the applicable fees, pass the subject examination, maintain current OSHA health and safety training and comply with the performance standards defined in R311-500-8. With respect to the second portion of this comment relating to a recognized training course, please refer to comment response #1. RESPONSE #9: The examination noted in R311-500-5 will be based on the Decontamination Specialist Certification Program Training Manual as well as current information accepted in the field of clandestine drug laboratory cleanups. The Division will forward a draft copy of the Decontamination Specialist Certification Program Training Manual to interested stakeholders for feedback prior to finalizing the document and initiating the first examination. It is anticipated that stakeholders will consist of representatives from the local health departments and Department of Health as well as members of the real estate, law enforcement and engineering/consulting communities. With respect to the second portion of this comment relating to the skill, honesty and licensing of a decontamination specialist, please refer to comment responses #1, #5 and #8. RESPONSE #10: Please refer to comment responses #1, #2, #8 and #9. In accordance with the Illegal Drug Operations Site Reporting and Decontamination Act, certification is only applicable to individuals who perform decontamination of contaminated property on the list specified in Section 19-6-903(3)(b). The authority to make rules is outlined in Section 19-6-906(2) of the Illegal Drug Operations Site Reporting and Decontamination Act. The language proposed in this section was copied from the statute. RESPONSE #11: Section 19-6-906(2) of the Illegal Drug Operations Site Reporting and Decontamination Act requires the Division to develop certification standards for any private person, firm or entity involved in decontamination of contaminated property. The statute does not establish authority to develop a licensing program as requested in the comment. There were no proposed changes to this [Board] definition. [completion of a recognized course of instruction] Please refer to comment response #1. In accordance with R311-500-3, the Executive Secretary (UST) of the Solid and Hazardous Waste Control Board is delegated authority to administer the Decontamination Specialist Certification Program. In addition, there is no recognized course of instruction as described in comment response #1 and therefore, "teach" is not added to this definition. Confirmation sampling requirements are addressed under R392-600 and R311-500. The Illegal Drug Operations Site Reporting and Decontamination Act requires the Division to develop certification standards for any private person, firm or entity involved in the decontamination of contaminated property and a process for revoking the certification of a decontamination specialist who fails to maintain the certification standards. The standards and revocation procedures are defined in R311-500 and R311-501. The definition for "Confirmation Sampling" proposed in R311-500 is generally consistent with the definition contained in R392-600 (effective date: May 2, 2005) adopted by the Department of Health. Changing the definition may make the proposed rule inconsistent with R392-600. The definition for Decontamination proposed in R311-500 is generally consistent with the definition contained in R392-600 (effective date: May 2, 2005) adopted by the Department of Health. Changing the definition may make the proposed rule inconsistent with R392-600. [License and Recognized Course of Instruction]. Please refer to comment responses #1 and #13. RESPONSE #12: Please refer to comment responses #1 to address the first portion of this comment relating to licensing. In addition, the Division did not propose tiers to the certification program since the program is designed to certify contractors, not create various categories of competencies. A single certification streamlines the application process, thereby allowing cleanups to proceed in a timely manner. The proposed rules do not prohibit a decontamination specialist from only offering services relating to confirmation sampling or decontamination or prohibit the market from developing and offering courses to assist individuals in preparing for the certification examination. Please refer to comment responses #1 to address the first portion of this comment relating to licensing. In addition, the Occupational Safety Health Agency (OSHA) Hazardous Waste Operation and Emergency Response (HAZWOPER 29 CFR 1910.120) standard is included as a criterion of eligibility since health and safety training is essential for any party performing work in a clandestine drug laboratory. The applicable safety training noted in the rule relates only to the requirements of 29 CFR 1910.120. Please refer to comment response #1 to address the first portion of this comment relating to a recognized training course. The percentage of correct answers required to pass the examination will be determined by the Executive Secretary prior to testing. With respect to the second portion of this comment, the proposed modifications (as noted by strikeouts and underlines) do not change the intent of R311-500 and R311-501. Certification must be renewed every two years to ensure a decontamination specialist remains current on the rules and proficient with sampling, decontamination and other applicable procedures and standards. RESPONSE #13: The performance standards specified in R311-500-8 are only applicable to a certified decontamination specialist performing work on property contained on the contamination list noted in the statute. The standards establish enforceable parameters for which work is conducted and set forth requirements that must be met in the event other workers assist in the cleanup. The decontamination specialist is encouraged to proactively work with the local health departments to ensure their concerns have been addressed prior to commencing with any activities relating to the decontamination of contaminated property. The additional modifications (as noted by strikeouts and underlines) do not change the intent of R311-500 and R311-501. The performance standards established in R311-500-8 state that a decontamination specialist must perform work meeting applicable local, state and federal laws. Should material need to be removed during decontamination, it must be assessed and characterized in advance to ensure compliance with applicable rules and regulations. Please refer to comment responses #21 and #24. The additional modifications (as noted by the underlines) do not change the intent of R311-500 and R311-501. RESPONSE #14: Please refer to comment responses #1, #8, #9, #13 and #21. RESPONSES TO BILL REYNS dated May 31, 2005: All comments were related to R392-600, Illegal Drug Operations Decontamination Standards adopted by the Department of Health and do not affect R311-500. RESPONSE TO KERRY CRAMER dated June 1, 2010: The DERR will evaluate the concern raised by the Health Department when R311-500 is revised. As with any changes to the DERR rules, stakeholders will be consulted and input will be requested. The DERR will keep you informed of the timeline for changes to R311-500. It is anticipated that the rule will be revised once the 5-year review of the Decontamination Specialist Certification Program rules has been completed.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Environmental Response and Remediation
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

Direct questions regarding this rule to:

• Bill Rees at the above address, by phone at 801-536-4167, by FAX at 801-536-4242, or by Internet E-mail at [e-mail]
• Karen Keller at the above address, by phone at 801-536-4107, by FAX at 801-536-4242, or by Internet E-mail at [e-mail]

Authorized by:

Amanda Smith, Executive Director

Effective:

06/23/2010

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