These amendments to the Colorado Hazardous Waste
Regulations, 6 CCR 1007-3, Parts 260, 264, 265, 268 and 100 are made pursuant
to the authority granted to the Hazardous Waste Commission in section
25-15-302(2),
C.R.S., of the Colorado Hazardous Waste Act.
Corrective Action Management Units and Temporary
Units: Corrective Action Provisions Under Subtitle C.
On February 16, 1993, pending the promulgation of the
comprehensive Subpart S regulations governing corrective actions under the
Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C.
6901, the U.S. Environmental Protection
Agency ("EPA") adopted final rules concerning corrective action management
units ("CAMUs") and temporary units under Subpart S of 40 CFR 264. These final
rules allow for exceptions from the otherwise generally applicable land
disposal restrictions ("LDRs") and minimum technology requirements ("MTRs") for
certain wastes managed during corrective action activities ("remediation
wastes") at CAMUs or temporary units located at a RCRA hazardous waste
management facility. EPA's purpose in adopting these final rules was to
facilitate corrective action at RCRA facilities by providing additional
flexibility to regulators in order to expedite and improve remedial decisions
and the management of these remediation wastes.
These final federal rules significantly reduced the federal
regulatory requirements otherwise applicable to the management of remediation
wastes during corrective action at a RCRA facility. Because these federal rules
are less stringent than existing state corrective action requirements, Colorado
is not required to adopt corresponding state analogs to the federal rules to
maintain authorization of its hazardous waste management program under RCRA.
However, the Hazardous Waste Commission believes that state analogs to the
federal rules concerning CAMUs and temporary units should be adopted.
The Hazardous Waste Commission recognizes that LDRs and
MTRs are regulatory concepts developed to control, and minimize the generation
of, hazardous wastes generated from ongoing industrial production processes or
other industrial activities. The Hazardous Waste Commission also recognizes
that remediation wastes managed during corrective action activities at RCRA
facilities may be different from hazardous wastes generated from these
industrial activities. Because of these differences, including, but not limited
to, physical and chemical differences, the Hazardous Waste Commission believes
that for the most part these remediation wastes can be managed without
requiring compliance with the otherwise applicable LDRs and MTRs and yet still
provide protection to human health and the environment. Further, the Hazardous
Waste Commission believes that affording relief from the otherwise applicable
LDRs and MTRs for the management of remediation wastes at CAMUs and temporary
units will facilitate corrective action at RCRA facilities.
The Hazardous Waste Commission does, however, recognize
that there will be specific cases where the application of the LDRs or MTRs to
the management of remediation wastes at CAMUs or temporary units will be
necessary to protect human health and the environment.
The Hazardous Waste Commission has today adopted state
analogs which are patterned after and are very similar to, and it is the
general intent of the Hazardous Waste Commission that they be interpreted in a
manner consistent with, the federal rules concerning CAMUs and temporary units.
In that regard, this Statement of Basis and Purpose hereby incorporates by
reference the preamble language for the federal rules adopted by the EPA as
published at 58 FR 8658 to 8685, February 16, 1993.
The Hazardous Waste Commission has, however, made certain
changes to the state analogs to account for certain differences in state law
from federal law, to address state issues, and express the Hazardous Waste
Commission's intent in adopting the rules. The basis and purpose of these
changes are explained below.
The definitions of "disposal facility" and "landfill" in
part 260.10, and part 264.552(a)(2) were amended to specifically list the
otherwise generally applicable regulatory requirements in part 264, part 265
and part 268, including LDRs and MTRs, which would not apply to the management
of remediation wastes at a CAMU. Also, a new subsection (3) was added to part
264.552(a) to specifically identify otherwise generally applicable regulatory
requirements that will continue to apply to CAMUs, including, but not limited
to, the hazardous waste siting requirements if the remediation wastes remaining
in place after closure of the CAMU are hazardous wastes.
The Hazardous Waste Commission's intent is that CAMUs be
excepted from the MTRs in subparts K, L, M, and N of part 264 and part 265, and
from subparts F (groundwater protection) and G (closure and post closure).
Groundwater monitoring and closure and post-closure requirements for the CAMU
will instead be established by the Department of Health pursuant to part
264.552(e) on a case-by-case basis.
The inclusion of new subsection (3) of part 264.552(a)
clarifies that where remediation wastes placed into a CAMU would be considered
hazardous wastes under the Colorado Hazardous Waste Regulations, the
owner/operator of the RCRA facility must ensure compliance of the CAMU and its
associated management activities with subparts B (general facility standards),
C (preparedness and prevention), D (contingency plan and emergency procedures),
and E (manifest system, recordkeeping and reporting). In many instances, this
will simply mean the owner/operator of the RCRA facility will need to amend
existing facility plans. Based upon the statutory requirement in part 2 of the
Colorado Hazardous Waste Act, §
25-15-201, C.R.S., that disposal
of hazardous waste on one's own property is permitted only if the disposal
complies with the hazardous waste siting regulations. CAMUs with hazardous
remediation wastes remaining in place after closure must comply with Part 2. As
concerns compliance with the hazardous waste siting regulations, hazardous
waste disposal at a CAMU is no different from hazardous waste disposal at any
other site. However, it is the intent of the Hazardous Waste Commission that
the hazardous waste siting requirements be applied in a manner which takes into
consideration the purposes and objectives of CAMUs.
The definition of "facility" in part 260.10 was amended to
more clearly indicate that the subsection (2) definition of facility applied to
corrective action required pursuant to either of the corrective action
provisions of the Colorado Hazardous Waste Regulations, or to the statutory
corrective action provision in the Colorado Hazardous Waste Act.
The definition of "remediation waste" in part 260.10 was
amended to include solid waste, irrespective of whether the solid waste
contains a listed hazardous waste or exhibits a hazardous waste characteristic
as indicated by the federal definition. A solid waste that contains a listed
hazardous waste or exhibits a hazardous waste characteristic is a hazardous
waste. Without the amendment, the reference to solid waste in the definition of
"remediation waste" would be superfluous. The language of the preamble
concerning the federal definition is consistent with the amendment made to the
state analog and the Hazardous Waste Commission believes the amendment more
accurately reflects its intent.
Part 264.552(c) of the federal rule required that
regulators designate CAMUs in accordance with certain identified factors. Three
of the seven listed factors were amended by the Hazardous Waste Commission in
adopting a state analog to part 264.552(c). The "minimize releases to the
extent practicable" standard in factor (4) of the federal rule for designating
a CAMU was amended to require that a CAMU be designated only if it will meet
the closure standard for CAMUs under part 264.552(e)(4)(i)(B). The Hazardous
Waste Commission believes that only CAMUs which the Department of Health
believes can meet the closure standard should be designated and by making the
standard for designation and closure the same, the possibility that a CAMU
could be designated which would not meet the closure standard is
avoided.
Factors (5) and (7) of the federal rule respectively state
preferences for expediting the timing of remedial activity and for minimizing
the land area upon which remediation wastes would remain in place. It was clear
from the language of the preamble concerning these factors that the stated
preferences were, however, not to be absolutes. The federal rule in fact
attempted to qualify the preferences by requiring timing to be expedited and
land area to be minimized only to the extent "practicable."
The Hazardous Waste Commission believes "practicable" is
ambiguous, and it is the Hazardous Waste Commission's intent to eliminate
ambiguity in its regulations. The Hazardous Waste Commission's intent is that
CAMUs should comply with the goals stated in §
§ 264.552(c)(1) and
(2).
Part 264.552(e)(4)(ii)(B) and 264.552(e)(4)(iv) were
amended to include a reference indicating that the Department of Health may
require a CAMU to be lined where necessary to protect human health or the
environment. The Hazardous Waste Commission does not intend that liners be
required on all CAMUs, only on those CAMUs where they are necessary for the
protection of human health and the environment.
Part 264.552(e)(4)(iv) was also amended to include a
requirement that a notation be added to the deed to the RCRA facility property
indicating that the property was used to manage remediation wastes. Section
25-15-303(4),
C.R.S., requires that all deeds of property used for the disposal of hazardous
waste shall contain a deed notation indicating that the property was so used.
The amendment to part 264.552(e)(4)(iv) is consistent with, and is intended to
satisfy that statutory requirement. Owners/operators of the facilities can use
a different deed notation than the one identified in the state analog with the
approval of the Department of Health. Such alternative deed notations would
seem especially appropriate where the remediation wastes managed at the
facility were not hazardous.
The federal rule contained provisions concerning how CAMUs
and temporary units would be incorporated into existing permits, part
264.552(g) and part 264.553(f) respectively, but did not indicate how they
would be incorporated into new permits or orders. New part 264.552(h) and (i),
and new part 264.553(g) and (h) were added to the state analogs to clearly
indicate how CAMUs and temporary units will be incorporated into the Department
of Health's permitting or order process. Existing part 264.552(h) and part
264.553(g) in the federal rules were relettered (j) an (i) respectively to
accommodate the addition of the new parts.
A new sentence was added to the end of Part 265.5 to
indicate that corrective action orders issued by the Department of Health under
this part or section
25-15-308, C.R.S., may designate
or establish a CAMU or temporary unit as provided for in part 264.552 and part
264.553. Since CAMUs and temporary units are available to both permitted and
interim status RCRA facilities, but the provisions providing for their
establishment are in Part 264 with no corresponding provisions in Part 265, the
Hazardous Waste Commission felt it was necessary to include a reference in Part
265.5 to the Part 264 provisions.
Sections 25-15-303 and 25-15-308, C.R.S., require all
facilities for the storage, treatment or disposal of hazardous waste in
Colorado to obtain a permit from the Department of Health. CAMUs and temporary
units for the management of hazardous remediation wastes at existing or newly
permitted facilities will be incorporated through the present permitting
process in part 100 into the facility permit, and will thereby satisfy the
statutory requirement for a permit.
Interim status facilities which do not intend on continuing
operation and would not require a permit, except for the management of
hazardous remediation waste as part of corrective action at the facility, could
also be required to follow this existing permitting process. However, the
Hazardous Waste Commission believes that this process was established to review
the present and future operation of hazardous waste management facilities, and
given its detail and time commitment it is ill suited as a reviewing process
for interim status facilities which are simply closing and conducting
corrective action, including establishing a CAMU or a temporary unit. The
Hazardous Waste Commission believes that, in the context of a closing interim
status facility, the designation procedure for CAMUs and the standard
establishment procedure for temporary units is a sufficient regulatory review
process and that CAMUs and temporary units established pursuant to those
procedures should be granted a permit by rule under part 100.21, provided the
public has had an opportunity to comment on the establishment of the CAMU or
the temporary unit. Therefore, the Hazardous Waste Commission has promulgated a
new permit by rule provision to better accommodate these interim status
facilities.
Lastly, references in the federal rules adopted by the EPA
to other federal regulations or statutes have been replaced in the state
analogs adopted by the Hazardous Waste Commission by references to
corresponding state regulations or statutes.
Statement of Basis and Purpose - Rule-making Hearing
of June 21, 1994
Notes
6 CCR 1007-3-8.10
37
CR 24, December 25, 2014, effective 3/2/2015
38
CR 11, June 10, 2015, effective 6/30/2015
39
CR 05, March 10, 2016, effective
3/30/2016
39
CR 11, June 10, 2016, effective
6/30/2016
40
CR 06, March 25, 2017, effective
4/14/2017
40
CR 11, June 10, 2017, effective
6/30/2017
40
CR 21, November 10, 2017, effective
11/30/2017
41
CR 06, March 25, 2018, effective
4/14/2018
41
CR 11, June 10, 2018, effective
6/30/2018
41
CR 24, December 25, 2018, effective
1/14/2019
42
CR 06, March 25, 2019, effective
4/14/2019
42
CR 06, March 25, 2019, effective
5/30/2019
42
CR 11, June 10, 2019, effective
6/30/2019
43
CR 12, June 25, 2020, effective
7/15/2020
44
CR 06, March 25, 2021, effective
4/14/2021
44
CR 11, June 10, 2021, effective
6/30/2021
44
CR 24, December 25, 2021, effective
1/14/2022
45
CR 11, June 10, 2022, effective
6/30/2022
45
CR 17, September 10, 2022, effective
9/10/2022
45
CR 17, September 10, 2022, effective
9/30/2022
45
CR 23, December 10, 2022, effective
1/30/2023
