6 CCR 1007-3-8.10 - Basis and Purpose

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

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