6 CCR 1007-3-8.26 - Basis and Purpose

These amendments to 6 CCR 1007-3, Part 101, Part 261 Appendix IX, and § § 264.1080, 265.1080 and 265.1082 are made pursuant to the authority granted to the Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Amendment of Part 261 Appendix IX to Conditionally Delist F006 Hazardous Waste Generated by NTI A Division of Colorado Springs Circuits Inc.

Appendix IX of Part 261 is being amended at this time to conditionally delist F006 hazardous waste generated at NTI, A Division of Colorado Springs Circuits, Inc. ("NTI") in Colorado Springs, Colorado. This delisting will allow NTI to dispose of its waste at a Solid Waste Landfill which meets the requirements of the Colorado Solid Waste Regulations 6 CCR 1007-2, provided it complies with the conditions of the delisting.

NTI operates a commercial electroplating operation located in Colorado Springs, Colorado. The facility generates a wastewater sludge which is classified as a F006 listed hazardous waste. The F006 hazardous waste listing in § 261.31 describes wastewater treatment sludge that is generated from electroplating operations. The basis for each hazardous waste listing is described in Appendix VII of Part 261. Each listing is based on hazardous constituents which are generally contained in wastes described by the listing. The hazardous constituents which formed the basis for the F006 listing include cadmium, hexavalent chromium, nickel, and cyanide (complexed).

The wastewater treatment system at the plant handles approximately 60,000 gallons of wastewater a day producing a dry sludge weight of approximately 14 tons per month. Industrial wastewater produced from the electroplating operation at the facility is collected by containment trenches which flow to large holding tanks. Wastewater proceeds through a series of processes in which the pH is adjusted, and metals are precipitated out with a reducing agent. The metals are then filtered out and concentrated using a microfiltration device and concentrate tank. Ultimately, the concentrated solids are processed through a filter press to remove the liquid and form the F006 sludge cake.

Analytical sampling of the F006 sludge was conducted prior to the submission of the waste delisting petition. The electroplating process does not significantly change on a day-to-day basis. The collected samples adequately represent the waste stream. The Hazardous Materials and Waste Management Division at the Colorado Department of Public Health and Environment (the Division), evaluated the sampling results and the request for petitioning of the waste in accordance with § 260.22. This evaluation was provided to the Commission.

The results of the waste sampling indicated that the waste did not contain detectable concentrations of either cadmium or cyanide. The results of the analysis did indicate that the waste contained detectable concentrations of both nickel and chromium. However, based on health based risk assessment calculations derived using the general assumptions outlined in the Division' s current risk assessment policy, the waste did not contain concentrations of these constituents at levels which would be considered harmful to human health or the environment.

Analytical sampling of the waste also indicated that the waste contained detectable concentrations of arsenic, lead, mercury, and copper. Based on health based risk assessment calculations and average background soil conditions, the Division determined that the waste did not contain concentrations of lead, mercury, or arsenic at levels which would be considered harmful to human health or the environment. However, the results of the health based risk assessment indicated that the concentration of copper in the waste did pose an unacceptable risk to human health and the environment if humans were directly exposed to the waste in a residential setting. Although the assessment showed that the level of copper in the waste was too high to support an unconditional delisting of the waste, further evaluation of the physical and chemical nature of the waste indicated that the waste did not pose an unacceptable risk to human health or the environment if subject to certain conditions regarding its handling and disposal in a solid waste landfill.

The potential for constituents in the waste to leach out and contaminate groundwater was evaluated by the Division using TCLP analytical tests which measure the maximum potential for constituents to be released from the waste. The results of the TCLP analysis indicated that none of the hazardous constituents in the waste showed any chemical potential to leach out of the waste, and that nickel and copper in the waste showed only small potentials to be leached from the waste which are adequately protected against in a solid waste landfill setting.

Further, the results of the waste sampling indicated that the waste sludge does not contain any organic constituents. Consideration of the potential health effects caused by exposure to these constituents was therefore not considered in evaluating the petition by the Division. This delisting is being granted under conditions which specify disposal requirements, specify recordkeeping requirements, and storage requirements for the delisted sludge. Conditional delisting of the waste also prohibits any major changes to the electroplating process or wastewater treatment process without prior notification, evaluation, and approval by the Division.

This delisting does not apply to waste which demonstrates "significant changes" as defined in Delisting #002 in Part 261, Appendix IX-Wastes excluded under § 260.20 and § 260.22(d), or if any of the conditions specified in Part 261, Appendix IX for this delisting are not met. Should either of these occur, the waste is and must be managed as a hazardous waste. While the Division has approved a conditional delisting for this specific waste at this specific site, the findings and criteria associated with the approval are unique. Other petitions for delisting, even if similar in material or use, will be reviewed by the Division on a case-by-case basis.

Organic Air Emission Standards for Tanks Surface Impoundment and Containers-Postponement of the Effective Date

Colorado currently operates an authorized hazardous waste management program under the federal Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. sections 6901 to 6992. The state's program is equivalent to and consistent with the federal hazardous waste program established by the U.S. Environmental Protection Agency ("U.S. EPA") pursuant to RCRA. To maintain its authorization to operate its state program in lieu of the U.S. EPA operating a federal program, Colorado must adopt state requirements equivalent to and consistent with the overlying federal requirements. Further, while the state has the authority to be more stringent than the federal program, only where there has been a clear state need to address a specific hazardous waste management issue in Colorado has the Hazardous Waste Commission adopted state program requirements which are more stringent than the overlying federal requirements.

At the April 18, 1995 Hazardous Waste Commission meeting the Commission adopted air standards that apply to owners and operators of permitted hazardous waste treatment, storage and disposal facilities (TSDF) and certain hazardous waste generators accumulating waste on-site in RCRA permit-exempt tanks and containers. The air emission standards adopted by the Commission were intended to be and were equivalent to the federal air emission standards adopted by the U.S. EPA. In adopting the state air emission standards the Commission relied in large part upon the basis expressed by the U.S. EPA in adopting the federal air emission standards. The effective date for both the state and federal air emission standards was to be December 6, 1995.

On November 13, 1995, the U.S. EPA postponed the effective date of the federal air emission standards until June 6, 1996. (60 FR 56952). The Hazardous Waste Commission held an emergency rulemaking hearing on November 28, 1995 to extend the effective date of the state air emission standards for 90 days or until a final rule-making hearing could be held. A final rulemaking hearing was held on January 16, 1996 and the six month extension of the state air emission standards, until June 6, 1996, was formally adopted.

On June 5, 1996, the U.S. EPA issued another delay to the effective date of the federal Subpart CC air emission standards. The new effective date will be October 6, 1996 for all provisions of the standards, including the applicability of Part 265, Subparts AA, BB, and CC to 90-day accumulations units at hazardous waste generators, the applicability of subparts AA, BB, and CC to RCRA permitted units, and the applicability of the final standards to tanks in which waste stabilization activities are performed. All other compliance dates for the air emission standards remain as published in the December 6, 1994 final rule (59 FR 62896).

This extension of the federal effective date has again created the situation where, if the state effective date is not extended, the state program will inadvertently become more stringent than the federal program. The Commission believes that requiring compliance with the state air emission standards before any overlying federal effective date places an unnecessary burden upon the regulated community in Colorado. The creation of such a situation was not the intent of the Commission in originally promulgating the state air emission standards.

To maintain state consistency with the federal environmental requirements, the Commission held an emergency rulemaking hearing on June 5, 1996 and extended the effective date of the state air emission standards as adopted at its January 16, 1996 hearing for a period of 90 days or until a final rulemaking could be held.

At its rulemaking hearing on August 20, 1996, this rule was again considered by the Commission to make permanent the final effective date of October 6, 1996. At that hearing, however, the Commission received information from the Division indicating that it is likely that the EPA will again extend the effective date of the federal rule, or will propose substantive amendments to the rule. These amendments are anticipated to provide certain compliance options for waste determination procedures and for container standards that are not currently available. In addition, these revisions would reduce the monitoring, record keeping, and reporting requirements for affected tanks, surface impoundments, and containers. The Commission, therefore, decided to not adopt an effective date for the rule, preferring instead to wait until EPA has taken final action. Once EPA has taken final action, the Commission will notice and conduct a rule-making hearing to consider any amendments to the rule that may be necessary and to adopt an effective date for the rule.

Part 101 Compliance Advisory Process

The amendments to Part 101 of the Colorado Hazardous Waste Regulations, 6 CCR 1007-3, are adopted by the Hazardous Waste Commission pursuant to section 25-15-302 of the Colorado Hazardous Waste Act.

These amendments to Part 101 include recommendations made by the Hazardous Materials and Waste Management Division and the Part 101 Critical Review Team to adopt a new Compliance Advisory process for Department enforcement actions. The amendment also include necessary conforming amendments to the Regulations to reflect changes made in 1992 to the Colorado Hazardous Waste Act.

As part of a department-wide initiative, Critical Review Teams ("CRTs") were formed to review all existing regulations for the purpose of determining whether the regulations are necessary or if the same goals could be accomplished in a non-regulatory manner. All CRTs, including the Part 101 CRT, consist of representatives from the affected Division, the regulated community and the public. An effort was also made to include a team member from outside of the affected area to provide a fresh perspective on the issues under review.

The Part 101 CRT's review focused on the effectiveness and timeliness of the various mechanisms set forth in the existing Part 101 enforcement process by the Division, including warning letters, notices of violations and various forms of compliance orders, and the opportunity for establishing some compliance assistance mechanisms for the regulated community.

The new Compliance Advisories replace warning letters and notices of violation and are intended to be issued at the time of the inspection where possible or shortly thereafter.

This new process is intended to reduce the time between the inspection and the facility's notification of possible compliance issues, including violations of the Act and the Regulations, thereby leading to more timely resolution of compliance issues and compliance with the requirements of the Act and the Regulations. In most cases, the issuance of a Compliance Advisory should precede the issuance of a compliance order or the filing of a civil enforcement action by the Department. However, the Commission recognizes that there will be instances where the Division will need to proceed directly to the issuance of a compliance order or the filing of a civil enforcement action. The amendments to Part 101 allow the Division to issue a compliance order or file a civil enforcement action without issuing a Compliance Advisory. No substantive changes were suggested or adopted regarding the issuance of compliance orders or the filing of civil enforcement actions by the Division.

The Compliance Advisory process also provides increased opportunities for the Division to provide more effective compliance assistance to the regulated community, both at the time of the inspection and after the issuance of a compliance order. In fact, the Compliance Advisory process includes provisions which allow the Division and the regulated community to agree at the time of the inspection to the actions that need to be taken and the time frames for compliance with the Act and the Regulations.

Providing the regulated community with earlier notice of possible compliance problems and more compliance assistance should promote the Division' s and the regulated community' s efforts to achieve full compliance with the requirements of the Hazardous Waste Act and its implementing regulations in a more timely, cooperative and efficient manner.

After the issuance of a compliance advisory the recipient should also be provided timely notice whenever the Division determines that there were no violations of state hazardous waste requirements or that compliance with some or all of the violations addressed in the Compliance Advisory have been achieved. In that regard, No Violation or No Further Action letters should be sent as soon as possible after the Division has made such determinations. In addition, a No Further Action letter should also contain a statement informing the person of the possibility of administrative or civil penalties for the violations of state hazardous waste requirements addressed in the Compliance Advisory and, where a decision on penalties has been made, the Division should indicate whether it will be seeking penalties for the violations addressed in the Compliance Advisory.

As part of the rule-making proceeding for the adoption of the amendments to Part 101, the Commission reviewed the Compliance Advisory form developed by the Division and a copy is attached hereto. The Division intends on using the form, or a similar document, in its implementation of the amendments to Part 101. The Commission believes that the form, and the information contained therein, is consistent with its intent in adopting the amendments to Part 101, including the distinction drawn by the form between regulatory "Deficiencies," "Potential Deficiencies" and "Concerns Noted." The Commission also recognizes that, if the Compliance Advisory is issued at the time of an inspection, the Division will request that the person sign the Compliance Advisory to acknowledge its contents and receipt. Such a signature, however, is not and is not to be construed as an admission on behalf of the person that any violations of state hazardous waste requirements have occurred. The attachment of the form is not intended to preclude the Division from making modifications to the form necessary for the implementation of the compliance advisory process as long as it is not contrary to the intent of the Commission in adopting the amendments to Part 101.

It should be noted that regardless of which compliance advisory or enforcement action is taken, the Division will continue to leave a copy of its notice of inspection with the facility.

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Statement of Basis and Purpose - Rule-making Hearing of November 19, 1996

Notes

6 CCR 1007-3-8.26
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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