6 CCR 1007-3-8.38 - Basis and Purpose

These amendments to 6 CCR 1007-3, Part 100 are adopted pursuant to the authority granted to the Hazardous Waste Commission under § 25-15-302(2), C.R.S.

Amendments to Part 100 to create a streamlined permit authorizing corrective action or closure at non-permitted facilities

These amendments are being adopted as part of a streamlining initiative that the Department is developing. The amendments provide a simplified means for the Department to oversee corrective actions and closures at unpermitted facilities subject to the requirements of Part 264 or Part 265.

In recent years, there has been a significant increase in the number of facilities that have neither a permit nor interim status under Part 100, but that require corrective action or closure due to releases of hazardous waste into the environment. Technically, these facilities have illegally disposed of hazardous waste without a permit. Without the new mechanism proposed in this rule, the Department must either issue a unilateral order or negotiate a consent order to provide an enforceable mechanism for oversight of corrective action or closure at these unpermitted facilities. Either process can be very time-consuming, and both may carry a certain stigma because of the statutory requirement that orders cite alleged violations of the Colorado Hazardous Waste Act, and do so "with particularity." Section 25-15-308(2)(a), C.R.S. The new mechanism avoids this stigma, and substantially reduces the transaction costs - for both the Department and the facility - of providing an enforceable oversight mechanism.

The rule provides the opportunity for a facility to conduct corrective action or closure under this mechanism for an entire facility or a portion thereof. The application allows for submittal of an integrated Corrective Action Plan similar to plans covered by the Voluntary Cleanup and Redevelopment Act or a Corrective Action Plan that includes phased investigation and cleanup activities.

In the event a facility disputes elements of the Department's decision on Corrective Action Plan under this mechanism, the rule expressly states that the decision may be appealed under section 25-15-305, C.R.S. Any subsequent determinations that the Department makes on the Corrective Action Plan may also be appealed under the same section.

The new rule also provides that corrective action conducted under this provision is subject to document review and activity fees under § 100.32. Currently, the Department does not recover costs for time spent reviewing documents, such as investigation plans, that may be submitted prior to a corrective action or closure order being in place. The Department frequently spends substantial time reviewing such documents prior to having an order in place. Because § 100.32(a)(1)(vii) authorizes the Department to obtain reimbursement for "reviewing, evaluating and responding to any and all documents submitted... in connection with... permit... corrective action," the new rule will enable the Department to recover its costs associated with any such documents, as well as other documents submitted in connection with corrective action under this new rule.

The rule also allows the Department to designate a corrective action management unit or temporary unit under this new provision, so long as it complies with the public notice requirements of § 100.21(e). The ability to designate a CAMU or TU in this mechanism provides expanded opportunities for streamlined cleanups.

The Department is committed to a comprehensive review of its approach to oversight of hazardous waste cleanups. The department expects to propose additional regulatory streamlining proposals. EPA recently promulgated a rule offering alternatives to the existing requirement for a post-closure permit for regulated units that close with waste in place, and another rule streamlining cleanup requirements for contaminated media. The Department is reviewing these rules and intends to propose similar streamlining efforts. Generally speaking, the amendments to Part 100 have been developed to complement these future changes, although some modifications may be necessary.

Statement of Basis and Purpose - Rulemaking Hearing of July 20, 1999


6 CCR 1007-3-8.38
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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