6 CCR 1007-3-8.40 - Basis and Purpose

These amendments to 6 CCR 1007-3, Parts 261, 262, 264, 265, 266, 268 and 100 are made pursuant to the authority granted to the Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Standards Applicable to Owners and Operators of Closed and Closing Hazardous Waste Management Facilities: Post-Closure Permit Requirement and Closure Process

In an effort to remove impediments to cleanup at hazardous waste facilities, the Hazardous Waste Commission is promulgating revisions to the closure and post-closure care regulations to coordinate the implementation of RCRA closure, post-closure care, and corrective action requirements.

These amendments create an optional, new procedural mechanism for imposing requirements on units or facilities that closed without obtaining a permit. These amendments allow the Department to issue a post-closure permit to a facility or to impose the same regulatory requirements in an enforceable document issued under an alternate non-permit authority in lieu of a post-closure permit. Facilities that receive enforceable documents (as defined at § 100.10(d) of the regulations) in lieu of post-closure permits must meet the same substantive requirements that apply to units receiving post-closure permits.

As outlined in § 265.121 of the regulations, facilities that obtain enforceable documents in lieu of post-closure permits will have to:

(1) submit information about the facility as detailed in §100.41(b)(14);
(2) conduct facility-wide corrective action for solid waste management units (SWMUs) as required under § 264.101; and
(3) comply with the Part 264 Groundwater monitoring requirements of § § 264.91 through 264.100. Facilities subject to the new § 265.121 requirements will also remain subject to all other applicable interim status requirements, including requirements for financial assurance.

These requirements assure that facilities addressed under alternate authorities are subject to the same level of environmental protection as facilities regulated under post-closure permits, while allowing the Department the flexibility to replace the closure and groundwater requirements at certain hazardous waste units with similar, site-specific requirements developed through the corrective action process.

This rule provides the Department with discretion to prescribe alternative groundwater monitoring, closure and post-closure, and financial responsibility standards at both operating and closed facilities, when the Department finds that a release of hazardous waste or hazardous constituents has occurred, and both a regulated unit and one or more SWMUs (or areas of concern) are likely to have contributed to the release. These provisions are promulgated in this rule in § § 264.90(f), 264.110(c), 265.90(f), 265.110(d), and 266.10(d) of the regulations.

This rule also adds public participation requirements for enforceable documents at § 265.121 of the regulations. These new public participation requirements require the Department to provide public notice and an opportunity to comment:

(1) When the Department becomes involved in a remediation at the facility as a regulatory or enforcement matter;
(2) on the proposed remedy and the assumptions upon which the remedy is based; and
(3) prior to making the final decision that remedial action is complete at the facility.

The Commission believes that this rule will facilitate the implementation of RCRA post-closure care and corrective action requirements by expanding the regulatory options available to the Department to address environmental needs at facilities undergoing post-closure care. This rule will also allow the Department to address certain hazardous waste units under the corrective action process rather than closure, thus removing impediments to cleanup that have been encountered where two similarly situated units have been subject to two different regulatory requirements.

These amendments correspond to the EPA final rule federal regulations that were published in the Federal Register on October 22, 1998 (63 FR 56710-56735). Since none of the provisions addressed by this rule make the federal regulations more stringent, Colorado is not required to adopt state analogs to this rule.

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations published in the Federal Register at 63 FR 56710-56735, October 22, 1998.

Land Disposal Restriction Phase IV - Treatment Standards for Metal Wastes and Mineral Processing Wastes

These amendments correspond to and provide state equivalency with specific portions of the applicable federal LDR Phase IV provisions that were published in the Federal Register on May 26, 1998 (63 FR 28556-28752). With the exception of the amendments that clarify certain portions of the land disposal restrictions and correct typographical errors, Colorado is only adopting state analogs to the portions of the federal rule that are not optional and that the state is required to adopt. Colorado is not adopting state analogs to the federal LDR Phase IV provisions concerning hazardous soils treatment standards and exclusions; mineral processing secondary materials exclusion; Bevill exclusion revisions; or the exclusion of recycled wood preserving wastewaters.

These amendments add waste specific prohibitions for toxicity characteristic metal wastes at § 268.34 of the regulations. These amendments also revise the tables at § § 268.40 and 268.48 by revising the Universal Treatment Standards (UTS) levels for ten (10) metal constituents in nonwastewater forms of hazardous wastes. The 10 metal constituents include antimony, barium, beryllium, cadmium, chromium, lead, nickel, selenium, silver, and thallium. These new treatment standards will replace the existing UTS values. These amendments also adjust the treatment standards for vanadium in P119 and P120 nonwastewaters, as well as zinc in K061 nonwastewaters.

These amendments also apply Universal Treatment Standards for the first time to 8 toxicity characteristic (TC) metal wastes: arsenic (D004), barium (D005), cadmium (D006), chromium (D007), lead (D008), mercury (D009), selenium (D010), and silver (D011). The UTS apply to both wastewater and nonwastewater forms of the wastes (except for TC arsenic wastes, for which the UTS apply to wastewater forms only), and to both organic and metal underlying hazardous constituents in them. The Universal Treatment Standards (UTS) are based upon the latest performance data from the Best Demonstrated Available Technologies (BDAT) for treating these, or similar, wastes. These treatment standards will apply to the entire universe of metal-bearing characteristic hazardous wastes, including those wastes that fail the toxicity characteristic for metals and all other characteristic wastes that have metals present as underlying hazardous constituents.

In addition, these amendments correct typographical errors in and make clarifying changes to certain portions of the Part 268 land disposal restrictions. These amendments include the improvements and corrections that are discussed in pages 28622 and 28623 of the May 26, 1998 LDR Phase IV rule, as well as additional corrections and clarifications that were part of subsequent final rules published in the Federal Register on September 4, 1998, September 24, 1998, and May 11, 1999.

These amendments and corrections of typographical errors include:

1) Revising paragraph (a)(2)(i) of § 261.3;
2) Correcting the cite reference in paragraph (d)(4) of § 262.34 from "268.7(a)(4)" to "268.7(a)(5)";
3) Revising paragraphs (a)(2)(i) and (a)(2)(iii) of § 268.4 to delete the references to § 268.8;
4) Adding clarifying language to the tables at § 268.7(a) and (b);
5) Correcting the cite references in paragraphs (d)(2) and (d)(2)(i) of § 268.9 from "268.7(b)(5)" and "268.7(b)(5)(iv)' to "268.7(b)(4)" and "268.7(b)(4)(iv)";
6) Removing the California List Requirements in § 268.42(a)(1) and (a)(2); and removing the de minimis provision of paragraph § 268.42(a)(3);
7) Revising paragraphs (3) and (4) of § 268.45(d) to remove the outdated cross references to the treatment standards that were once found at § 268.42 and § 268.43;
8) Correcting typographical errors in the table at § 268.40;
9) Revising the table in paragraph (a) of § 268.48 to delete the entries for A2213, Bendiocarb phenol, Diethylene glycol, dicarbamate, Dimetilan, Formparanate, Isolan, o-Phenylenediamine, and Tirpate;
10) Revising paragraph (e) of § 268.50 to delete the erroneous references to § § 268.41, 268.42, 268.43, and 268.32;
11) Amending Table 1 in Appendix VII to Part 268 by removing the entries for waste code F033; revising the second entry for waste codes F032 and F034; revising the first entry for waste code K088; revising the entries for D003-D011; and adding two entries for waste code F035;
12) Revising Table 2 in Appendix VII to Part 268 by revising entry number 9 and adding entries 12 and 13; and
13) Revising the title of Appendix VIII to Part 268 and adding in alpha numeric order the entry "NA".

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations published in the Federal Register at 63 FR 28556-28752, May 26, 1998; at 63 FR 47410-47418, September 4, 1998; at 63 FR 51254-51267, September 24, 1998; and at 64 FR 25408-25417, May 11, 1999.

Statement of Basis and Purpose - Rulemaking Hearing of October 19, 1999

Notes

6 CCR 1007-3-8.40
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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