6 CCR 1007-3-8.42 - Basis and Purpose

These amendments to 6 CCR 1007-3, Parts 260, 261, 264, 265, 268, 99 and 100 are made pursuant to the authority granted to the Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Hazardous Remediation Waste Management Requirements (HWIR-Media)

These amendments streamline the permitting process for treatment, storage and disposal of remediation waste managed at cleanup sites. These new requirements will make it faster and easier to obtain permits for treating, storing and disposing of remediation wastes, and will provide that obtaining these permits will not subject the owner and/or operator to facility-wide corrective action. These amendments also create a new kind of unit called a "staging pile" that allows more flexibility in storing remediation waste during cleanup. These amendments also provide an exclusion from RCRA Subtitle C requirements in § 261.4 for dredged materials managed under appropriate Clean Water Act or Marine Protection, Research and Sanctuaries Act permits.

The major amendments being adopted at this time include:

1) Adding a definition of "staging pile" in § 260.10.A staging pile is defined as an accumulation of solid, non-flowing remediation waste (as defined in § 260.10) that is not a containment building and that is used only during remedial operations for temporary storage at a facility. Staging piles must be designated by the Director according to the requirements of § 264.554 of these regulations;
2) Adding the dredged material exclusion at paragraph (g) of § 261.4; and
3) Establishing a new § 100.27: Remedial Action Plans (RAPs).A Remedial Action Plan (RAP) is defined as a special form of RCRA permit that a facility owner or operator may obtain under § 100.27 of these regulations, to authorize the treatment, storage or disposal of hazardous remediation waste (as defined in § 260.10 of these regulations) at a remediation waste management site.

Under § 100.27(f)(1)(iv)(B) of the state regulations, RAPs are subject to the expanded public participation requirements in § § 100.11(f), 100.506(a)(1)(vii) and 100.506(f). In adopting state analogs to the federal RCRA expanded public participation rule (60 FR 63417-63434, December 11, 1995) the Hazardous Waste Commission adopted more stringent requirements than the provisions of 40 CFR § § 124.31, 124.32 and 124.33 regarding public participation. (Please see the Commission's Statement of Basis and Purpose for the rule-making hearing of April 16, 1996 (§ 8.23) for additional information). For this reason, § 100.27(f)(1)(iv)(B) of the state regulations is more stringent than the corresponding federal provision of 40 CFR § 270.30(d)(2).

The federal rule provides for administrative appeals of decisions to approve or deny RAP applications to EPA's Environmental Appeals Board under 40 CFR § 124.19. The state is not adopting this portion of the rule. Rather, administrative appeals of RAP applications in Colorado with be handled in accordance with the appeal procedures of 6 CCR 1007-3, Part 100.514.

The HWIR-Media provisions are less stringent than existing state standards, and Colorado is not required to adopt these provisions. The Department believes that adopting these hazardous remediation waste (HWIR-Media) management requirements will increase the pace and efficiency of hazardous waste cleanups in Colorado.

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations that were published in the Federal Register at 63 FR 65874-65947, November 30, 1998.

LDR Phase IV - Hazardous Soils Treatment Standards and Exclusions

These amendments establish land disposal treatment standards specific to contaminated soil. Contaminated soil is subject to the land disposal restrictions, generally, when it contains a listed hazardous waste or when it exhibits a characteristic of hazardous waste. Prior to these amendments, contaminated soil subject to LDRs was subject to the same land disposal restriction treatment standards that apply to any other hazardous waste: soil contaminated by listed hazardous waste was subject to the standards that apply to those listed wastes and soil that exhibited a characteristic of hazardous waste was subject to the same standards that apply to the characteristic waste. These amendments establish a new treatability group: "contaminated soils", and establishes land disposal restriction treatment standards specifically tailored to that treatability group. Under these new amendments, generators of contaminated soil have the option of complying either with the existing treatment standards for hazardous waste (i.e., the universal treatment standards), or with the new soil treatment standards being promulgated at this time.

The soil treatment standards of new § 268.49 require that all hazardous contaminated soil, including soil contaminated by listed hazardous waste, be treated for each underlying hazardous constituent reasonably expected to be present when such constituents are initially found at concentrations greater than ten times the universal treatment standard. This treatment is required both for soil contaminated by listed hazardous waste and soil that exhibits (or exhibited) a characteristic of hazardous waste. Contaminated soils will need to meet LDR treatment levels of ten times the UTS standards or achieve a 90 percent reduction in the levels of hazardous constituents present in the soil. The soil treatment standards allow this extra degree of flexibility to encourage more clean up contaminated soils rather than depending on remedies that leave untreated contaminated soils in place.

This rule also establishes a risk-based variance process in § 268.44 of the regulations for contaminated soils that might not otherwise meet the soil treatment standards. This site-specific variance from the technology-based soil treatment standards can be used when treatment to concentrations of hazardous constituents greater (i.e., higher) than those specified in the soil treatment standards minimizes short- and long-term threats to human health and the environment. In this way, on a case-by-case basis, risk-based LDR treatment standards approved through a variance process could supersede the technology-based soil treatment standards. This risk-based variance is only for contaminated soils, and does not apply to other environmental media and remediation wastes.

The amendments being adopted at this time include:

1) Adding a definition of soil at paragraph (k) of § 268.2;
2) Revising § 268.7 to include the record keeping and reporting requirements that apply to contaminated soil;
3) Establishing a site-specific variance from the technology-based soil treatment standards at § 268.44(h)(3) and (h)(4); and
4) Adding alternative LDR treatment standards for contaminated soil at § 268.49.

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations that were published in the Federal Register at 63 FR 28556-28753, May 26, 1998, and as amended at 64 FR 25408-25417, May 11, 1999.

Revision of § 268.44

These revisions to § 268.44 finalize clarifying amendments to the rule authorizing treatment variances from the national LDR treatment standards, adopting EPA's interpretation that a treatment variance may be granted when treatment of any given waste to the level or by the method specified in the regulations is not appropriate, under either technical or environmental circumstances. Section 268.44 contains two types of variances. The provisions at § 268.44(a)-(g) address general treatment standard variances. Because these variances could result in nationally applicable standards for a new waste treatability group, the authority for such variances remains with EPA and is not delegable to Colorado. The provisions of 268.44(h)-(m), on the other hand, address site-specific variances, and the authority to review and approve this type of treatment variance can be delegated to Colorado by EPA.

These amendments to § 268.44 include the revisions that were published in the Federal Register on December 5, 1997 (62 FR 64504-64509) as well as the revisions from the hazardous soils treatment standards and exclusions portion of the LDR Phase IV final rule that was published in the Federal Register on May 26, 1998 (63 FR 28556-28753).

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations that were published in the Federal Register at 62 FR 64504-64509, December 5, 1997, and as amended at 63 FR 28556-28753, May 26, 1998.

Revision of Part 99

The Part 99 Notification requirements are being amended at this time to update the reference to EPA Form 8700-12. The title of the form was revised from "Notification of Hazardous Waste Activity" to "Notification of Regulated Waste Activity" when the Part 279 standards for the management of used oil were added to the hazardous waste regulations. The references to EPA Form 8700-12 in Part 99 are being revised at this time to reflect this change.

Statement of Basis and Purpose - Rulemaking Hearing of February 15, 2000

Notes

6 CCR 1007-3-8.42
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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