6 CCR 1007-3-8.61 - Basis and Purpose

These amendments to 6 CCR 1007-3, Parts 260, 261, 262, 263, 264, 265, 279, 100 and 6 are made pursuant to the authority granted to the Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Amendments to Hazardous Waste Fees

After three years under the present hazardous waste fee structure, the Department has determined that an increase in fees is necessary beginning in State Fiscal Year 2007, which begins on July 1, 2006. Legislation passed by the General Assembly in 2000 (SB 00-177) provided some general directives for implementation of the hazardous waste regulatory program, including guidance for future fee adjustments by the Hazardous Waste Commission.

The Department is authorized by U.S. EPA to operate the hazardous waste regulatory program in Colorado in lieu of the federal government. One of the key criteria evaluated by U.S. EPA in authorizing the state program is resources, both in terms of funding and in terms of qualified personnel. Without an increase in fee revenues, the Department has determined that it will not be able to operate an adequate program beginning in State Fiscal Year 2007.

The purpose of these amendments is to implement a balanced increase in hazardous waste program fees that the Department expects will provide adequate funding for the hazardous waste program for a period of approximately three years. This fee structure is expected to result in annual fees from TSD facilities that recoup approximately 29.7% of the Department's costs associated with TSD facilities, which complies with the 30% limit established by SB 00-177. Also, the annual fees from generator facilities is expected to recoup approximately 49.7% of the Department's costs associated with generators, which complies with the 50% limit established by SB 00-177. The adjusted fees are expected to increase the revenue from fees to the hazardous waste program by approximately 29% in state fiscal year 2007. When the funding provided by U.S. EPA is considered, the fee changes are expected to increase funds available to operate the hazardous waste program by approximately 14%.

These amendments incorporate the generator fees that were established by SB 00-177 into regulation.

The amendments being adopted at this time include the following:

a) General: Numerous non-substantive clarifications and corrections are being incorporated into Parts 261, 262, and Part 100. Substantive changes are explained in more detail below.

b) Amendment of Part 261: Section 261.5 of Part 261 is being amended to clarify that the Conditionally Exempt Small Quantity Generators (CESQGs) that are newly required to pay fees (see below for section 262.13) are also subject to the notification requirements of Part 99 (but not the notification fee being added to Section 100.33, explained below). These amendments are more stringent than the federal regulations, which do not require conditionally exempt generators to notify. The Commission has evaluated the information presented at the rulemaking hearing, as well as the information in the Statement of Basis and Purpose. The Commission considers this information sufficient to justify adopting the proposed rule. The Commission finds that this rule is necessary to protect public health and the environment.

c) Amendment of Part 262: Section 262.13 of Part 262 is being amended to:

1) Add a fee for CESQGs that generate certain waste codes. These waste codes (F001, F002, F005, and F005) represent the halogenated and non-halogenated solvents that are very high-priority wastes for the Division for several reasons:

a) they are very common contaminants at our clean-up sites and are very mobile in the environment - they can quickly degrade large volumes of ground water;

b) many are Class A carcinogens and are dangerous to human health; and

c) they are commonly generated by business sectors that have poor compliance records. This fee is justified because of the increasing amount of time Division staff is investing in overseeing clean up of these wastes and ensuring compliant management of them at CESQGs;

2) Raise the fees for Small Quantity Generators (SQGs) from $390/year to $480/year; and

3) Raise the fees for Large Quantity Generators (LQGs) from $2,470/year to $3,050/year.

d) Amendment of Part 100.3:

1) Section 100.31(b)(1) is being amended to clarify that operating fees defined by waste volume will apply to all types of waste being treated or disposed at a facility in permitted hazardous waste management units. The full volume fee will apply to all hazardous wastes being treated or disposed at facilities in hazardous waste management units. A lesser fee ($5.00/ton) will apply to all non-hazardous wastes being treated or disposed in these units at only Class I facilities, except that no volume fee will apply to radioactive materials regulated by a radioactive materials license issued by the Department.

The Department is making this change because of changes beginning to occur in the waste management industry where, in order to remain competitive, facilities are expanding the types of services they provide specifically to non-hazardous waste clients. Unfortunately, at treatment and disposal facilities, the complexity of the operations and the level of oversight required by Department staff does not decrease when the facility manages non-hazardous waste. In fact, these facilities are busier processing more waste and our level of oversight increases as overall waste volume increases. It is important to note that most of the non-hazardous wastes handled by these facilities is relatively toxic and the generators are using these higher-cost facilities because of the risk and liability protection they provide.

The amendments are carefully designed such that the volume fee would not apply to storage of non-hazardous wastes at these facilities.

2) Section 100.31(b)(5) is being amended to clarify that up to five Solid Waste Management Units (SWMUs) can be included in one Environmental Covenant without increasing the $1,000/year fee.

3) The Annual Fee Table at the end of Section 100.31 is being amended to include an overall 35% increase in TSD fees. This applies to both the volume fees and the minimum fees for all classes of facilities.

4) The Annual Fee Table at the end of Section 100.31 is also being amended to include a 25% increase in Post-Closure fees, from $4,000/year/unit to $5,000/year/unit.

5) Section 100.32(a) is being amended to clarify that document review and activity fees will apply to Corrective Action Plans, Remedial Action Plans, and Environmental Covenants. All three of these document types are now extensively utilized by regulated entities and all are relatively new.

6) Section 100.32(b) is being amended to change the hourly rate for the document review and activity fee from $115/hour to $135/hour. The Department believes this increase is justified for three reasons:

a. It is a "loaded" fee that recoups the cost of not only the technical staff performing the review, but also the proportional cost of direct management, direct administrative support, and direct IT support. It does not extend to Departmental overhead;

b. The Division has documented that the "loaded" cost is actually $136/hour for 2005, slightly more than the proposed $135/hour; and

c. The document review and activity fee was originally implemented in 1991 at a "loaded" rate of $85/hour. Inflating $85/hour through 2005 results in $139/hour, again slightly more than the proposed $135/hour.

7) The Document Review and Activity Fee Table at the end of Section 100.32 is being amended by increasing the ceiling fees for Class III facilities from $17,000 to $30,000 for the first unit and from $8,500 to $15,000 for every unit thereafter. The reason for this proposed change is that Class III facilities include storage facilities and some of the storage permits in Colorado are fairly lengthy and sophisticated. As these permits come up for renewal, it has been very difficult for Department staff to stay within the old ceiling fees and deliver a quality product.

8) Section 100.33 is being added to the regulations. This section creates a new $100 onetime fee for certain types of hazardous waste notifications:

a. Notifications where a facility is lowering its generator status; and

b. New notifications for SQGs and LQGs, but not for CESQGs.

This fee is intended to be a cost recovery fee for Department staff time spent processing the new or revised notifications. It is similar to processing fees charged by other Departmental programs.

Uniform Hazardous Waste Manifest Rule

These amendments revise Parts 260, 261, 262, 263, 264 and 265 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) to correspond to the federal amendments to the Uniform Hazardous Waste Manifest regulations promulgated by the Environmental Protection Agency (EPA) and published in the Federal Register on March 4, 2005 (70 FR 10776-10825), and as amended on June 16, 2005 (70 FR 35034-35041).

These amendments provide state equivalency with the federal provisions that revised the Uniform Hazardous Waste Manifest regulations and the manifest and continuation sheet forms used to track hazardous waste from a generator's site to the site of its disposition. These revisions standardize the content and appearance of the manifest form (EPA Form 8700-22) and continuation sheet (EPA Form 8700-22A). These amendments also make these forms available from a greater number of sources and adopt new procedures for tracking certain types of waste shipments with the manifest. These shipments include hazardous wastes that destination facilities reject, waste consisting of residues from non-empty hazardous waste containers, and wastes entering or leaving the United States.

The revisions to the federal manifest requirements lie under joint RCRA and US Department of Transportation Hazmat authority. Hazmat law requires consistency in hazardous materials shipping papers, such as manifests. Consequently, States are required to adopt state analogs to the revised manifest form and associated requirements of the federal rule, regardless of whether the Federal changes could be considered more or less stringent than the existing requirements. The Federal rule will be implemented uniformly on the delayed compliance date of September 5, 2006, regardless of the RCRA State authorization status of individual States. During this transition period, the existing manifest forms and requirements will continue to be implemented.

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations that were published in the Federal Register at 70 FR 10776-10825, March 4, 2005, and as amended at 70 FR 35034-35041, June 16, 2005.

Nonwastewaters from Dyes and Pigments

These amendments add hazardous nonwastewaters generated from the production of certain dyes, pigments, and food, drug and cosmetic colorants to the list of RCRA hazardous wastes from specific sources in 6 CCR 1007-3, § 261.32, with the hazardous waste code number K181.

The K181 listing establishes annual mass loading levels for seven constituents of concern (aniline, o-anisidine, 4-chloroaniline, p-cresidine, 2,4-dimethylaniline, 1,2-phenylenediamine, and 1,3-phenylenediamine). Wastes that exceed the limits must be regulated as hazardous waste, unless they are disposed in certain landfills or treated by certain combustion units. These amendments also establish land disposal restrictions (LDR) standards for the newly listed waste.

The amendments being adopted at this time include:

1) Revising the table at § 261.32 to add the K181 listing:

K181 - Nonwastewaters from the production of dyes and/or pigments (including nonwastewaters commingled at the point of generation with nonwastewaters from other processes) that, at the point of generation, contain mass loadings of any of the constituents identified in paragraph (c) of this section that are equal to or greater than the corresponding paragraph (c) levels, as determined on a calendar year basis. These wastes will not be hazardous if the nonwastewaters are:

(i) disposed in a Subtitle D landfill unit subject to the design criteria in § 258.40,

(ii) disposed in a Subtitle C landfill unit subject to either § 264.301 or § 265.301,

(iii) disposed in other Subtitle D landfill units that meet the design criteria in § 258.40, § 264.301, or § 265.301, or

(iv) treated in a combustion unit that is permitted under Subtitle C, or an onsite combustion unit that is permitted under the Clean Air Act. For the purposes of this listing, dyes and/or pigments production is defined in paragraph (b)(1) of this section. Paragraph (d) of this section describes the process for demonstrating that a facility's nonwastewaters are not K181. This listing does not apply to wastes that are otherwise identified as hazardous under § § 261.21-261.24 and 261.31-261.33 at the point of generation. Also, the listing does not apply to wastes generated before any annual mass loading limit is met.

2) Adding specific definitions for the K181 listing at § 261.32(b) of the regulations;

3) Adding a table with the listing levels for the seven constituents of concern in K181 wastes at § 261.32(c) of the regulations;

4) Adding procedures for demonstrating that dyes and/or pigment nonwastewaters are not K181 waste at § 261.32(d) of the regulations;

5) Adding the seven constituents of concern that are the basis for the K181 waste listing to Appendix VII of Part 261;

6) Adding the five constituents of concern (o-anisidine, p-cresidine, 2,4-dimethylaniline, 1,2-phenylenediamine, and 1,3-phenylenediamine) for the K181 listing that were not already listed in Appendix VIII of Part 261 to Part 261, Appendix VIII;

7) Revising § 261.4(b)(15) of the regulations to provide a temporary, conditional exemption from the definition of hazardous waste for leachate and gas condensate generated at landfills used for the disposal of K181 waste prior to the effective date of the K181 listing;

8) Establishing LDR treatment standards for the newly listed K181 waste in § 268.20 and § 268.40 of the regulations;

9) Revising the listing for F039 in the table of LDR treatment standards at § 268.40 to include those K181 constituents that are not already identified as regulated constituents on F039; and

10) Establishing universal treatment standards (UTS) levels in the table at § 268.48 of the regulations for o-anisidine, p-cresidine, 2,4-dimethylaniline, and 1,3-phenylenediamine. (Note: UTS levels already exist in the table at § 268.48 for aniline and 4-chloroaniline. UTS levels were not set for the remaining K181 constituent of concern, 1,2-phenylenediamine, since it does not have numerical treatment standards).

These amendments are more stringent than the existing state requirements. In order to maintain its authorization to operate its state program in lieu of the U.S. Environmental Protection Agency operating a federal program, Colorado must adopt state requirements equivalent to and consistent with the overlying federal requirements. These amendments provide state equivalency with the regulatory requirements of the Environmental Protection Agency.

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations that were published in the Federal Register at 70 FR 9138-9180, February 24, 2005, and as amended at 70 FR 35032-35034, June 16, 2005.

Correction of Typographical Errors and Inadvertent Omissions

These amendments correct typographical errors and inadvertent omissions that exist in § 261.21(a)(3), Appendix VII to Part 261, Appendix VIII to Part 261, § 264.52(b), § 265.52(b), § 265.302(b), Appendix VI to Part 265, the table of treatment standards for hazardous waste at § 268.40, and § 279.52(b)(2)(ii) of the current regulations, and provide state equivalency with the applicable federal requirements.

Amendment of § 6.04

Section 6.04 is being amended by revising paragraph (a) to reflect the annual Commission fees to be assessed for fiscal year 2006-2007.

Statement of Basis and Purpose - Rulemaking Hearing of September 19, 2006

Notes

6 CCR 1007-3-8.61

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