6 CCR 1007-3-8.85 - Basis and Purpose

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

These amendments modify sections 100.10, and 100.26 of Part 100 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) to clarify that Corrective Action Plans (CAPs) are permits and can serve in place of traditional RCRA permits for corrective action and closure activities.

Corrective Action Plan (CAP) Amendments - Clarifying Corrective Action Plans are Permits

In 1999, the Commission adopted § 100.26 to the Regulations establishing the Corrective Action Plan (CAP) as an alternative to a formal RCRA permit. At that time, the Commission expressly stated its intent was to "create a streamlined permit authorizing corrective action or closure at non-permitted facilities." Statement of Basis and Purpose for Rulemaking Hearing of April 20, 1999, 6 CCR 1007-3 §8.38. Nonetheless, confusion evolved within the regulated community regarding whether a CAP is in fact a permit subject to Department enforcement authority pursuant to § 25-15-308, C.R.S. The following amendments clarify CAPS are Permits:

1) Addition of paragraph (e) to § 100.10 (Scope of the RCRA Permit Requirement). Section 100.10 of the regulations identifies enforceable mechanisms an operator of a facility and the Department can use to either close or conduct post-closure care for a hazardous waste management unit in lieu of a formal RCRA permit. Paragraph (e) specifies CAPS are included as an alternative to a formal RCRA permit. Pursuant to § 100.26, CAPS provide operators with a streamlined process to obtain an enforceable mechanism governing remedial activities. The CAP provisions are far less onerous compared to the process for obtaining a formal RCRA permit outlined in the remainder of Part 100.
2) Amendment of paragraph (a) of § 100.26 (Corrective Action Plan). The amendment to § 100.26 explicitly states an approved CAP serves as a permit for a facility engaging in corrective action activities. In a number of instances, facility operators were not aware of this distinction, and mistakenly perceived activities pursuant to CAPs as "voluntary" in nature. Despite this misperception, the Department consistently requires facilities to complete CAP obligations, and on multiple occasions was forced to utilize significant state resources pursuing formal enforcement actions to gain CAP compliance. The added language clarifies CAPS are formal permits and eliminates the notion that activities specified in CAPS are voluntary.

Statement of Basis and Purpose Rulemaking Hearing of May 17, 2016

Notes

6 CCR 1007-3-8.85
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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