6 CCR 1007-3-8.96 - Basis and Purpose

These amendments to 6 CCR 1007-3, Parts 267, Subpart Q are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Addition of Part 267 Subpart Q - Class B Firefighting Foam Containing PFAS

HB20-1119 amended C.R.S. 25-15-302 to require the Solid and Hazardous Waste Commission (SHWC) to establish a Certificate of Registration for any facility or fire department, or lessee subject to federal rules and regulations, that use or store Class B firefighting foam containing PFAS and to establish standards for capture and disposal of Class B firefighting foam containing PFAS. HB20-1119 also requires the SHWC to set penalties for not obtaining a Certificate of Registration or following the standards for capture and disposal.

Modification of Part 267 of the Colorado Hazardous Waste Regulations (6 CCCR 1007-3) is being amended at this time to add Subpart Q (Class B Firefighting Foam Containing PFAS). The new Subpart Q requires all persons that store or use Class B firefighting foam containing intentionally added perfluoroalkyl and/or polyfluoroalkyl substances or PFAS, to register and obtain a certificate from the Hazardous Materials and Waste Management Division. The regulations also require any person that uses the Class B firefighting foam containing intentionally added PFAS in testing firefighting foam fire systems, to capture the spent foam in containment systems and to store the spent foam in containers meeting the requirements, prior to off-site shipment for disposal. The regulations do not apply to the capture of Class B firefighting foam containing PFAS for persons using the foam in actual emergencies and/or fires nor do they establish requirements for persons using or storing Class B firefighting foams that do not contain PFAS.

Class B firefighting foams are used to put out fires involving Class B materials, which include gasoline, oil, and jet fuel. Class B foams can be categorized into two broad categories from a PFAS perspective: fluorinated foams that contain PFAS, like Aqueous Film Forming Foam (AFFF), and fluorine free foams. AFFF is usually created by combining foaming agents with fluorine surfactants. PFAS are the active ingredients in the fluorinated surfactants used in the foams and are typically contained in the foams up to 3% concentrations, or 300,000 parts per million. When mixed with water and discharged, the foam forms an aqueous film that quickly cuts off the oxygen to a flame, extinguishing the fire, and stopping the fire from relighting.

PFAS are a family of human-made chemicals with over 5,000 compounds that have been used for decades in products like food packaging, carpets, non-stick products, other household items, medical supplies, and firefighting foam due to their ability to resist heat, oil, stains, grease, and water. PFAS can be harmful to human health and the environment when released to the soil, surface water or groundwater. Health effects from PFAS may include pregnancy complications, developmental effects, and liver and kidney effects. Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonic acid (PFOS) are synthetic, eight carbon non-polymer organic compounds that are PFASs. These two chemicals along with anions, perfluorooctanoate and perfluorooctane sulfonate respectively, were recently added to the list of hazardous constituents in Appendix VIII to Part 261 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) due to their toxicity to humans at very low concentrations. For example, EPA currently has a lifetime health advisory concentration of no more than 70 parts per trillion of combined PFOA and PFOS for safe consumption of drinking water. Once released to the environment, PFAS are persistent, and can contaminate environmental media. Human exposure to PFAS through the ingestion of contaminated drinking water is of major concern, but exposure can also happen through dermal and inhalation routes. Class B firefighting foams containing PFAS is a leading source of PFAS contamination impacting Colorado communities.

While Class B firefighting foams containing PFAS are slowly being replaced with alternative products that do not contain the toxic compounds, many of these alternative products have not been completely tested and approved for fighting high hazard flammable liquid fires. Large inventories of the Class B firefighting foam containing PFAS still remain, and PFAS containing firefighting foams are still used routinely to extinguish these dangerous fires.

The regulations in the new Subpart Q to Part 267 of the Colorado Hazardous Waste Regulations is focused on identifying those facilities or fire departments that may store or use the Class B firefighting foams containing intentionally added PFAS. The regulations require a mandatory on-line registration program for such entities. The registration requires that basic information about the fire department or facility be provided to the Division along with information concerning the quantities and configurations of the storage of the Class B firefighting foams containing intentionally added PFAS. Once information is provided to the Division through the on-line registration, the Division will review the information and issue a Certificate of Registration. All persons using or storing Class B firefighting foam with PFAS must register and obtain a certificate from the Division by June 1, 2021, or six (6) months after they first store or use the Class B firefighting foam containing intentionally added PFAS.

Testing of most firefighting equipment or fire suppression systems no longer requires that the equipment or systems discharge Class B firefighting foam with PFAS. Alternate products or alternate means of testing the equipment or systems are now being used routinely that do not require actual firefighting foam containing PFAS to be used. However, a small number of entities must still discharge the foams containing PFAS during testing of their equipment or fire suppression systems. Testing of firefighting foam suppression systems is required at municipal airport facilities in hangers where airplanes are worked on. Testing of these firefighting foam suppression systems requires that the foam meet certain specifications based on the distribution and ratio of foaming agent and surfactants to water, and in large hangars, that the fire suppression foam system adequately provides coverage onto the hangar floor space in the event the system must discharge the foam to quickly extinguish a fire.

To address the required testing with Class B firefighting foam containing PFAS, Part 267, Subpart Q requires that any person using the foam to test with, capture the foam in containers or a containment system that will prevent the release of the foam to the environment. Containment systems used to capture the Class B firefighting foam containing intentionally added PFAS during testing must be adequately designed, constructed and operated to ensure discharges of the foam are collected. Class B firefighting foam containing intentionally added PFAS used in testing may be discharged directly to containers through manifold systems or piping to containers, or may also be discharged onto containment floors constructed of concrete or other synthetic materials. Containment systems constructed of concrete must be designed and constructed of man-made materials of sufficient strength and thickness to contain spent foam and liquids, be supported by an adequate foundation, be free of cracks and gaps and be sufficiently impervious to contain spent foams and liquids, and be sloped or otherwise designed to drain and remove liquids. All containment systems or collection systems made of piping manifolds and/or containers must have sufficient volume to collect 110% of the liquids and foams discharged during testing.

Piping manifold systems or containment systems used to capture Class B firefighting foam containing intentionally added PFAS during testing must be operated to prevent any splashing or spraying of the foams or liquids outside the system. They must also prevent precipitation from running onto or infiltrating the system. Containment systems constructed into the ground must have good integrity and not be leaking. Third party Professional Engineer certification verifying the integrity of containment systems constructed into the ground is required on an annual basis, or prior to discharging Class B firefighting foam containing intentionally added PFAS into them. Containment systems used to capture Class B firefighting foam containing PFAS cannot be used for long term storage of the spent foams and liquids. Class B firefighting foam containing PFAS must by promptly removed from containment systems and placed in containers within 24 hours of completing testing or at least once every day.

Spent Class B firefighting foam with PFAS generated during testing must be shipped off-site for treatment and disposal as soon as possible. However, waste foam may be stored on-site in containers prior to disposal provided that the storage is necessary to facilitate, including to accumulate quantities sufficient to facilitate, proper off-site treatment and disposal. Spent Class B firefighting foam with PFAS cannot be stored longer than 120 days on-site unless a variance is granted by the Division. The Division will approve variances for storage of the foam on-site longer than 120 days based on the available treatment and/or disposal capacities. Spent Class B firefighting foam containing PFAS may only be stored in DOT approved containers on-site that are labelled with content and accumulation start date, kept closed except when adding wastes, and stored in stable configurations on flat surfaces with aisle space to facilitate their inspection and movement in the event of a leak or other emergency. The area containers of spent Class B firefighting foam containing PFAS are stored on must also be concrete or lined, and bermed or otherwise designed to prevent run-on or run-off of precipitation. Containers must be inspected weekly to identify leaks or other deteriorations that may impact their integrity. Any problems that are identified on inspections must be remediated within 24 hours. The inspections must be recorded and retained for three years.

Compliance with the registration and certificate program for Class B firefighting foam containing intentionally added PFAS, the requirements for capture of any foam containing intentionally added PFAS discharged during testing, or the proper storage of any spent foam and/or liquids prior to off-site treatment and disposal is mandatory, not voluntary. Therefore, to ensure that these rules for persons using or storing Class B firefighting foam containing intentionally added PFAS are effective and efficient, the proposed amendments establish mandatory requirements and penalties for non-compliance. Persons who violate any of the requirements of Part 267, Subpart Q shall be subject to enforcement, including assessment of civil or administrative penalties, as provided in §§ 25-15-308(2) and 25-15-309, C.R.S. In general the Division will impose up to a $2000 fine every 6 month for facilities using or storing Class B firefighting foam with PFAS that fail to obtain a Certificate of Registration from the Division and impose up to $15,000 fine per occurrence for facilities that test with Class B firefighting foam with PFAS and do not comply with standards for capture and/or on-site storage prior to off-site treatment and disposal.

These amendments are more stringent than the federal regulations, which do not contain these requirements.

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 more stringent rule. The Commission finds that this rule is necessary to protect public health and the environment.

Statement of Basis and Purpose Rulemaking Hearing of May 18, 2021

Notes

6 CCR 1007-3-8.96
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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