DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Solid and Hazardous Waste Commission/Hazardous Materials and Waste Management Division

6 CCR 1007-3

hazardous waste

Amendment of § 265.31: Requirements for maintenance and operation of hazardous waste facilities.

1) Section 265.31 is amended by revising paragraph (a) to read as follows: 

§ 265.31  Maintenance and operation of facility.

(a)  Facilities must be maintained and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or water which could threaten human health or the environment. If the Department determines that the facility has not been maintained and operated in a manner to minimize the possibility of a release of hazardous waste or hazardous waste constituents that could threaten human health or the environment, the Department may require the owner or operator of the facility to conduct sampling, monitoring, testing, analysis and reporting sufficient to ascertain the nature and extent of the potential hazard posed by any release(s).  If a release is confirmed, consistent with § 265.5, the Department may require the owner or operator of the facility to remediate the release. 

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2) Add Section 8.66 {Statement of Basis and Purpose for the Rulemaking Hearing of February 19, 2008} to Part 8 of the Regulations as follows:

Statement of Basis and Purpose
Rulemaking Hearing of February 19, 2008

8.66 	Basis and Purpose.

This amendment to 6 CCR 1007-3, Part 265 is made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Amendment of § 265.31: Requirements for maintenance and operation of hazardous waste facilities.

Section 265.31 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) is being amended at this time to require all hazardous waste facilities that fail to operate and maintain their facilities in manner to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or water which could threaten human health or the environment to implement sampling or other testing to look for and characterize any release of hazardous waste or hazardous constituents to the environment when requested by the Department.  In addition, if the sampling or other testing confirms that a release has occurred, the Department can require remediation if it is necessary and appropriate in order to protect human health and the environment.

Over the years, a relatively small number of hazardous waste generators (including CESQGs, SQGs and LQGs) inspected by the Department were suspected to have had significant releases of hazardous waste and hazardous waste constituents at their facilities due to poor management of waste materials.  Unfortunately, because of a “loophole” in the regulations, the Department has been unable to require such a generator to conduct testing to evaluate the nature and extent of suspected contamination in order to determine whether or not any release poses a threat to human health or the environment until environmental samples have been obtained which document that such a release to the environment has occurred.  This means that, unless the Department or some other entity takes samples of affected environmental media and proves that a release has occurred, the Department has no authority to require the generator of that release to characterize or remediate the suspected release(s) of hazardous waste.  

Most releases that the Department requires to be remediated are already verified by the time the Department becomes aware of them.  This usually occurs because samples taken in a site assessment or due-diligence assessment as part of a property sale discover contamination, or because samples taken on an adjoining property discover contamination.  Occasionally, however, poor waste management practices at a facility inspected by the Department indicate that a release of hazardous waste has occurred.  This results in two problems:  1) the Department does not have the necessary resources to obtain and analyze environmental samples from every facility that appears to have had releases of hazardous waste or hazardous waste constituents to the environment, and 2) the costs for characterization of a potential release should be borne by the entity that has used poor practices. 

This amendment will better protect public health and the environment by closing this regulatory “loophole” and authorizing the Department to require that a potential release of hazardous waste to the environment be characterized by the owner or operator of the entity that caused the release.

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.