DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

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

6 CCR 1007-3

hazardous waste

Corrective Action Plan (CAP) Amendments

(Adopted by the Solid and Hazardous Waste Commission on February 16, 2016)

1) Amend Section 100.10 by revising paragraph (a)(8) to read as follows:  

§ 100.10 SCOPE OF THE RCRA PERMIT REQUIREMENT.  Who must apply?

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(a) Specific exclusions from the RCRA permit requirement:

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(8) Persons who carry out activities to immediately contain or treat a discharge, or an imminent and substantial threat of a discharge, of hazardous waste or material which, when discharged, becomes a hazardous waste.  After the immediate response activities are completed, any treatment, storage, or disposal of discharged material or discharge residue or debris that is undertaken must be covered by a RCRA permit, an emergency RCRA permit or an interim status corrective action order pursuant to § 265.5.  Facilities subject only to the corrective action or closure requirements of Part 264 or Part 265 may alternatively use an enforceable document pursuant to § 100.10(d), or a Corrective Action Plan pursuant to § 100.26.  In the case of emergency responses involving military munitions, the responding military emergency response specialist's organizational unit must retain records for three years identifying the dates of the response, the responsible persons responding, the type and description of material addressed, and its disposition.

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2) Amend Section 100.10 by adding paragraph (e) to read as follows:  

§ 100.10 SCOPE OF THE RCRA PERMIT REQUIREMENT.  Who must apply?

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(e) Corrective Action Plans.  At the Department’s discretion, an owner or operator may obtain a Corrective Action Plan in accordance with § 100.26 authorizing corrective action or closure activities at a non-permitted facility to satisfy the permitting requirements of this Part 100.

3) Amend Section 100.26 by revising paragraph (a) to read as follows:  

§ 100.26  Corrective Action Plan.

(a) The owner or operator of a hazardous waste facility that is subject to the corrective action or closure requirements of Part 264 or Part 265, but that does not currently have a treatment, storage or disposal permit, may submit an application for a Corrective Action Plan to conduct corrective action or closure.  Applications for such plans may be for entire facilities or portions thereof.  An approved Corrective Action Plan serves as a permit for the facility.  

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4) Add Section 8.85 {Statement of Basis and Purpose for the Rulemaking Hearing of February 16, 2016} to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of February 16, 2016

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.