DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Solid and Hazardous Waste Commission
Hazardous Materials and Waste Management Division (HMWMD)
6 CCR 1007-2

Statement of Basis and Purpose
 and Specific Statutory Authority for
Amendment of Regulations Pertaining to Solid Waste Sites and Facilities (6 CCR 1007-2 Part 1) – Section 9.1.2(B) – Elimination of partial exemption for waste impoundments managing coal combustion residuals (CCR)

Basis and Purpose
This amendment to 6 CCR 1007-2, Section 9.1.2(B) is made pursuant to the authority granted to the Solid and Hazardous Waste Commission in Sections 25-15-302(4.5) and 30-20-109, C.R.S.
The purpose of this amendment to Section 9.1.2 is to eliminate the partial exemption at Section 9.1.2(B) for waste impoundments that manage and contain coal combustion residuals (CCR).
Background
On February 12, 2012, the Solid and Hazardous Waste Commission (the “Commission”) adopted new Section 9 (Waste Impoundments) regulations for surface impoundments managing solid waste.  The purpose of the 2012 amendments was to update the existing Section 9 regulations that were promulgated in 1984.
The 2012 amendments included a partial exemption at Section 9.1.2(B) for impoundments that manage and contain coal combustion residuals (CCR impoundments) from the requirements of Section 9.1.9 (Timing of Submittal of an Engineering Design and Operation Plan); Section 9.2 (Requirements for Type A Waste Impoundments); and Section 9.3 (Requirements for Type B Waste Impoundments).
At the time of the Commission’s adoption of the 2012 amendments, EPA was still evaluating comments on their proposed rule on whether to require that CCR impoundments be managed under national solid waste standards or under hazardous waste standards.  Pursuant to Section 9.1.2(B), CCR impoundments were provided an exemption based on an assumption that impoundments potentially subject to the proposed rule of the U.S. Environmental Protection Agency (EPA) published in the Federal Register on June 21, 2010 {75 FR 35127} would be regulated by the state under a pending CCR-specific regulation.
On April 17, 2015, the EPA published a final rule {80 FR 21302-21501} in the Federal Register to regulate CCR as solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA).  The April 17, 2015 final rule established nationally applicable minimum criteria for the disposal of CCR in landfills and surface impoundments.
Following issuance of the federal rule, the Hazardous Materials and Waste Management Division (the “Division” or “HMWMD”) initiated a stakeholder process for the development of applicable state regulations for the management of CCR.  As part of the stakeholder process, the Division issued draft Section 19 regulations on January 4, 2016, and held four stakeholder meetings between January and April 2016 to discuss the proposed regulations.
On June 10, 2016, the Division received a letter from the Colorado Utilities Coalition with extensive comments and proposed changes to the Division’s draft Section 19 regulations.  The Colorado Utilities Coalition‘s letter represented all of the power utilities in Colorado that would be affected by the proposed regulations.
After consideration of the comments received during the stakeholder process, the Division decided to suspend its efforts on the rulemaking process for the proposed Section 19 regulations.  The stakeholders agreed to this suspension of efforts.
Summary of Regulatory Proposal
This amendment to Section 9.1.2(B) eliminates the partial exemption for waste impoundments that manage CCR.  CCR facilities and waste management units will continue to be regulated under Sections 1,2, 3 and 9 of the state Solid Waste Regulations (6 CCR 1007-2).  Existing state-approved Engineering Design and Operations Plans (EDOPs) will remain in effect and are not superseded by the federal CCR rule.  The Division will continue to work with facilities to consider proposed modifications to the existing EDOPs to better integrate and avoid possible inconsistencies between provisions in state-approved EDOPs and requirements of the federal CCR rule.