DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

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

6 CCR 1007-3

hazardous waste

Proposed Spill Notification Requirements

1) Section 261.5 is amended by adding paragraph (b)(6) to read as follows:  

§ 261.5 Special requirements for hazardous waste generated by conditionally exempt small
quantity generators.

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(b) *******

(5)  Conditionally exempt small quantity generators shall comply with § 265.31(a) relating to maintaining and operating their facility to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents.

(6) A conditionally exempt small quantity generator engaged in any operation or activity which results in a spill or discharge of characteristic or listed hazardous waste subject to these regulations which either may, or has subsequently been determined, to have entered the environment via emission into the air, discharge onto the land or discharge into any surface water or ground water contrary to the provisions of these regulations, shall notify the Department of such discharge or disposal.  The requirement to notify applies in all instances where a facility discovers a discharge has entered the environment, regardless of when the discharge is discovered in relation to the actual release date, and regardless of whether the discharge warrants a response under an emergency contingency plan.  This requirement to report potential or known releases to the environment shall be conducted pursuant to § 262.43(c) of these regulations. 

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2) Section 262.43 is amended by adding paragraphs (c) – (c)(10) to read as follows:  

§ 262.43 Additional reporting. 

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(c) A generator engaged in any operation or activity which results in a spill or discharge of characteristic or listed hazardous waste subject to these regulations which either may, or has subsequently been determined to, have entered the environment via emission into the air, discharge onto the land or discharge into any surface water or ground water contrary to the provisions of these regulations, shall notify the Department of such discharge or disposal.  The requirement to notify applies in all instances where a facility discovers a discharge has entered the environment, regardless of when the discharge is discovered in relation to the actual release date, and regardless of whether the discharge warrants a response under an emergency contingency plan.  Within 15 days after the incident or discovery, the generator must submit a written report on the incident or discovery to the Department. The report must include:

(1) Name, address, and telephone number of the owner or operator;

(2) Name, address, and telephone number of the facility;

(3) Date, time, and type of incident (e.g., spill, fire, explosion) or discovery of a release in soil, surface water or ground water; 

(4) Name and quantity of material(s) involved;

(5) Any data documenting the presence of hazardous waste or hazardous constituents in soil, surface water or ground water; 

(6) The extent of injuries or the potential for people to be exposed, if any;

(7) An assessment of actual or potential hazards to human health or the environment, where this is applicable;

(8) Estimated quantity and disposition of recovered material that resulted from the incident;

(9) Any data that might characterize the extent and magnitude of the release following the initial discovery, if available; and

(10) For those releases that cannot be fully cleaned up within 15 days after the incident or discovery, the report should describe how the release will be characterized and remediated pursuant to § 100.10(a)(8).

3) Section 264.1 is amended by revising paragraph (g)(8)(iii) to read as follows:  

§ 264.1 Purpose, scope and applicability. 

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(g) The requirements of this part do not apply to:  
	
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	(8)(i) Except as provided in paragraph (g)(8)(ii) of this section, a person engaged in treatment or containment activities during immediate response to any of the following situations:
		 
		(A) A discharge of a hazardous waste;

		(B) An imminent and substantial threat of a discharge of hazardous waste;

		(C) A discharge of a material which, when discharged, becomes a hazardous waste.

(ii) An owner or operator of a facility otherwise regulated by this part must comply with all applicable requirements of Subparts C and D.

(iii) Any person who is covered by paragraph (g)(8)(i) of this section and who continues or initiates hazardous waste treatment or containment activities after the immediate response is over is subject to all applicable requirements of this part. , unless the activities are conducted under a Division-approved Corrective Action Plan prepared in accordance with § 100.26 authorizing corrective action or closure activities at a non-permitted facility.

(iv) In the case of emergencies 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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4) Section 265.1 is amended by revising paragraph (c)(11)(iii) to read as follows:  

§ 265.1 Purpose, scope, and applicability. 

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(c) The requirements of this part do not apply to:   
	
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(11)(i) Except as provided in paragraph (c)(11)(ii) of this section, a person engaged in treatment or containment activities during immediate response to any of the following situations:

(A) A discharge of a hazardous waste;

(B) An imminent and substantial threat of a discharge of a hazardous waste;

(C) A discharge of a material which, when discharged, becomes a hazardous waste.

(ii) An owner or operator of a facility otherwise regulated by this part must comply with all applicable requirements of Subparts C and D.

(iii) Any person who is covered by paragraph (c)(11)(i) of this section and who continues or initiates hazardous waste treatment or containment activities after the immediate response is over is subject to all applicable requirements of this Part . , unless the activities are conducted under a Division-approved Corrective Action Plan prepared in accordance with § 100.26 authorizing corrective action or closure activities at a non-permitted facility.

(iv) In the case of emergencies 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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5) Part 99 is amended by adding paragraph (f) to read as follows:  

PART 99 - NOTIFICATION

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(f) Any person engaged in any operation or activity which results in a spill or discharge of characteristic or listed hazardous waste subject to these regulations which may enter the environment via emission into the air, discharge onto the land or discharge into any surface water or ground water contrary to the provisions of these regulations, as soon as the person has knowledge thereof, shall notify the Department of such discharge or disposal.

6) Section 100.10 is amended 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 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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7) Section 100.10 is amended 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.

8) Section 100.26 is amended by adding paragraph (e) 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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9) Section 8.85 {Statement of Basis and Purpose for the Rulemaking Hearing of February 16, 2016} is added 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, Parts 261, 262, 264, 265, 99 and 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 Parts 261, 262, 264, 265, 99 and 100 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) to: 1) require generators and any other party engaged in any operation or activity which results in a spill or discharge of characteristic or listed hazardous waste subject to the regulations to notify the Division of such discharge or disposal; and 2) to clarify that Corrective Action Plans (CAPs) are permits and can serve in place of traditional RCRA permits for corrective action and closure activities.  

Proposed Spill Notification Requirements

The requirement to notify applies in all instances where a facility discovers a discharge has entered the environment, regardless of when the discharge is discovered in relation to the actual release date, and regardless of whether the discharge warrants a response under an emergency contingency plan.  

In accordance with additional reporting requirements of § 262.43(c), a generator must submit a written report on the incident or discovery to the Department with 15 days after the incident or discovery of the incident.  The report must include the following information:

(1) Name, address, and telephone number of the owner or operator;

(2) Name, address, and telephone number of the facility;

(3) Date, time, and type of incident (e.g., spill, fire, explosion) or discovery of a release in soil, surface water or ground water; 

(4) Name and quantity of material(s) involved;

(5) Any data documenting the presence of hazardous waste or hazardous constituents in soil, surface water or ground water; 

(6) The extent of injuries or the potential for people to be exposed, if any;

(7) An assessment of actual or potential hazards to human health or the environment, where this is applicable;

(8) Estimated quantity and disposition of recovered material that resulted from the incident;

(9) Any data that might characterize the extent and magnitude of the release following the initial discovery, if available; and

(10) For those releases that cannot be fully cleaned up within 15 days after the incident or discovery, the report should describe how the release will be characterized and remediated pursuant to § 100.10(a)(8).

Currently there is no requirement in the Colorado Hazardous Waste Regulations to notify the Department of such releases or to clean up releases in a timely manner.  By requiring this notification, the Department will have the opportunity to work with the facility owner/operator sooner so as to quickly respond to the releases of chemical contamination in an effort to minimize or eliminate long-term impacts to environmental media.  Responding to these discoveries sooner has several advantages:  a) minimizing the quantity and extent of the contaminated area; b) expediting remedial activities; c) reducing expenses by limiting the impacted area from a quicker response; and d) increasing the overall likelihood of successful remediation.  The Department is presently notified of releases at one to two dozen sites per year, primarily as a result of Phase II due diligence investigations conducted in advance of a property sale or refinancing.  The Department does not anticipate these rule changes will significantly increase this reporting rate.  Rather, it should prompt timely reporting of spills, leaks and other non-emergency incidents.   

The adopted amendments regarding additional notification requirements are:

1)	Addition of paragraph (b)(6) to § 261.5 (Special requirements for hazardous waste generated by conditionally exempt small quantity generators (CESQGs)).  CESQGs are presently not required to report releases to the Department even though many of the reported releases originate at this category of site.

2)	Addition of paragraph (c) to § 262.43 (Additional reporting for Generators of Hazardous Waste).  Presently both large and small quantity generators are required to comply with Part 265, Subpart D contingency plan requirements.  This includes immediately notifying the National Response Center, followed by the Department within 15 days of implementing their contingency plan in response to a fire, explosion, or any unplanned sudden or nonsudden release of hazardous waste or hazardous constituents to air, soil, surface or ground water at the facility.  However, this requirement does not apply to sudden and nonsudden spill incidents of products becoming hazardous waste upon contact with environmental media.  Nor does this requirement apply to ongoing, nonsudden releases that don’t necessarily trigger implementation of a contingency plan.  Nonsudden releases are often overlooked by the regulated community as emergency incidents requiring immediate action, prolonging notification of the facilities’ release discovery to the Department for months and, in some cases, years. This new paragraph (c) establishes an affirmative duty on all generators to report any release of hazardous waste or hazardous materials contaminating environmental media which, in turn, will facilitate prompt corrective action. As noted previously, this should not necessarily increase the number of incidents reported, just the speed with which the Department learns of the events.  

3)	Addition of paragraph (f) to Part 99 (Notification). Part 99 prohibits hazardous waste subject to the regulations from being generated, transported, treated, stored, or disposed unless prior notification has been given as required under this part.  The addition of paragraph (f) to Part 99 is meant to broaden that notification requirement to include new and historic releases that constitute disposal under the Colorado Hazardous Waste Act, the contamination from which, unlike the other cited activities, can have significant and long lasting consequences.

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.

3)	Amendment of § 264.1(g)(8)(iii) and § 265.1(c)(11)(iii).  Section 264.1(g)(8)(iii) and § 265.1(c)(11)(iii) of the regulations presently state that hazardous waste treatment or containment activities conducted after the immediate response to a release are subject to all applicable permitting requirements.  Amending 264.1(g)(8)(iii) and 265.1(c)(11)(iii) is meant to give operators yet another enforceable mechanism that they can use to complete remedial activities in lieu of a formal RCRA  permit.  

These amendments are more stringent than the federal regulations.  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.