COLORADO
HAZARDOUS WASTE MANAGEMENT GUIDE
by
THEODORE J. HACKWORTH
CONSULTANT
ENVIRONMENTAL PROTECTION AGENCY
REGION 8
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#2-7-4 ^
065"/
REGION VIII
1350 LINCOLN STREET
DENVER. COLORADO 80295
TO:
FROM:
RE:
County Commissioners and Staff
U.S. CPA Region 3 Library
80C-L
999 18th St., Suite 500
Denver, CO 60202-2-166 J
Ted Hackworth - Consultant, Environmental Protection Agency
Hazardous Waste Siting
Some of you have already been faced with a decision on a hazardous
waste site in your area and many of ycu may be faced with making a
decision in the future.
While the Environmental Protection Agency has no direct role in
the siting decision, as a part of your siting decision process
many questions are asked about the operational and closure re-
quirements that do involve our agency.
Present State legislation will allow the State Department of Health
to assume, upon approval of the E. P. A., the inspection and clo-
sure authority after July 1, 198 3. In the meantime, both the
E. P. A. and the state are involved.
To aid you in understanding both che state and federal hazardous
waste regulations we have prepared the attached "Colorado Hazard-
ous Waste Management Guide." We also have a public informational
flyer which we would be happy to make available for your public
hearings at no cost to you.
As a local government liaison with the E. P. A., I will be happy
to answer any questions or arrange a more detailed briefing for
you. I can be reached at 1-3 37-3395 or through a letter addressed
to my attention at the Regional Office.
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COLORADO
HAZARDOUS WASTE MANAGEMENT GUIDE
by
THEODORE J. HACKWORTH
CONSULTANT
ENVIRONMENTAL PROTECTION AGENCY
REGION 3
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PREFACE
This guide is made available to County and Municipal officials considering a
proposal for a hazardous waste site in their area.
It is designed to inform these officials about the Resource Conservation and
Recovery Act (RCRA) and appropriate state legislation provisions as they might
affect their consideration of a proposal.
Since this guide is designed only for briefing, guidance about the specifics
of the siting proposal should be obtained from their staff, the State Health
Department and the Environmental Protection Agency.
The format and some of the material for this guide were obtained from "A
Legislator's Guide to Hazardous Waste Management", 'written by Jonathan H.
Steeler. We greatly appreciate his allowing us to use the material from the
brochure, which was prepared under a U. S. Environmental Protection Agency
training grant to the National Conference of State Legislatures.
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Table of Contents
Guide Explanation 1
Identification of Hazardous Wastes 1
Generator and Transporter Standards 4
Management Requirements 5
Enforcement 8
Land Disposal 9
Additional State Issues 11
Planning Requirements 11
Siting Hazardous Waste Facilities 12
Facility and Site Ownership Options 14
Murtcipal and County Rights and Responsibilities 16
Certificate of designation application
Certificate of designation requirements
Hazardous waste site operations
Cost
Abandoned Site Program 18
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COLORADO
LOCAL GOVERNMENT HAZARDOUS WASTE MANAGEMENT GUIDE
Ijfldar the authority of the Resource Conservation and Recovery Act of 1975,
c.-ic c.P.A. has estaonshed detailed mm unum requirements for approvsble state
hazardous waste programs. This booklec will discuss those program elements
that are required by federal law and state legislative options to respond to
federal requirements. These minimum requirements include:
o j procedure for identifying hazarccus waste,
o standards for generators ana ira.nsoor cers of hazardous waste;
o standards for hazardous waste treatment, storage ana disposal
facilities and;
o establishment of an enforcement program.
It must be emphasized that the federal program only establishes minimum
standards and does not prevent the states from creating more stringent
requirement. The federal requirements discussed in this booklet do not
necessarily address all potential problems associated with hazardous waste
management. This guide will discuss how the Colorado State Legislature has
responded to the RCRA legislation and how local governments are affected.
IDENTIFICATION OF HAZARDOUS WASTE
FEDERAL STANDARDS
The initial step in establishing an effective management program is to
identify which wastes are hazardous and should be subject to control. Section
3001 of RCRA, in conjunction with the EPA's final regulations, established the
core of the hazardous waste management system by defining hazardous wastes.
The EPA regulations, guided by the general definition of hazardous waste in
RCRA, specifically that a solid waste will be considered hazardous if it meets
any of the following three conditions:
o The waste exhibits any of the characteristics of a hazardous waste,
i.e., ignitabi1ity, corrosivity, reactivity or toxicity. These
characteristics are identified by waste generators through EPA's
testing procedures.
o The waste is listed by the EPA as a hazardous waste, or is a mixture
of a solid waste and a listed hazardous waste. The EPA rules put the
burden of proof on the waste generator to show that a listed waste is
not hazardous. Upon a successful showing, the EPA may grant a
petition to delist the waste.
o The waste is a sludge, spill residue, ash, emission control dust or
leachate generated from the treatment, storage or disposal of a
hazardous waste that exhibits the above mentioned characteristics.
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The list of hazardous waste published by the EPA cn Pay 19, 1980 can be
ci video inio four parts:
a. Sixteen hazardous wastes from non - specific sources (e.g.,
wastewater treatment sludges from electroplating operations);
b. Sixty-nine hazardous wastes from specific sources (e.g., emission
ccntr;' cuit/i'i'jcge from secondary leaa smc i cmg;;
c. Twenty-cwo cChmerciai cneimcal procuc:s chat are acutely hazardous
wastes if: aiscarded in their pure form; their off - specification
products are discarded; containers used to hold the products are
aiscarded; or any spill residue or debris contains the chemical
product or off - specification macerial anc;
:. .-.i accmona". 239 cprnng'-cia; chemical .jrod^cci in -jss ignaiea as
toxic wastes if: discaraea in their pure f;rm; tha:r
off-specification proaucts are discarded; cr any spill residue or
debris contains the chemical product or off - specification material.
Certain solid wastes are not covered in the EPA hazardous waste
regulations because of RCRA statutory provisions (e.g., electric utility -
generated wastes).
In addition, the EPA will initially exclude certain small quantity
generators from the hazardous waste management requirements, i.e., those who
produce or accumulate less than 1000 kilograms (kg) of hazardous waste per
calendar month. Those generators must only ensure that their wastes are
delivered to a hazardous waste facility cr to a facility licensed by the state
to manage municipal or industrial solid waste. However, generators as low as
1 kg of acutely hazardous waste must meet full EPA hazardous waste management
requ irements.
Colorado has not approved any municipal or industrial solid waste sites as
suitable for receiving hazardous wastes from small quantity generators,
therefore, all must go to a hazardous waste commercial site. At present, no
one is checking on small quantity generators to see they are taking their
wastes to the conmercial site.
STATE ACTION
In Colorado, Senate 3ill 519 (1381) established Article 15 entitled
Hazardous Waste. It defines hazardous wastes by certain characteristics.
It states:
"Hazardous Wastes" mean any material, alGne or mixed with other materials,
which has no commercial use or value, or which is aiscardeG Gr is to be
discarded by the processor thereof, either of which because of its
quantity, concentration, or physical, chemical, or infectious
characteristics may:
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1. Cause, or significantly contribute to, an increase in serious,
irreversible, or incapacitating reversible illness, or;
2. Pose a substantial present or potential hazard co human health or the
environment when improperly treated, stored, transported or disposed
of, or otherwise managed.
The Colorado Act excludes from the hazardous waste definition;
1. Discharges which are point sources subject to permits under Section
402 of the "Federal Water Pollution Contra^Act" as amended.
2. Source, special nuclear, or by-product as"'defined by the Federal
"Atomic Energy Act of 1954" as amended.
J). Agricu Itural *asta from the raising of crops c animals, inclining
animal manures, which are returned to the soil as fertilizers cr soil
conditioners.
4. Domestic sewage.
5. Irrigation return flows.
6. Inert materials deposited for construction fill or topsoil placement
in connection with actual or contemplated construction at such
locations or for changes in land contour for agricultural and mining
purposes.
7. Any wastes or other materials exempted or otherwise not regulated as
a hazardous waste under the Federal Act.
The Colorado Act does establish a "Cormn'ttee on Hazardous Waste
Regulations" which has the authority to develop and formulate rules and
regulations for submission to the State Board of Health including:
"Criteria for establishing characteristics and listings of hazardous
wastes, including mechanisms for determining whether any waste is
hazardous."
"Regulations governing those wastes or combinations of wastes which
are not compatible and which may not be stored, treated or disposed
of together."
However, the Act also provides:
"the characteristics and listings of hazardous wastes, including
mechanisms for determining whether any waste is hazardous and any
exclusions, shall be identical with and no more inclusive than
those specified in the Federal regulations."
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GENERATOR old TRANSPORTER STANDARDS
rcDuKni. S l ANDARDS
In order to comply with the notification requirements in RCRA, the
teneratcr tilisr: determine if its waste is hazardous. Th-s determination is
cased on tne lists ana characteristics described earlier. Once a generator
determines that it produces a hazardous waste, it must comply with the rules
described below.
According to the federal regulations, the generator or t.ie waste ~ust
~r,$ u r? nd^arcous vc s r^icncs d pii"nii~3o r dcz i" ^ . iO'S 15 goo-
tnrougn a tracking system which uses a set of shipping papers, or manifest,
that follows the waste from its generation to disposal. The manifest, signed
by the generator, must accompany all off - site shipments of the waste until
its ultimate disposal. At that time, the owner/operator of the treatment
storage or disposal facility must return a copy of the manifest to the
generator. If the generator does not receive the manifest within 35 days of
shipment, he must contact the transporter and the owner/operator of the
disposal facility to determine the status of the waste. If, after 45 days
from shipment the generator does not receive the manifest, the generator must
file a report with the regional EPA office in order to alert the EPA to
possible problems.
On March 4, 1982, The Environmental Protection Agency and the Department
of Transportation, in a joint rule making effort, proposed the required use of
a Uniform Hazardous Waste Manifest form for the interstate and intrastate
transportation of hazardous waste. Since numerous states are requiring the
use of their form the generator of hazardous waste may be required to go
through the costly and inefficient procedure of filling out several manifest
forms with duplicate information to ensure that the waste shipment reaches the
designated facility. If adopted, this uniform manifest will eliminate this
problem and reduce confusion and compliance difficulties for the transport of
hazardous wastes.
RCRA requires the EPA to consult with the DOT to ensure that its
regulations are consistant with DOT regulations. Because there is regulatory
overlap between the EPA and tne COT, the two agencies determined that the DOT
standards should apply in the area of transportation safety while EPA
standards are applicable to waste management. GOT regulations apply to
pack ageing, labeling, marking, placarding and identification of the wastes
during shipment, and the EPA oversees waste management and ensures compliance
with the manifest system. To implement this coordination, the EPA and the OQT
have issued a Joint Memorandum of Understanding that delineates the agencies'
responsibilities.
STATE ACTION
In Colorado, hazardous waste management companies will operate under
Federal law until the State is authorized by EPA to implement RCRA but not
before July, 1983. Standards will be regulated by EPA and COT until that time.
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After July, 1933, and certification by the E?A that Colorado rules and
regulations at lease meet the mi n imu:n standarGS of RCr!A, the Colorado
Department of Health will be designated as the lead agency in the state for
the regulation of hazardous waste management.
The Colorado Act requires that the Health Department shall "assure that
all generators, transporters, storeys, treaters, and disposers of hczarco'.is
waste have received appropriate identification by the Department, use a
manifest system and provide periodic reports on waste manifested."
Manifest is defined in the Act as the document used for identifying the
quantity, composition, origin, routing ana destination of hazardous waste
jijrmg its transportation from the point of generation to the point of
storage, treatment or disposal.
The Health Department is required to coordinate its activities, rules ana
regulations consistent with those of the Public Utilities Commission.
There are two exceptions to the generator requirements under Colorado law:
1. Any person other than a governmental unit may dispose of his own
hazardous waste on his own property. The owner must notify the local
government of the types and methods of hazardous waste disposal.
Such disposal must comply with the rules and regulations of the State
Board of Health and must not constitute a public nuisance.
2. Any person engaged in mining operations under an approved plan of
reclamation may dispose of hazardous waste generated by such
operations within the permitted area of such operations.
MANAGEMENT REQUIREMENTS
FEDERAL STANDARDS
The next step in controlling hazardous waste management practices is to
ensure that wastes identified as hazardous are managed in an environmentally
acceptable manner at authorized treatment, storage and disposal facilities.
As required by Section 3004 of RCRA, the EPA published standards for these
facilities.
Because of the complexity of the technical and administrative requirements
which the EPA must impose on the hazardous waste management industry, the
agency decided to phase in facility requirements in a three - stage process.
Phase I of the regulations will provide standards for existing facilities.
These standards will be effective while the facility's permit is being
processed. The EPA estimates that this processing will take several years.
Phase II of the regulations sets out additional technical performance
standards. These standards will be incorporated into the final permitting
process. Phase III will incorporate more detailed technical standards. These
three phases are explained in more detail on the following pages.
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Phase I - These regulations use the concept of "interim status" contained
¦ n Section 2GC5 of RCKA cc pnase in hazardous v.aste facility standards. By
November 19, I9SC, owners/operators of existing facilities '.vho have applied to
the EPA for a facility permit must comply with the "interim status" standards.
If an owner/operator of a facility existing on November 19, 1S8Q notifies
^r.car Section 5010 of XCriA and properly applies for a facility cermit, the
owner/operator is to "be treated as raving been is:u=u such permit." The
"interim status" requirements will apply for the period between
November 19, 1980 and the date that a final determination is made on a
facility's permit application.
.'ve* f -:c 111 ti as, a complete permit aop I ication .-us: 33 submitted at
'east ic.ij cays berore a physical construction is scnecuiru to oeoin. Gr,ca a
permit is submitted, the regulatory authority must decide whether to issue a
permit which would be for a maximum of 10 years or deny a permit.
The ''interim status" standards are designed so that Hazardous waste
facility owners/operators can comply within six months from publication and
without significant capital expenditures. The administrative and non -
technical operating standards include:
o chemical and physical analysis of waste;
o spill preparedness and prevention arrangements;
o a contingency plan for waste releases and emergencies;
o compliance with manifest, recordkeeping and reporting requirements;
o closure and post - closure plan requirements;
o facility security requirements;
o training for facility personnel;
o separation of ignitable and reactive wastes from ignition or reaction
sources;
o groundwater monitoring; and
o financial responsibi1ity requirements.
One requirement mentioned above is that owners/operators of facilities
provide assurances of financial responsibi1ity for damages that may be
incurred during the life of the facility, and assurances of financial
responsibility for closure and post - closure care and maintainance of the
facilities.
Presented below is a short discussion of these requirements.
o Site Life Liability. By July 15, 1982, an owner/operator of a
facility having interim status must show evidence of at least 51
million of liability insurance per occurrence per firm (not per site)
with a S2 million annual aggregate for sudden and accidental
occurrences (exclusive of legal defense costs). Additionally,
coverage for non - sudden accidental occurrences of at least S3
million per occurrence, up to a limit of So million annually must be
demonstrated by an owner/operator of one or more surface
impoundments, landfills, or land treatment facilities. T'nis
additional coverage for non - sudden accidental occurrences is being
phased in starting in January, 1983 with the largest operators and
finally required for all operators by January, 1985.
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o Closure and Post - Closure Care. Post - closure care must be
provided for 30 years following closure. The regulations require the
owner/operator to choose from a number of financial mechanisms to
ensure there will be money available for closure and post - closure
care. Separate mechanisms may be used for closure ana post - closure
or one mechanism may be used for both if it meets the requirements of
both. The regulations allow the roll o-.vi ng mechanisms for assuring
closure and/or post - closure: trust funas, sure:y bonds, stancoy
letters of credit, meeting a financial test that shows the economic
conditions of the owner/operator to be stable enough to guarantee
closure and post - closure, and post - closure insurance.
The tecnnical - r-e'iatad interim status stand arcs "nclude various
re^uireir.ents for the use of: containers; :an.
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Si ATE ACTION
L,'Ccr Sonata Bill o^j any person c=siring to operate a hazardous
waste disposal site snail make application for a certificate of designation to
the board of county comnissloners of the county cr to the governing bcay of
the municipality in which such site is proposed to be located. The
application shall 32c forth trie following: tne location of the site; the
t>?~s jf /,asta to be accaptea or rejectee; the types of v,aste disposal; tna
nours of operation; the method of supervision; the anticipated access routes
in the county; and the rates to be charged.
Prior to considering the application fcr a certificate of designation, the
1 ;cal rr,=rit unt can request a fmamg of fact "Vom Coloracu
->~2 zC ZTi'zfiZ j~ " z flUSil (*1*1 c ZT> c >" C~.it Sl.r CCulj 2£
cesignea ana operateG in compliance with the app 11 cable rules ana regulations.
In developing their finding of fact, the State Health Department must
cetermne i) the effects of the geological conditions upon the proposed
operation ana 2) the effects of the proposed activity upon future geological
processes and environmental conditions in the area.
If the certificate of designation is issued, the applicant must then
obtain a permit. Prior to full state authorization, the permit would be
issued by the EPA. After authorization, the state would assume the granting
of permits, compliance monitoring and enforcement procedures. The state is
now in the process of developing rules and regulations adequate for state
authorization by the EPA. The target date for completion is 9/30/82.
ENFORCEMENT
FEDERAL STANDARDS
The key to accomplishing the purposes of RCRA - controlling waste
management practices that endanger public health or the environment and
promoting resource conservation and recovery - is strict enforcement of the
regulatory program. Strict enforcement will force generators to utilize
permitted treatment and disposal facilities.
In the past, costs associated with disposal of wastes were artificially
lew. The costs associated with resource recovery and waste reduction
techniques are relatively high and there have been few incentives to
incorporate these techniques into the industry's waste management practices.
3ecause of the high costs of environmentally sound waste management, market
forces may cause industries to turn to resource recovery and waste streams.
It would become important to ensure that all wastes are properly managed.
Strict enforcement means devoting adequate financial and human resources
to ensure that the waste is controlled from "cradle to grave". In addition to
adequate resources there must be strict penalties for violations of the
regulatory program. The Federal program sets out minimum standards. For
those states seeking authorization, state legislation must provide for civil
and criminal penalties consistent with RCRA. The EPA regulations also require
public participation may take the form of allowing the citizens the right of
intervention in any civil or administrative action to obtain remedies, cr some
assurance that the enforcement authority will investigate and provide written
responses to citizen complaints and not oppose citizen intervention where
permissive intervention may be authorized by statute.
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Additionally, the state must have a surveillance program that ensures
compliance with the regulations.
For those states seeking final authorization, their program should include
a compliance evaluation program that provides for reports and notices, and
independent inspection and surveillance program, entry, inspection an
ncnitonng authority, and proper evidsnce-catha^irg procedures. Tha
c"foremenc authority should allow tne state to stop unaLitnorizaceo
activities, sue for permit violation without need for permit revocation, and
provide for civil and criminal fines of up to 510,000 per day and criminal
penalties of up to six months imprisonment for each violation. Finally, the
¦enforcement program must meet the same public participation standards
z i s cj s s ao o ve.
STrtTh ACTION
Colorado legislation provides for the payment by the operator of a
hazardous waste facility of a fee to offset "actual reasonable program costs"
for such facilities. The amount of the fee varies with the quantity and
aegree of hazard at the location.
The fees are placed in a hazardous waste service fund with the State
Treasury to be appropriated annually to the Department of Health to cover the
costs of the hazardous waste program.
The Act also provides for civil penalties of not more than 525,000 per day
for persons who violate any compliance order. The same fine applies when any
person violates any permit, rule or regulation.
Criminal penalties of not more than one year in jail and/or a fine of not
more than 525,000 for each day of violation for willful, reckless, or criminal
negligence in disposing of or handling hazardous wastes can be assessed under
the Colorado law.
LAND DISPOSAL
Land disposal has in the past been in general purpose landfills, sanitary
landfills, and secure landfills.
General purpose landfills are constructed, as defined by the EPA, without
regard to their possible effects on water resources. These landfills are
covered intermittently, or daily, but do not have provisions for monitoring,
leachate treatment, or special containment of wastes. General purpose
landfills, according to studies, have been the disposal method for the vast
majority of industrial wastes.
Sanitary landfills are designed and built to reduce environmental hazards
by the spreading and compacting of wastes and by covering the waste with other
materials. These landfills do not usually monitor or treat leachate or
separate incompatible wastes.
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Secure landfills are cesigned to prevent connection with ground and
surface waters and to prevent different wastes from coming into contact with
each other. This is usually accomplished with liner and capping materials
(e.g., clay and synthetic liners), separate cells for specific waste types,
continuous water monitoring, and leachate collection systems. Only a very
small portion of hazardous wastes is currently placed in secure lancfiils.
It should be noted that many groups are working on developing new and less
expensive technologies for managing hazardous waste. A staff report from the
President's Office of Science and Technology Policy/Intergovernmental Science,
¦£ngi neer-ng anc Tacnnology Aavisory Panel recanriendeo several strategies ~or
oeve loo:.",g treatment technologies. Tnese ircljue:
o work to develop or adopt new manufacturing or industrial processes to
reduce the amount of wastes generated by industries that produce
particularly dangerous wastes ana those that are not likely to be
able to conduct research and development on waste reduction processes;
o develop techniques to increase the recovery of heavy metals and start
a nationwide waste exchange program; and
o conduct further research and development activities on treatment,
destruction and long - term storage.
STATE OPTiONS
State legislatures can encourage alternatives to landfilling. Incentives
include expediting license review for facilities other than landfills,
encouraging waste exchanges and requiring that generators treat or neutralize
their waste as opposed to disposing of it in landfills.
Minnesota's Waste Management Act contains a number of provisions which
expedite the licensing of hazardous waste storage and treatment facilities
compared to licensing conmercial landfills. Colorado and Kentucky recently
passed legislation that requires land disposal facilities to receive local
approval prior to licensing.
In a report to the Missouri Senate Committee on Energy and Environment,
the staff recommended a statewide waste exchange service to be established to
facilitate recycling.
California requires that no extremely hazardous waste be disposed of
without prior processing to remove its harmful properties. The Missouri
report mentioned above also recommends that the Department of Natural
Resources be authorized to require the use of alternatives to landfills where
these alternatives are economically ana technically feasible. Additionally,
the report suggests tax credits be given for investments in waste management
equipment or processes.
The Colorado Association of Conmerce and Industry operates the "Colorado
Waste Exchange". It is a 'clearinghouse1 operation which collects and
publishes information concerning available and wanted waste products. The
'clearinghouse' concept is an attempt to link potential suppliers with
potential customers for industrial processing wastes.
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zncouragement cf waste reucctio.i ana recycling is in a very early state in
most states, but it is an area where significant state initiatiave can occur.
ADDITIONAL STATE ISSUES
"he EPA state program requirements discussed are minimum repair merits for
?. state hazarGOus waste program. There are additional subjects that ~:ay be
considered by state legislatures that go Deyona implementation of the federal
requirements. These subjects, key political issues in many states, include;
* the role state government will have in planning and assessing the
needs of the state in the area of hazardous '*aste -ariayenient;
x Hfi 6 p ,'"G 0 8T p rOC SOU r 6 S TOT CHOCS*1, HQ hdZdrGOUS Wd T cC 1 1 I "3 i 2 3 \
* the establishment of a program to remedy problems associated with
abandoned hazardous waste sites; and
* the respective roles the public and private sectors should have in
developing and owning hazardous waste facilities.
PLANNING REQUIREMENTS
INTRODUCTION
Although no federal standards for planning were issued in the hazardous
waste regulations, subtitle D of RCRA calls for comprehensive state waste
management planning. The guidelines for this section suggest that the
appropriate state agency assess hazardous waste management techniques. This
planning serves to identify the state's hazardous waste problem and evaluates
the state's needs in terms of quantity and the types of facilities necessary
to manage these hazardous wastes safety.
Comprehensive planning involves agency identification of the amounts and
types of wastes produced within the state - this means information concerning
waste generation and disposal plans of generators currently operating in the
state as well as those planning to establish operation. The information
required from these generators should include general information, waste
characterization, means of storage and transportation, and treatment and
disposal methods. Following an examination of available management
technologies, a decision may be made concerning the most appropriate
technology.
There are two methods available to help identify the hazardous wastes
generated within a state. One approach is to use the information obtained
through the notification requirement in Section 3010 of RCRA. The information
obtained through the process can be made reaaily available to the planning
authority which then considers what specific facility features would be most
suitable to manage such wastes. A major fault in using this system as the
sole means of planning is that the notification requirement only assesses most
recent production. Future trends on the amount of waste produced are not
identified, thereby producing incomplete information for use in the planning
process.
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Ccncucti ng a statawice hazarcous waste survey is an alternative or
aGditicnal method of gathering adequate planning data. Complete and accurate
data are essential to the success of a survey. Although legislation may
require a response to survey questions, many states have used a voluntary
survey. Where response is not mandatory, a combination of mailed
questionnaires, follower by non - site visits, has generated greater and more
accurate responses.
The second stage of the planning effort involves analyzing the data to
determine the best way to effectively manage the waste. In New York, for
examoie, tne £nv ircnmer, cal Facilities Corporation has o=en legislatively
..'.aiiLitec: cc "prepare a ccinprsnens
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.'•iost state agencies are generally given authority to permit a facility at
a site that has been proposed by industry. After hearings to allow for public
concerns, the agency decides whether or not to grant the permit. This
approach leaves the siting choice up to industry - and does little to assure a
ccrrmunity that the facility will be safe.
Industry ana the state agency go present tecnmcal studies at the 'Hearings
to show compliance with regulations, but the public often does not understand
the intent of the studies or the terms used. Moreover, the conmunity, many
times far removed from the generation point, often questions the fairness of
being asked to bear so large a share of the erwircnmental costs of modern
¦ .iaustry - a question rarely acdressed by facility socnscrs or the agency.
There is also the question of wnich source to sell eve - if any.
One way to improve the prospects for successful siting and thereby
increase the likelihood of public acceptance of a site is to allow adequate
public participation in decision - making. Public participation programs
usually have two functions: to keep the public informed of government
activities, and to allow for substantive public input into government
decisions. It is true, as a recent report prepared for the EPA stressed, that
"a public consultation program, no matter how effective, cannot be expected to
overcome community opposition to a hazardous waste management facility." What
it can do is win public respect for the siting process by responding to public
concerns. Without this respect, the siting decisions may be delayed by years
of political and legal battles over the site.
The EPA has issued regulations on public participation programs for RCRA
activities. These regulation require the decision - making agency to conduct
a continuing program for public information and participation in the
development of a decision. The approaches include hearings, public meetings
and the use of public advisory decision.
It is not easy to determine the best level of public participation. When
there is too much, opponents may effectively block even legitimate and
generally accepted siting attempts. When there is too little, opponents may
delay siting through political or legal channels. A balance is needed that
allow participation from all interested parties, while preserving the capacity
¦ to make necessary decisions.
Another option that may aid in encouraging local acceptance is to allow
the coirmunity itself to determine what compensation is needed to site a
facility in the area. It has been suggested that the compensation could take
any one of several forms - including payments to local governments in lieu of
taxes, direct payments to landowners, purchase of buffer zones or development
rights on adjacent lands, and provision for recreational areas.
STATE ACTION
The public hearing process is not covered in the Colorado hazardous waste
legislation. However, the state guidelines for review of hazardous waste
disposal sites establish two public hearings during their review process. It
can be assumed that public hearings and notifications will be required by the
state when they become the controlling agency.
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RCrIA provides wne.n a permit application is completed, the pub 1: o is
informed. If the Regional Administrator decides to issue a permit, a draft
permit is prepared and then is subject to public notice, public coment, and
in some cases, where requested, public hearings. After the carrment perica, EPA
issues a final decision on a permit, along with a response to all significant
comments.
Colorado has developed rules and regulations for Siting of Hazardous Waste
Disposal Sites. These establish siting criteria for the location and design
of hazardous waste disposal sites that are reasonalby related to the
¦protection of the public health, safety and the environment. These criteria
~rd ¦: 5='J ni rjcal government siting cecis ic;is .
Additionally, Technical Guicelines on Siting of Hazardous Waste Disposal
Sites has been developed by the Health Department. These guidelines provide
applicants for hazardous waste sites, local government officials and the
public with a broad understanding of the types of information which the Health
Department believes is necessary to demonstrate that a particular area is
geotechnically suitable for the disposal of hazardous waste.
FACILITY ADD SITE OWNERSHIP OPTIONS
INTRODUCTION
Because of high entry costs, high risks and strict regulations, ownership
of off - site facilities may be limited to large private firms or public
entities. State legislatures are beginning to consider who should own and
operate management facilities. This section will discuss the advantages and
disadvantages of private and public ownership and how the state may implement
the decisions.
Private Ownership - Private industry has advanced technology and business
management expertise. Bond underwriters and pollution control financing
authority directors have suggested that traditional financing may be difficult
to obtain due to the high risks associated with waste management.
Consequently, states might be faced with having to provide incentives to
encourage private development. This may be especially true in states that do
not produce large quantities of waste. Incentives that have been discussed
include the creation of a comprehensive state hazardous waste plan, developing
a siting process, and forcing generators to use approved facilities.
Providing financial inducements is another action the state might pursue.
One type of financial assistance is a loan guarantee plan, where the state
would guarantee to meet payments if the private firm defaulted. This
financial incentive, which would make funds available to a private developer,
would encourage facility construction. Another method of financial assistance
is industrial development revenue bonds. These bonds have been traditionally
used to help a private firm finance its own facility at lower interest rates.
Another bonding method is issuance of pollution control bonds. Other forms of
financial assistance include favorable tax structures and subsidies.
Public Ownership - The alternative to privately - owned management
facilities involves public ownership. A state, local government or some form
of public benefit corporation, may own either the facility or the land.
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Public ownership of the land and the facility may ensure perpetual care of the
facility, reduce public opposition to its location and ensure that specific
management goals are met. Methods for financing public ownership include
general obligation bonas issued by the state or local government, project
revenue bonds, and state authority bonds. General obligation bonds, backed by
che fij !1 fa 1 ch and credit of the state, are the trs-aitional methods of
financing public works projects. However, tnis would require the state to use
a portion of its bonding capacity, forcing other projects to be postponed.
Project revenue bonds are another financing vehicle available to publicly -
owned facilities. These bonds are repaid solely from revenue generated by the
project. State authority or coirmission bonds are another option available
rs state ieg is 1 a•:ien enables the ownership agency to •• nojr debt ana tj
;ssl;c notes and bonds. These bonds are the obligation of the ownership
agency, ana debt services are paid out of the total pool of revenues and
monies available to the agency.
If the state decides to own hazardous waste management facilities, two
methods of operation are available. The state may design and operate the
facility, which would provide substantial public control. The state must
ensure that the agency empowered to operate the facility has the technical and
financial expertise to manage the facility. The other option is to contract
with a private firm to operate the facility.
Two methods are available for private operation. One, where the state
designs and builas the facility and contracts for its operation, allows for
extensive state control over methods of operation. The alternative to this
approach is for the state to own the site and lease it to a private firm which
would then develop and operate the facility.
STATE ACTION
The Colorado law allows both private and public ownership of hazardous
waste disposal sites. It also allows any governmental unit to contract for
the operation of a site provided the contract is awarded on a competitive bid
basis.
Local governments may levy a hazardous waste disposal site tax in addition
to any other tax authorized by law and place the proceeds in a hazardous waste
disposal site fund. This fund can only be appropriated to pay the cost of
land, labor, equipment and services needed in the operation of county or
municipal hazardous waste disposal sites. The local government is also
authorized to collect service charges from users of county or municipal sites
for the purpose of financing the operations at those sites.
In the case of privately owned or operated hazardous waste disposal sites,
an annual fee, based on the actual direct cost, can be charged by the local
government unit. Actual direct costs are identified as covering the costs of
the increased burden on county or municipal services. The fee cannot exceed
1% of the annual gross revenue of the site.
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MUNICIPAL AND COUNTY RIGHTS AND RESPONSIBILITIES
C'Z.i I " i C A ' I Gi~ Chi iGi'lA I I Cm rPP'_i.U«i IOi'J
The board of county cctnTii ssioners or the governing body of the
municipality by resolution or ordinance establish a fee of not more than five
thousand dollars which shall accompany the applicacion. The clerk of the
county or c icy m 51 promptly notify one county commissioners and the governing
GGGy of any other county or inunicipality within twenty rniles or the proposed
site.
The local government unit may request a finding of fact from the state
nealth cscarcment. This finding will determine -iieths'" tre site anc )oe"ati-:n
c.'Ojcict can coinpiy with the rules ana regulations ror siting o~ haiirtCLiS
waste cisposai sites promulgated by the 3oara 10-21-31.
The application must be considered at a public meeting after proper
notice. The notice shall be published in a newspaper having general
circulation in tne region in which the proposed waste disposal site is located
at least ten but no more than thirty days prior to the date of the hearings.
It must state the time ana place of the hearing and shall state that the
matter to be considered is the applicant's proposal for a hazardous waste
disposal site.
The board of county commissioners or the governing body of the
municipality may deny an application for a certificate of designation only
upon a finding of one or more of the following factors:
a) The state health department has made a finding of fact that the
site could not be designed and operated in compliance with appli-
cable regulations.
b) The site does not conform to local land use plans, policies or
regul ati o.ns.
c) The site would pose a substantial threat to the safety of the public,
taking into consideration;
1) The density of population in areas neighboring the site.
2) The density of population adjacent to delivery roads to the site;
3) The risk of accidents during the transportation to or at the site.
a) The site does not conform to the criteria established in the rules and
regulations promulgated by the state board of health.
The award or denial of the certificate of designation is subject to
judicial review in the district court for the judicial district in which the
site is proposed to be located.
If the certificate of designation is approved by the local government
unit, no operations may begin until a permit is obtained from either the
federal or the state government.
Certificate of Designation
Each certificate snail:
1) identify the general types of waste which may be accepted or which
shall be rejected;
2) be displayed in a prominent place at the site;
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3) provide Tor a specified term and conditions for renewal and provide
for modification upon the request of trie operator or a finding by
the local government units that a substantial threat to the public
health or safety exists;
4) provide such conditions as may reasonably be necessary for safe oper-
ations;
5) orovide it cannot be jold, assigned or otherwise transferred without
prior approval by the local government.
Hazardous Waste Site Operations
I: is tne responsioi 1 i ty cf the EPA ana/or tne state to roriitor the site
dPG assure u is being operatea in compliance witn the p«ri~:t '.-/inch was
granted lo the site operators.
The cost of the site monitoring is to be covered by a fee, based on the
quantity and degree of hazard, which will offset actual reasonable costs for
such facilities. The fee is charged to the facility operator and is placed in
the hazardous waste service fund for use by the Colorado Department of Health.
The Department of Health may authorize local control of their facilities.
They are required to make available to the local government unit in this case
a reasonable portion of the fees they have collected for this purpose. The
local government unit can declare the site a public nuisance if it is found to
be operated or maintained in a manner so as to violate any of the rules and
regulations of the state and have such violation enjoined by the district
court.
Costs
The local government is entitled to levy a fee on a hazardous waste
operation to cover its direct cost.l These costs are identified as including
but not limited to, the improvement of roads and bridges, fire protection, law
enforcement, monitoring and emergency preparation and response. This fee
cannot exceed 1% of the gross revenues each year.
If a site is acquired by the state for the express purpose of a hazardous
waste treatment, storage or disposal site, then the state must require a
payment in lieu of taxes to the local government having jurisdiction as
compensation for loss of valuation.
ABANDONED SITES PROGRAM
INTRODUCTION
The EPA estimates that nationally perhaps 32,000 to 51,000 waste disposal
sites may contain hazardous wastes. Several thousand of these sites may
contain significant quantities of hazardous wastes, and as many as 500 to 800
sites have been abandoned.
The term "abandoned site" refers to an inactive hazardous waste disposal
or storage facility whose owner cannot be identified or who has gone bankrupt
and consequently cannot afford the cost of cleanup, or a location where
illegal dumping has taken place. The cleanup of the site often becomes public
responsibility.
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Tna size ana scope of environmen-a": and puo 11; nealth prco'ems prei-i^tec
by abondoned sites is compounded by the incremental discovery of many small
abandoned sites. These sites, however, are not easily identifiable.
There is d is agreement about the procedure to use In identifying abandoned
si:as. it has been suggested chat the EPA uflne investigators traiiirG in
law enforcement techniques to identily sites, their contents, owners,
operators, and former owners and operators. Others have suggested the use of
aircraft reconnaissance, organized citizen search groups, rewards provided to
those who know of past chemical dumping, or partial immunity from prosecution
?or ccoo-irav ng " ncus cr: as . Another aporoach would mr~zt inaur ies
ccn c e m ire "ne i ^ dfiu i c c 3. -1 g n or f-azifGOus -n d s l 5 c'sjosa' Si ids ~o
generators, haulers, stcrers and disposers of hizdracas waste, anc :o sca^e
and local governments.
As abandoned sites are identified, technical, financial and legal
mechanisms must be considered in responding to the problems
The technical options for cleanup of these sites are contingent upon a
determination of the public health hazard presented by the site and the
chemical and physical conditions at the site. Consequently, appropriate
responses may vary on a site specific basis. Contaminated material can be
removed, certain chemicals at the site can be contained or removed for
incineration or reburial at a secure landfill, or groundwater monitoring
procedures can be instituted. While addressing the problems of chemical
cleanup, it may be necessary to relocate residents who might be adversely
affected by exposure to toxic substances. If contamination is irremedial, the
possibility of permanent relocation of residents and compensation for loss of
health and homes must be addressed.
As dangers are discovered, liability for cleanup costs must be fixed. In
cases where responsible parties cannot be identified, availability and access
to public monies to carry out these measures will require serious
consideration. The problem is that most sites cannot be traced to a
financially responsible party. Consequently, emergency cleanup costs become a
matter of public responsibility.
To provide a mechanism for cleanup, Congress passed the Comprehensive
Environmental Response Compensation, and Liability Act of 1980, referred to as
Superfund. Using the provisions of the Act, the Federal Government can design
and build the remedies for dumps that have presented health or environmental
dangers to local surrounding residents for years. The actions will be
financed with a 5 year SI.6 billion Trust Fund, built up primarily (27*) from
industrial taxes on oil and certain chemicals ana through Federal
appropriations (13%). Actions will also be financed by responsible parties
where they can be found and have the resources to clean up a site or a spill.
Questions have been raised concerning the source of contributions to these
funds. State legislatures may not desire to increase taxes to support a new
program because state budgets are currently straining to support existing
programs. Nevertheless, possible contributors to emergency cleanup funds
incluae direct state appropriations, taxes or fees assessed against hazardous
waste generators, or surcharges on disposal. Ultimately, these costs will be
passed on to consumers of those goods whose production creates hazardous by -
products.
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STATE ACTION
The Colorado Hazardous Waste Act requires "Any site proposed to contain
disposed hazardous wastes requiring long - term care shall net be eligible for
a p evil it by the department uniass it is state o-tnec proper cy cr ".he
application contains procedures to transfer that portion of the sice
specifically used for hazardous waste disposal to the state or federal
government upon closure of the site." This section of the law plus the
requirements for closure and post - closure care should protect the state from
"j vj re problems.
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