DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

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

6 CCR 1007-3

hazardous waste

Amendments adopted by the Solid and Hazardous Waste Commission on May 18, 2010:

Transfer Facility Amendments

1) Revise the Table of Contents for Part 263 by adding a listing for Subpart E to read as follows:

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Subpart E – Closure of a Transfer Facility
263.41	Closure. 

2) Revise Section 263.10 of Part 263 to read as follows:
§ 263.10 Scope.
(a) These regulations establish standards which apply to persons: transporting hazardous waste within Colorado, storing hazardous waste at a transfer facility located in Colorado, or transferring a hazardous waste from one container to another at a transfer facility located in Colorado.  In this Part 263, these persons are referred to as "transporters."
(b) Transfer facilities handling only CESQG waste are subject to the requirements of Subparts A, C, D & E of this Part.
(c) These regulations do not apply to on‑site transportation of hazardous waste by generators or by owners or operators of permitted hazardous waste management facilities or to hazardous waste management activities regulated under Parts 262, 264 or 265 of these regulations. 
(d) A transporter of hazardous waste subject to the manifesting requirements of Part 262, or subject to the waste management standards of 40 CFR Part 273, or subject to the requirements of Part 273 of these regulations, that is being imported from or exported to any of the countries listed in § 262.58(a)(1) for purposes of recovery is subject to this subpart and to all other relevant requirements of Subpart H of Part 262, including, but not limited to, § 262.84 for tracking documents.
(e) An attached statement of basis and purpose for these regulations has been adopted by the Board of Health, and is hereby incorporated by reference in these regulations pursuant to C.R.S. 1973, 24‑4‑103.

3) Revise Section 263.12 of Part 263 to read as follows:
§ 263.12 Transfer facility requirements.
(a) Notification:  Owners/operators of transfer facilities located in Colorado shall notify the Department, as part of the notification filed under Part 99 of these regulations, of the location and general description of the activities at each transfer facility.
(b) Applicability. A transporter who stores shipments of hazardous waste in containers meeting the requirements of § 262.30 at a transfer facility for a period of ten days or less is not subject to regulation under Parts 100, 264, 265, 266, and 268 with respect to the storage of those wastes, except as specifically referenced in Part 263 of these regulations. 
(c) General standards applicable to all transfer facilities.
(1)  Documentation of storage. The owner or operator of a transfer facility must maintain documentation to verify that the ten-day storage requirement of § 263.12(b) has been met.  Information used to make this demonstration may include hazardous waste manifests, log sheets, or other documentation showing the date of waste arrival and shipment from the transfer facility. This record shall include the generator’s name, the generator’s EPA identification number, and the manifest number.  For conditionally exempt small quantity generators (CESQGs) without an EPA identification number, the record shall include the name and address of the generator. This recordkeeping requirement applies to all hazardous wastes, including hazardous waste generated by CESQGs.
(2)  Weekly inspections/Record of inspection. The owner or operator shall conduct weekly inspections of all areas where containers are stored, and shall maintain written records of the results of the inspection, including, at a minimum, any evidence of container failure, the condition of secondary containment (if applicable) and remediation correcting any problems noted. The owner or operator shall maintain the written records of these weekly inspections for a period of at least three years from the date of inspection.  This requirement shall not apply to the interior of trucks or trailers where containers are stored, so long as those trucks or trailers were loaded in accordance with DOT regulations.
(3) Base/Floor Requirements. Loading docks, temporary container storage areas, and all areas where transfer of hazardous wastes occurs must have a base or floor that is smooth, free of cracks or gaps, and sufficiently impervious to contain leaks or spills until the spilled material is detected and removed.  This requirement shall not apply to trucks or trailers that were loaded in accordance with DOT regulations.  Any leaks or spills that do occur must be promptly cleaned up by the transfer facility operator.
(4)Truck/trailer storage requirements. For hazardous waste stored in trucks or trailers, the truck/trailer must be stored on a manmade surface that is capable of containing spills or releases to the ground.  Any leaks or spills that do occur must be promptly cleaned up by the transfer facility operator.

(5) Arrangements with local authorities. 
(i)  The transporter must contact local authorities to make arrangements to familiarize police, fire departments, local departments of health, and local emergency planning committees (LEPCs) with the layout of the transfer facility, NFPA hazardous class of hazardous waste handled at the transfer facility and associated hazards, places where transfer facility personnel would normally be working, entrances to roads inside the transfer facility, and possible evacuation routes. 
(ii) Transporters shall document attempts to make such arrangements, and shall document any case where State or local authorities decline to enter into such arrangements. 
(6) Security.  All transfer facilities must be adequately fenced or secured to control public access and prevent unauthorized access to areas of hazardous waste storage.  For a truck/trailer parked at a transfer facility that has no 24-hour surveillance system or artificial or natural barrier, the truck/trailer must meet the placarding requirements of 49 CFR Part 172 and the hazardous waste must be secured (i.e., locked) or the hazardous waste must be transferred to a secured area of the facility to prevent unknowing entry and minimize unauthorized access.  
(7) Signage.
(i)  A sign with the legend, "Danger – Unauthorized Personnel Keep Out," must be posted at each entrance to the active portion of the transfer facility, and at other locations, in sufficient numbers to be seen from any approach to this active portion of the facility.  The legend must be written in English and in any other language predominant in the area surrounding the facility and must be legible from a distance of at least 25 feet.  For storage of hazardous waste on trucks or trailers, the truck/trailer must meet the applicable placarding requirements of 49 CFR Part 172.
(ii) Existing signs with a legend other than "Danger – Unauthorized Personnel Keep Out" may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous.
(8) Emergency preparedness, prevention, and response. Transfer facility owners and operators shall comply with the following emergency planning and response requirements:
(i) At all times during which hazardous wastes are temporarily stored at the transfer facility there must be an emergency coordinator or a trained designee who is either on the premises or on call and available to respond to an emergency by reaching the facility within a short period of time. The emergency coordinator shall coordinate all emergency response measures specified in § 263.40 of these regulations.
(ii) The portion of the transfer facility where hazardous waste is stored or transferred must be equipped with the following, unless none of the hazards posed by the storage/transfer of hazardous waste could require a particular kind of equipment specified below:
(A) A device, such as a telephone (accessible near the waste storage area) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or local emergency response teams;
(B) Firefighting systems appropriate to the hazards, such as portable fire extinguishers, water at adequate volume and pressure to supply water hose streams, foam producing equipment, automatic sprinklers, water spray systems, or other fire control equipment using inert gas or dry chemicals; and
(C) Spill control, first aid and safety equipment appropriate to the hazards.
(iii) All communications systems, fire protection equipment, and spill control equipment, where required, must be tested and maintained as necessary to assure their proper operation in time of emergency.
(iv)  The transfer facility owner or operator shall post the following information at the facility:
(A) The name and telephone number of the emergency coordinator;
(B) Location of fire extinguishers and spill control material, and, if present, fire alarm; and
(C) The telephone number of the fire department, unless the facility has a direct alarm.
(d) A transporter of hazardous waste who mixes hazardous wastes of different applicable DOT shipping descriptions by placing them within a single container at a transfer facility located in Colorado must:
(1) Make a hazardous waste determination of the resulting waste mixture pursuant to § 262.11;
(2) Comply with the manifest requirements of §§ 262.20, 262.21, 262.22, and 262.23 (in addition to the requirements of §§ 263.20 and 263.21) with regard to the resulting waste mixture;
(3) Comply with the pre-transport packaging, labeling, marking, and placarding requirements of §§ 262.30, 262.31, 262.32, and 262.33 with regard to the resulting waste mixture; and
(4) Comply with the recordkeeping and reporting requirements of §§ 262.40 and 262.42 (in addition to the requirements of § 263.22) with regard to the resulting waste mixture.
(e) A transporter of hazardous waste who mixes hazardous wastes of different applicable DOT shipping descriptions by placing them into a single container at a transfer facility located in Colorado must, with regard to the containers into which the resulting waste mixture is placed, comply with the following:
(1) The transporter must use a container made of or lined with materials which will not react with, and are otherwise compatible with, the hazardous wastes to be mixed, so that the ability of the container to contain the resulting waste mixture is not impaired.
(2) If a container holding the resulting waste mixture is not in good condition, or if it begins to leak, the transporter must transfer the resulting waste mixture from this container to a container that is in good condition.
(3) The container holding the resulting waste mixture must always be closed during storage, except when it is necessary to add or remove waste.  The container holding the resulting waste mixture must not be opened, handled, or stored in a manner which may rupture the container or cause it to leak.
(4) Incompatible wastes, or incompatible wastes and materials (see Appendix V of Part 265 for examples) must not be placed in the same container, unless § 265.17(b) is complied with.  Hazardous waste must not be placed in an unwashed container that previously held an incompatible waste or material (see Appendix V of Part 265 for examples), unless § 265.17(b) is complied with.  A storage container holding a hazardous waste that is incompatible with any waste or other materials stored nearby in other containers, piles, open tanks, or surface impoundments must be separated from the other materials or protected from them by means of a dike, berm, wall or other device.
Note to paragraph (d)(4): Re-use of containers in transportation is governed by U.S. Department of Transportation regulations and the Colorado Public Utilities Commission, including those set forth in 49 CFR  § 173.28.
(5) The transporter shall manage all hazardous waste placed in a container in accordance with the requirements of Subpart CC of Part 265.
(f) A transporter of hazardous waste who mixes hazardous wastes of different applicable DOT shipping descriptions by placing them into a single container at a transfer facility located in Colorado must, with regard to that portion of the transfer facility where the mixing occurs, comply with the following:
(1) The portion of the transfer facility where the mixing occurs 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 transfer facility is not provided with fire protection services by a fire protection district or municipal fire department, the portion of the transfer facility where mixing occurs must be maintained and operated in accordance with a plan for providing its own fire protection and prevention which has been approved by the Department and which meets the following requirements:
(i) The plan shall provide for adequate fire protection and prevention for the portion of the transfer facility where mixing occurs based upon the location and construction of the transfer facility, and based upon the kinds and amounts of hazardous wastes mixed and stored at the transfer facility.
(ii) The plan shall specify the required equipment and the required availability and training of transfer facility personnel.
(iii) The plan shall be based upon the provisions of the Uniform Fire Code, the National Fire Code, the Uniform Building Code, and 29 CFR, Chapter XVII, part 1910, subpart L, Fire Protection.
(iv) Before submitting the plan to the Department for review, the transfer facility shall have the plan reviewed and approved by a registered professional engineer experienced in fire protection.
(2) The portion of the transfer facility where mixing occurs must be equipped with the following, unless none of the hazards posed by the mixing could require a particular kind of equipment specified below:
(i) A device, such as a telephone (accessible near the area where the mixing occurs) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or State or local emergency response teams;
(ii) Portable fire extinguishers, fire control equipment (including special extinguishing equipment, such as that using foam, inert gas, or dry chemicals), spill control equipment, and decontamination equipment; and
(iii) Water at adequate volume and pressure to supply water hose streams, or foam producing equipment, or automatic sprinklers, or water spray systems.
(3) All communications systems, fire protection equipment, spill control equipment, and decontamination equipment, where required, must be tested and maintained as necessary to assure its proper operation in time of emergency.
(4) If there is ever just one employee on the premises while the mixing occurs, he/she must have access to a device, such as a telephone (accessible near the area where the mixing occurs) or a hand-held two-way radio, capable of summoning external emergency assistance.
(5) While mixing occurs, the transporter must maintain aisle space within the transfer facility to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to the area of mixing in an emergency.

4) Add Subpart E to Part 263 to read as follows:
Subpart E – Closure of a Transfer Facility
§ 263.41  Closure.
(a) The owner or operator of the transfer facility shall ensure that the facility will be closed in a manner which satisfies the closure performance standards of § 265.111 and the decontamination standards of § 265.114. All closure activities must be completed within 90 days after receiving the final volume of hazardous wastes at the facility.
(b) Notification and certification.  Within 60 days of completion of closure of the transfer facility, the owner or operator must submit to the Department, by registered mail, a certification that all hazardous wastes have been removed from the facility, properly disposed of, and that the facility has been closed  in accordance with the performance standards of § 265.111 and § 265.114.

5) Add Section 8.73 {Statement of Basis and Purpose for the Rulemaking Hearing of May 18, 2010} to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of May 18, 2010
8.73 	Basis and Purpose.
These amendments to 6 CCR 1007-3, Part 263 are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.
Transfer Facility Amendments
These amendments to Part 263 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) revise the existing standards applicable to transporters of hazardous waste in Colorado by amending the requirements applicable to transfer facilities located in the state.
These amendments were developed as part of a review of the Part 263 regulations conducted by the Hazardous Materials and Waste Management Division (the “Division”) for the purpose of updating and improving the existing regulations that apply to transfer facilities in Colorado in order to ensure protection of public health and safety and the environment. Input from key stakeholders, including eight transfer facilities and representatives of the Colorado Emergency Planning Commission and the South Metro Fire Rescue Authority were also incorporated into the development of these regulations.
The Division’s review of the Part 263 regulations was initiated by a request from the Solid and Hazardous Waste Commission following a February 2009 briefing regarding a fire that occurred on October 5, 2006 at the Environmental Quality Co. (EQ) hazardous waste transfer facility in Apex, North Carolina.   Mr. William Wright of the United States Chemical Safety and Hazard Investigation Board (CSB) provided a presentation on the North Carolina Apex Incident at the February 17, 2009 Commission hearing. The CSB conducted a formal investigation into the fire, and published a case study, Fire and Community Evacuation in Apex, North Carolina (2007-01-I-NC, April 16, 2008, which is available online at http://www.csb.gov/assets/document/EQFinalReport.pdf).  The amendments in this rulemaking upgrade transfer facility requirements so as to prevent or enable more effective response to a similar incident in Colorado.  In general, transfer facilities are lightly regulated under the hazardous waste regulations; these amendments require certain operational improvements at transfer facilities without creating an undue regulatory burden.  
The major amendments being adopted at this time include:
1)	Revising the scope of the Part 263 Regulations in § 263.10(a) to specify that the Part 263 standards apply to all persons: a) transporting hazardous waste within Colorado; b) storing hazardous waste at a transfer facility located in Colorado; or c) transferring a hazardous waste from one container to another at a transfer facility located in Colorado. 
2)  	Adding a new paragraph (b) in § 263.10 to specify that transfer facilities handling only conditionally exempt small quantity generator (CESQG) waste are subject to the requirements of Subparts A (General Requirements), C (Hazardous Waste Discharges), D (Spills at Transfer Facilities) and  E (Closure of a Transfer Facility).  Transfer facilities handling only CESQG waste are not subject to the manifest requirements in Subpart B.
3)	Revising § 263.12 to specify the general standards that are applicable to all transfer facilities, and adding further clarification and new requirements regarding:
a)   Documentation of storage.  The owner or operator of a transfer facility must maintain documentation to verify that the ten-day storage requirement of § 263.12(b) has been met.  
b)   Weekly inspections/record of inspection.  The owner or operator must conduct weekly inspections of all areas where containers are stored, and maintain written records of the results of the inspection, including, at a minimum, any evidence of container failure, the condition of secondary containment (if applicable) and remediation correcting any problems noted.  The owner or operator will maintain the written records of these weekly inspections for a period of at least three years from the date of inspection. This requirement shall not apply to the interior of trucks or trailers where containers are stored, so long as those trucks or trailers were loaded in accordance with DOT regulations.
c)   Base/floor requirements.   Loading docks, temporary container storage areas, and all areas where transfer of hazardous wastes occurs must have a base or floor that is smooth, free of cracks or gaps, and sufficiently impervious to contain leaks or spills until the spilled material is detected and removed.  This requirement shall not apply to trucks or trailers that were loaded in accordance with DOT regulations.  
d)	Truck/trailer storage requirements.  For hazardous waste stored in trucks or trailers, the truck/trailer must be stored on a manmade surface that is capable of containing spills or releases to the ground.  Any leaks or spills that do occur must be promptly cleaned up by the transfer facility operator.
e)   Arrangements with local authorities.  The transporter must contact local authorities to make arrangements to familiarize local first responders with the layout of the transfer facility, NFPA hazardous class of hazardous waste handled at the transfer facility and other relevant information. Transporters shall document attempts to make such arrangements, and shall document any case where State or local authorities decline to enter into such arrangements.
f)    Security.   All transfer facilities must be adequately fenced or secured to control public access and prevent unauthorized access to areas of hazardous waste storage.  For a truck/trailer parked at a transfer facility that has no 24-hour surveillance system or artificial or natural barrier, the truck/trailer must meet the placarding requirements of 49 CFR Part 172 and the hazardous waste must be secured (i.e., locked) or the shipment of hazardous waste must be transferred to a secured area of the facility to prevent unknown entry and minimize unauthorized access. 
g)    Signage.  A sign with the legend, "Danger – Unauthorized Personnel Keep Out," or a similar warning, in English and any other language predominant in the area, must be posted around the facility, and must be legible from a distance of at least 25 feet. For storage of hazardous waste on trucks or trailers, the truck/trailer must meet the applicable placarding requirements of 49 CFR Part 172.   
h)    Emergency preparedness, prevention, and response.  Expansion of emergency coordinator, communication, and fire and spill related requirements previously applicable to some transfer facility owners and operators to all such facilities.  
4)	Adding closure requirements for transfer facilities as § 263.41 in Subpart E of Part 263.  The lack of closure requirements in previous regulations could create confusion as to the obligations of transfer facility owners.  The closure requirements include reference to § 265.111 (Closure performance standard) and § 265.114 (Disposal or decontamination of equipment, structures and soils). All closure activities must be completed within 90 days after receiving the final volume of hazardous wastes at the facility. Within 60 days of completion of closure of the transfer facility, the owner or operator must submit to the Department, by registered mail, a certification that all hazardous wastes have been removed from the facility, properly disposed of, and that the facility has been closed in accordance with the performance standards of § 265.111 and § 265.114.
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.