DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Solid and Hazardous Waste Commission
Hazardous Materials and Waste Management Division
 
6 CCR 1007-2 Part 1
STATEMENT OF BASIS AND PURPOSE
AND SPECIFIC STATUTORY AUTHORITY FOR
 
Revision to Regulations Pertaining to Solid Waste Sites and Facilities (6 CCR 1007-2, Part 1) – Addition of Section 19, Administration of the Closed Landfill Remediation Grant Program

(Adopted by the Solid and Hazardous Waste Commission on May 21, 2024)

Statutory Authority
These regulations are promulgated pursuant to the authority granted to the Solid and Hazardous Waste Commission (the “Commission”) in Section 30-20-124, C.R.S. (the “Statute”), created by House Bill (HB) 23-1194, and passed by the legislature in 2023. These proposed regulations were developed in response to HB 23-1194 in which the General Assembly created the closed landfill remediation grant program (the “Grant Program”) and directed the Commission to promulgate rules for the administration of the Grant Program by June 1, 2024.
Overview of the Statute
The Grant Program was created to assist local governments in paying for closed landfill remediation and maintenance costs for the closed landfills they own. HB 23-1194 effectively codified the Grant Program in 30-20-124, C.R.S., creating the Grant Program fund. The Statute directs the Colorado Department of Public Health and Environment (the “Department”) to oversee the administration of the fund.  Additionally, HB 23-1194 directs the Commission to promulgate rules for the administration of the Grant Program, specifying uses of Grant Program funds and the minimum criteria that must be included in the rules. Another key provision of the Statute is the creation of an advisory committee (the “committee”) to review grant applications and advise the Department on the award of grants and the evaluation of grant applications. Per the Statute, the Grant Program funding is only available to local governments that own a closed landfill.
Overview of the Proposed Regulations
A new Section 19 is being added to the Regulations Pertaining to Solid Waste Sites and Facilities (6 CCR 1007-2, Part 1) (the “Regulations”) to meet the requirements of HB 23-1194 and the Statute. The intention in drafting Section 19 is to keep the rules as flexible and inclusive as the Statute and available funding allows.  The Department does not wish to unnecessarily limit the conditions for which grant funding might be available, beyond such limitations already set in the Statute. Section 19 contains criteria for applicant eligibility, cost eligibility and application evaluation. Section 19 also includes procedures for application submittal, application review, and grant award and grant recipient reporting requirements. Section 19 contains all of the elements required in the Statute.  
The Statute establishes minimum requirements for the Grant Program. The Statute requires the Commission and the Department to give priority to grant applications that concern mitigating or remediating actual risk. The Statute also requires that the Grant Program rules include criteria for evaluating grant applications and awarding grants. The Statute does not define “actual risk,” therefore, in drafting Section 19, the Department identified the need to add definitions in Section 19.1.3 describing what constitutes high and medium risk to provide clarity on the types of conditions at closed landfills that would be given priority for grant funding in the event that the amounts of funds requested in applications exceed available grant funds. Other additions for providing priority for grant funding include proximity to a disproportionately impacted community and multi-year projects that have previously received approval or partial approval of applications.
The Statute describes uses of Grant Program funds, and Section 19 includes and expands on these criteria in describing “cost eligibility criteria.”  Having cost eligibility criteria in Section 19 will allow the Department and the committee to review applications more effectively. In drafting Section 19, the Department identified the need to add definitions in Section 19.1.3 for eligible costs and for reasonable costs. A significant addition to Section 19.3, the Cost Eligibility Criteria, is to allow for testing of potentially affected drinking water sources in proximity to a closed landfill. Other significant additions to Section 19.3 include costs to design, acquire, install, startup, operate, and maintain equipment used for remediation, including monitoring, and costs to restore or replace a private or public potable water supply. While not specified in the Statute, the Department maintains such costs are consistent with the purposes of the Statute relative to identifying and remediating risks from closed landfills. Similarly, the word “mitigation” was added to multiple subsections of Section 19.3 in recognition of the fact that reducing the exposure attributable to a groundwater release from a closed landfill can be an important factor in achieving risk reduction and is therefore consistent with the purposes of the Statute.
With respect to the committee operations, the Department has included some basic operational parameters in Section 19 consistent with the Statute. Examples of these are the minimum frequency of committee meetings, publishing the meeting schedule online, an initial Department review for completeness prior to applications being referred to the committee, the opportunity for applicants to present at committee meetings, and the requirement for the committee to provide recommendations to the Department. These are deemed to be basic and necessary procedures to facilitate committee operations. Nevertheless, Section 19 leaves sufficient flexibility such that the committee may develop additional policies and operating procedures as it sees fit.
With respect to the Department operations, the Department included some basic operational parameters in Section 19 consistent with the Statute. Examples of these include a timeline and frequency for publishing a request for applications for the grant cycle (Section 19.5.1), how application results are communicated, how grant amounts are determined (Section 19.6.4), and how grant funds are paid to the grant recipient (Section 19.7). 
Stakeholder Process
In response to HB 23-1194, the Department initiated the process to include administration of the Grant Program in the Regulations. The Department held three stakeholder meetings on Section 19, which were well attended. These meetings were held on January 22, 2024, February 5, 2024 and March 18, 2024. During these meetings, the Department presented background information about the Grant Program, proposed Section 19, developed revisions to Section 19, and engaged with a variety of different stakeholders, including local government officials, elected officials, and consultants. In conjunction with these stakeholder meetings, the Department solicited three rounds of written comments on Section 19 and made multiple revisions of Section 19 in response to stakeholder comments received.
Issues Encountered During the Stakeholder Process
Applicant Opportunity to Present to the Committee
The original Section 19 left it to the discretion of the committee on a per-application basis as to whether the applicant would be asked to present information during committee meetings. The Grant Program is for the benefit of local governments that own closed landfills, and these entities represent a broad spectrum of financial ability, ranging from small towns of a few hundred residents up to large well-resourced counties and cities. The Department was averse to drafting the rule in such a way as to mandate that all applicants are required to present to the committee, out of concerns that such a requirement could put under-resourced communities at a disadvantage. However, a local government stakeholder commented that they felt it was important to have the opportunity to present their application directly to the committee. After receiving the same comment on the first two versions of Section 19, the Department has revised Section 19 to provide an unequivocal opportunity for applicants to present to the committee. Section 19.6 is worded so that presenting to the committee is not a mandate, but an opportunity that applicants can make use of if they choose to do so, and is an equal opportunity for all applicants.
A similar comment was provided during a stakeholder meeting asking why participation by an applicant at the committee meeting is not mandatory. Reasons the Department doesn’t believe attendance should be mandatory include: Local governments may have limited resources and may not be able to attend the meeting; there may be circumstances in remote areas that prevent an applicant from attending; there may be costs for having a "representative" available such as having a consultant present; there may be no questions for applicants and the committee may plan to approve the application in its entirety; and requiring attendance at the committee meetings would be a requirement of applicants above and beyond what the Statute requires and is not consistent with the purpose of the Statute, which is intended to help local governments with limited resources and not to add resource-related barriers to participation in the program. In cases where an applicant is asked to be present to answer questions the committee has regarding the application and the applicant does not attend, the committee would ultimately have to decide if enough information exists to make a recommendation for funding.
Reasonableness of Costs
A stakeholder provided comments urging the Department to include detail on what constitutes a reasonable cost. The stakeholder proposed a definition of the term “reasonable cost”, and in response, the Department largely accepted that suggestion, with minor wording changes.
Timelines and Procedures
A stakeholder provided comments indicating the level of detail provided in Section 19.5 for Application Submittal was not sufficient per the Statute. The Statute requires the rules to include timelines and procedures by which an eligible local government may apply for a grant. The Department believes that specific details about timelines and procedures are more appropriate in the details specified for each individual grant cycle as the Grant Program processes develop to accommodate local government’s needs, and will be communicated in requests for applications. The Department revised Section 19.5 to include an initial date and frequency to release requests for applications, specifying when applications can be received, and that complete applications must be submitted on the form(s) and template(s) provided in the request for applications on or before the due date as indicated in the request for applications for the grant cycle.
Department Reporting to the Committee
A stakeholder provided comments urging the Department to modify the rules to state that the Department will provide a detailed, comprehensive report to the committee for each grant application for transparency and public awareness. The Department did not include the Department’s preparation of detailed, comprehensive reports in Section 19 because the committee is required to review the applications per the criteria set forth in the rules and provide recommendations to the Department. The rules require the Department to ensure the committee receives a complete application. The Department will consult with the committee during committee meetings. During the committee meeting, the Department expects to provide details the committee will need about the funds available and details about the complete applications to help streamline the discussion. This is not a detailed report on each application, but rather a summary of the objective requirements in the rules (for example, do the costs meet eligibility criteria). The Department does not evaluate on behalf of the committee. If there is a difference between the committee recommendations and the Department’s decision to award grant funds, the Department will specify the reason for the difference per Section 19.6.1(A). 
Alternatives Considered and Why Rejected
No other regulatory alternatives were considered.
Cost Benefit Analysis
A cost benefit analysis will be performed if requested by the Colorado Department of Regulatory Agencies.