6 Colo. Code Regs. § 1007-2-19

Current through Register Vol. 47, No. 11, June 10, 2024

Section 6 CCR 1007-2-19 - [Effective 6/30/2024] Administration of the Closed Landfill Remediation Grant Program

19.1General Provisions

19.1.1Purpose

These regulations are promulgated to establish rules for administration of the closed landfill remediation grant program pursuant to C.R.S. 30-20-124. The closed landfill remediation grant program is intended to provide grants to eligible local governments to help pay the costs of environmental remediation and mitigation efforts for and management of closed landfills that are owned by the eligible local governments in order to protect the public health, safety, and welfare and the environment.

19.1.2Definitions

Terms in these regulations have the same definitions as those found in Section 1.2. In addition, unless the context otherwise requires, under this Section 19:

"Advisory Committee" means the closed landfill remediation grant program Advisory Committee created in the Department by C.R.S. 30-20-124.

"Applicant" means an eligible local government that submits an application.

"Application" means an application submitted to the Department to be eligible to receive grant funding through the closed landfill remediation grant program.

"Cleanup program" means an investigation or remediation conducted and funded pursuant to a state or federal law or program other than 6 CCR 1007-2, Part 1, the Regulations Pertaining to Solid Waste Sites and Facilities, such as:

(A) The federal "Comprehensive Environmental Response, Compensation, and Liability Act of 1980", 42 U.S.C. sec. 9601 et seq., as amended;

(B) The brownfields program of the federal Environmental Protection Agency and the Department;

(C) A federal radiation control program such as the "Uranium Mill Tailings Radiation Control Act", 42 U.S.C. sec. 7901 et seq., as amended;

(D) Article 11 of title 25 concerning radiation control;

(E) Article 15 of title 25 concerning hazardous waste; or

(F) The federal "Resource Conservation and Recovery Act of 1976", 42 U.S.C. sec. 6901 et seq., as amended.

"Closed landfill" means a landfill that no longer accepts new waste for disposal.

"Eligible costs" means costs necessary to assess, mitigate, and remediate risks posed by the local government's closed landfill, costs to comply with applicable law, and costs for meeting the compliance requirements of any standing administrative order negotiated with, or issued by, the Department.

"Eligible local government" means a local government that owns a closed landfill that:

(A) Was formerly but is no longer operated by the local government or by any state or federal agency and for which the local government is solely financially responsible for closure and post-closure care;

(B) Is not subject to any investigation or remediation pursuant to a cleanup program; and

(C) Does not have any fully funded private sector financial assurance mechanism in place that adequately resolves the public health and environmental risks associated with the landfill.

"Grant program" means the closed landfill remediation grant program created by C.R.S. 30-20-124.

"High risk" means one or more of the following conditions:

(A) Groundwater concentrations greater than applicable groundwater standards in a well used to provide water for human consumption;

(B) Indoor air concentrations greater than applicable air screening levels within an occupied building;

(C) Methane in buildings greater than 25% of lower explosive limit (1% by volume in air for methane);

(D) Surface water concentrations greater than applicable surface water standards;

(E) Waste mass instability or final cover system instability that threatens surface water or infrastructure such as roads, utilities, or buildings; or

(F) Exposed waste and/or inadequate run-on or run-off control that threatens surface water or infrastructure such as roads, utilities, or buildings.

"Local government" means a home rule or statutory city, county, or city and county.

"Low risk" means conditions not considered high or medium risk.

"Medium risk" means one or more of the following conditions:

(A) Groundwater concentrations greater than applicable groundwater standards that extends beyond the point of compliance;

(B) Soil vapor concentrations greater than applicable air screening levels that extend beyond the point of compliance or are confirmed beneath buildings;

(C) Methane at the point of compliance greater than 100% of the lower explosive limit (5% by volume in air for methane);

(D) Surface water is at risk of being impacted based on distance or pathways from the closed landfill to the nearest surface water body;

(E) Waste mass and/or final cover system is considered unstable; or

(F) Significant erosion and/or settlement compromises the integrity of the final cover system.

"Reasonable costs" means costs that are justifiable, reflect industry standards, are competitive, and demonstrate efficient use of grant funding while supporting the purpose of the grant program.

19.2Applicant Eligibility Criteria

Applicants must meet the definition of an eligible local government in Section 19.1.2 to be considered for application approval. Applicants who have applied and/or received application approval for the grant program in the past are eligible to apply for the grant program repeatedly.

19.3Cost Eligibility Criteria

An eligible local government that receives a grant award from the grant program must use the grant award only to pay for reasonable, eligible costs (as defined in Section 19.1.2), including retaining private third parties such as consultants and contractors to advise the eligible local government and to perform tasks, and also including local government staff time directly and exclusively attributable to the activities listed below, necessary to:

19.3.1 Take emergency, preventive, or corrective actions at a closed landfill;

19.3.2 Identify and test affected or potentially affected water sources at the point of compliance and drinking water sources which may be impacted by the landfill;

19.3.3 Investigate, design, and implement appropriate mitigation and remediation actions in accordance with applicable regulations, standards, and orders that are subject to Department review;

19.3.4 Develop, prepare, and implement plans such as work plans, implementation plans, monitoring plans, contingency plans, community relations plans, materials management plans, and post-closure plans for Department review, including the Department's document review and activity fees;

19.3.5 Design, acquire, install, startup, operate and maintain equipment used for remediation or mitigation, including monitoring;

19.3.6 Restore or replace a private or public potable water supply;

19.3.7 Develop and implement a plan for public involvement in the development, implementation, modification, or expansion of mitigation or remediation measures;

19.3.8 Perform post-closure care activities, including the use of institutional and engineering controls to maintain site conditions that prevent nuisance conditions and remain protective of public health, safety, and welfare and the environment, and post-closure monitoring and reporting;

19.3.9 Fulfilling requirements per the fully executed contract between the grant recipient and the State of Colorado such as attending check-in calls with the Department, developing progress reports for submittal to the Department, attending site visits with the Department, or other contract-related requirements; or

19.3.10 Other costs identified by the Department as eligible, reasonable costs necessary to protect the public health, safety, and welfare and the environment.

19.4Application Evaluation Criteria

The following application evaluation criteria will be used by the Department and the Advisory Committee as safeguards to support the fair and equitable basis for application review; approval, partial approval, or denial of applications; and for determining grant award amounts:

19.4.1 Applicant eligibility criteria (Section 19.2);

19.4.2 Cost eligibility criteria (Section 19.3);

19.4.3 If the costs are associated with mitigation or remediation of a release of substance(s) to the environment that cause (A) through (D) under the definitions for high risk or medium risk in Section 19.1.2, the release that is the subject of the mitigation or remediation must be attributable to the closed landfill;

19.4.4 The Advisory Committee may develop or approve additional application evaluation criteria. Any additional application evaluation criteria will be provided in the Request for Application for the grant cycle;

19.4.5 In the event the amount of funds requested in pending applications exceed available grant funds, priority will be given to applications that demonstrate one or more of the following:

(A) Local governments subject to an existing compliance order for the closed landfill; or

(B) Closed landfills posing the greatest risk, where the Department will evaluate risk conditions based on information provided in the application considering:

(1) Remediation or mitigation that protects human health and the environment in a manner that makes efficient use of limited grant funding; and

(2) The local government's technical assessment of the actual risk posed to public health and the environment.

19.4.6 In the event the amount of funds requested in pending applications exceed available grant funds, priority may be given to applications that demonstrate one or more of the following:

(A) Local government resources:

(1) Local governments commit matching funds from other sources to pay for reasonable, eligible costs, considering the local government's ability to match funds; or

(2) Local governments have expenditures to-date in attempting to implement the remediation or mitigation that is the basis of their application, and amounts of those expenditures to-date.

(B) The closed landfill is in or near a disproportionately impacted community, as defined under C.R.S. 24-4-109 (2024), or

(C) Multi-year activities that have previously received approval or partial approval of applications.

19.5Application Submittal

19.5.1 The Department will publish a Request for Applications for the grant cycle at the Department's website on or before October 1, 2024, and at least one time per calendar year thereafter. The application may be received by the Department when the application window is open, as indicated in the Request for Applications for the grant cycle.

19.5.2 The applicant must submit a complete application on the form(s) and template(s) provided in the Request for Applications at the Department's website on or before the due date as indicated in the Request for Applications for the grant cycle.

19.6Application Review

19.6.1Department Initial Review:

(A) The Department will conduct an initial review of the application for completeness.

(B) If the Department's initial review indicates the application is complete, the Department will refer the application to the Advisory Committee. If the Department's initial review indicates the application is incomplete or if additional information or clarification is required, the Department will notify the applicant and include a summary of information necessary to continue the application review prior to Advisory Committee review.

19.6.2Advisory Committee and Department Review:

(A) The Advisory Committee must meet at least one time per calendar year, but may meet more frequently or as needed as determined by the Advisory Committee. The Advisory Committee must publish their meeting schedule online, available at the Department's website. Advisory Committee meetings are public meetings. The Department will notify applicants in advance whose applications will be considered at the meeting. While applicant participation in the Advisory Committee meetings is not mandatory, the Advisory Committee may ask questions of an applicant's representatives that are present at the meeting. Each applicant will have the opportunity to present their application to the Advisory Committee, subject to any limitations and guidelines established by the Advisory Committee.

(B) The Department will attend Advisory Committee meetings to consult with the Advisory Committee regarding the Advisory Committee's evaluation of applications.

(C) The Advisory Committee must review each grant application and provide its recommendation to the Department. The Advisory Committee may recommend partial application approval. The Advisory Committee's recommendation must describe how the Advisory Committee evaluated the application using the application evaluation criteria established in Section 19.4.

19.6.3Interview:

Before finalizing a decision to approve, partially approve, or deny an application, the Department will interview an official of the applicant eligible local government who is familiar with the closed landfill site that is the basis of the application.

19.6.4Determination of Approval, Partial Approval, or Denial and Grant Amount:

(A) The Department will issue a written decision approving, approving in part, or denying the application. The Department will notify applicants of application results. The Department may approve part of an application, or approve an application subject to conditions specified by the Department. In its decision, the Department will specify the following:

(1) The amount of approved costs;

(2) The circumstances, if any, under which a grant applicant may be required to demonstrate matching funds, including consideration for whether or not local governments are required to contribute a lower amount or percentage of matching funds than other local governments based on population, as determined pursuant to the most recently published population estimates from the State Demographer appointed by the Executive Director of the Department of Local Affairs;

(3) Denied costs and the reasons for the denial. The denial decision will identify the specific reasons why the application did not meet the application evaluation criteria or was considered a lower priority than other applications; and

(4) Reasons for differences between the Advisory Committee's recommendations and the Department's decision.

(B) The approved grant amount is determined based on the application evaluation criteria (Section 19.4). The Department may consider the remaining grant funding available and the application priority when determining approval, partial approval, or denial of grant amounts or in approving the duration of the grant period.

(C) The Department shall have final authority to approve, partially approve, or deny the applications based upon the documentation submitted or otherwise obtained by the Department.

(D) Department approval of the action(s) in the application shall not be considered a finding or guarantee of safety or effectiveness of the action(s).

(E) Nothing in this Section 19 shall be construed to abrogate or limit the immunity or exemption from civil liability of any agency, entity or person under any statute including the Colorado Governmental Immunity Act, Article 10 of Title 24 or C.R.S. 13-21-108.5 (2024).

19.7Grant Award and Grant Recipient Reporting Requirements

19.7.1 Subject to annual appropriation and the grant recipient's compliance with the contract between the grant recipient and the State of Colorado, grant funds will be paid to grant recipients from the closed landfill remediation grant program fund created by C.R.S. 30-20-124.

19.7.2 Grant recipient reporting requirements will consist of the reporting required per the contract between the grant recipient and the State of Colorado. The reporting requirements will be dependent on the grant recipient's approved scope of work, and the Department will communicate these reporting requirements, including applicable State of Colorado Fiscal Rule provisions, in the contract documentation.

6 CCR 1007-2-19

47 CR 11, June 10, 2024, effective 6/30/2024