6 Colo. Code Regs. § 1007-3-8.103

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

Section 6 CCR 1007-3-8.103 - Basis and Purpose

Statement of Basis and Purpose

Rulemaking Hearing of February 20, 2024

These amendments to 6 CCR 1007-3, Part 267 are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Amendments to Part 267 Subpart Q - Class B Firefighting Foam Containing PFAS

HB19-1279 amended C.R.S. 24-33.5-1234 to prohibit persons or fire departments from discharging or otherwise using Class B firefighting foam (PFAS AFFF) for training or for testing purposes. HB20-1119 amended C.R.S. 25-15-302 to require the Solid and Hazardous Waste Commission (SHWC) to establish a Certificate of Registration for any facility or fire department, or lessee subject to federal rules and regulations, that use or store PFAS AFFF. The Bill further amended C.R.S. 24-33.5-1234 to establish an exemption for certain testing activities which employ PFAS AFFF, so long as the testing activities were conducted in accordance with standards for capture and disposal of PFAS AFFF used for testing purposes and the person or fire department who conducted the testing activities had obtained a Certificate of Registration. Those standards were established and became effective on April 14, 2021 under the existing 6 CCR 1007-3, Part 267, Subpart Q. The exemption created by HB20-1119 was repealed effective January 1, 2023, rendering the existing 6 CCR 1007-3, Part 267, Subpart Q exemption language obsolete.

HB20-1119 amended C.R.S. 25-5-1309 to restrict the use of PFAS AFFF at Colorado public-use airports structures used for the storage or maintenance of aircraft beginning January 1, 2023. HB22-1345 further amended C.R.S. 25-5-1309, deferring the restriction to take effect January 1, 2024.

HB22-1345 also amended C.R.S. 25-5-1303.5 to require that persons who use PFAS AFFF not allow a release, contain PFAS AFFF and all associated waste during use, safely store all PFAS AFFF and all associated wastes, and report all uses and releases of the material to the Water Quality Spills Hotline.

Part 267 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) is being amended at this time to remove requirements which correspond to repealed statutory requirements found in C.R.S. 24-33.5-1234 and to add the current requirements of C.R.S. 24-33.5-1234, 25-5-1303.5, and 25-5-1309 to Subpart Q. The revised Subpart requires all persons who store or use one or more gallons of PFAS AFFF to comply with the requirements of the registration and certificate program, the restrictions surrounding certain uses of PFAS AFFF, the additional reporting requirements which pertain to self certification and water quality spills hotline reporting, capture requirements for the containment of finished PFAS AFFF during use, and the safe storage requirements for the storage of spent PFAS AFFF and all associated wastes. These amendments incorporate the exemption criteria created by HB22-1345 and found in 25-5-1303.5 for the use of PFAS AFFF as required or authorized by federal law or implemented as required for a military purpose. These amendments do not prohibit the use of PFAS AFFF for real-world Class B fire responses, nor do they establish requirements for persons using or storing Class B firefighting foams which do not contain PFAS. The proposed regulatory changes were developed utilizing a series of two stakeholder meetings at which comments were received from interested parties, discussed, and incorporated as appropriate. The group of stakeholders who participated in this process included fire departments, airports, and military personnel registered under the Subpart Q Registration and Certification Program, non-profit Colorado trade associations, international trade associations, members of local governments and utilities, and other interested individuals. Comments received in writing from individual stakeholders, on two separate drafts of the proposed revisions, were incorporated as well. The Department believes that all stakeholder concerns have been resolved to the extent possible.

Class B firefighting foams are used to put out fires involving Class B materials, which include gasoline, oil, and jet fuel. Class B foams can be categorized into two broad categories from a PFAS perspective: fluorinated foams that contain PFAS, like Aqueous Film Forming Foam (AFFF), and fluorine free foams. AFFF is usually created by combining foaming agents with fluorine surfactants. PFAS are the active ingredients in the fluorinated surfactants used in the foams and are typically contained in the foams at up to 3% concentrations, or 300,000 parts per million. When mixed with water and discharged, the foam forms an aqueous film that quickly cuts off the oxygen to a flame, extinguishing the fire, and stopping the fire from relighting.

PFAS are a family of human-made chemicals with over 5,000 compounds that have been used for decades in products like food packaging, carpets, non-stick products, other household items, medical supplies, and firefighting foam due to their ability to resist heat, oil, stains, grease, and water. PFAS can be harmful to human health and the environment when released to the soil, surface water or groundwater. Health effects from PFAS exposure may include pregnancy complications, developmental effects, and liver and kidney effects. Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonic acid (PFOS) are synthetic, eight carbon non-polymer organic compounds that are PFAS. These two chemicals along with anions, perfluorooctanoate and perfluorooctane sulfonate respectively, were added to the list of hazardous constituents in Appendix VIII to Part 261 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) in 2018 due to their toxicity to humans at very low concentrations. For this reason, in 2022, EPA issued interim lifetime health advisory levels of 0.004 parts per trillion for PFOA and 0.02 parts per trillion for PFOS for safe consumption of drinking water, lowered from the 70 parts per trillion 2016 combined health advisory level for PFOA and PFOS. Once released to the environment, PFAS are persistent, and can contaminate environmental media. Human exposure to PFAS through the ingestion of contaminated drinking water is of major concern, but exposure can also happen through dermal and inhalation routes. Class B firefighting foams containing PFAS is a leading source of PFAS contamination impacting Colorado communities.

While Class B firefighting foams containing PFAS are slowly being replaced with alternative products that do not contain the toxic compounds, many of these alternative products have not been completely tested and approved for fighting high hazard flammable liquid fires. For example, the U.S. Department of Defense (DoD) published a military specification (MIL-PRF-32725) for fluorine-free firefighting foam (F3) in January 2023. The Naval Sea Systems Command (NAVSEA) oversees the qualification process of F3, and as of January 2024, one product has been qualified and listed in the DoD Qualified Products Database (QPD)/Qualified Products List (QPL). Additionally, the Federal Aviation Administration (FAA) informed Airport operators and industry stakeholders in its January 2023 National Part 139 CertAlert No. 23-01 that it will accept airport operator's use of F3s qualified under MIL-PRF-32725, but will not require their use as of the date of the CertAlert. For these reasons, large inventories of the Class B firefighting foam containing PFAS still remain, and PFAS containing firefighting foams are still used routinely to extinguish these dangerous fires.

The requirements in the revised Subpart Q to Part 267 of 6 CCR 1007-3 are focused on addressing the risks associated with the contamination of soil and groundwater with perfluoroalkyl and polyfluoroalkyl chemicals found in PFAS AFFF, as well as removing requirements which correspond to repealed statutes. The revised Subpart requires all persons who store or use one or more gallons of PFAS AFFF to comply with the requirements of the Subpart, with exemption criteria defined in certain sections for the use of PFAS AFFF where required or authorized by federal law or implemented as required for a military purpose.

The amendments establish new definitions in Section 267.601 for the following terms used throughout the amended Subpart Q:

1) The definition of "Emergency" is adapted from 6 CCR 1007-2, Part 1, Section 1.2. The purpose of its insertion into the Subpart is to clarify the Section 267.615 requirement to remove finished PFAS AFFF from containment measures within 48-hours of the initial response to an immediate emergency.

2) The definition of "Finished PFAS AFFF" is adapted from industry terminology. The purpose of its insertion into the Subpart is to clarify the definition of "Spent PFAS AFFF'' and differentiate it between PFAS AFFF concentrate.

3) The definition of "Initial response" is adapted from 6 CCR 1007-2, Part 1, Section 5.5.4. The purpose of its insertion into the Subpart is to clarify when the Section 267.615(c) removal requirement is triggered.

4) The definition of "Perfluoroalkyl and polyfluoroalkyl substances take-back program" is incorporated by reference to C.R.S. 25-5-1311. The purpose of its insertion into the Subpart is to define the materials that may be exempt from the Section 267.620 storage requirements.

5) The definition of "Public use airport" is adapted from the definition found in 40 USC § 47102(22) (2023). The purpose of its insertion into the Subpart is to clarify which airports may be subject to the Section 267.606 use prohibitions.

6) The definition of "Release" is adapted from C.R.S. 25-5-1302. The purpose of its insertion into the Subpart is to define those circumstances which would constitute a release, and therefore to what circumstances the requirements of the Subpart would be applicable.

7) The definition of "Spent PFAS AFFF" is adapted from industry terminology. The purpose of its insertion into the Subpart is to define what materials would be subject to the Section 267.620 Spent PFAS AFFF storage requirements and to differentiate it from PFAS AFFF concentrate.

8) The definition of "Water quality spills hotline" is adapted from the Water Quality Control Division's website. One purpose of its insertion into the Subpart is to include for reference the phone number and website of the hotline for ease of access. Another purpose of its insertion is to define the hotline that must be contacted pursuant to the requirements of Section 267.611.

The amendments establish revised definitions in Section 267.601 for the following terms used throughout the amended Subpart Q:

1) The definition of "Class B firefighting foam containing intentionally added PFAS" is amended to state that the term Class B Firefighting foam is referred to as "PFAS AFFF" throughout the Subpart. The purpose of this revision is to improve the clarity of the regulation and reduce its length. 2) The definition of "Fire department" is amended to align with the definition of "fire department" found in C.R.S. 25-5-1302. The purpose of this revision is to better align the regulation with the corresponding Statute. 3) The definition of "Person" is adapted from 6 CCR 1007-3, Part 260.10. The purpose of its insertion is to ensure the regulation encompasses all applicable entities.

The amendments revise Section 267.605 - Applicability of requirements of Subpart Q to revise the applicability of capture, containment, and storage requirements from only those who use PFAS AFFF for testing activities to those who use PFAS AFFF for any purpose.

Additionally, the amendments revise the applicability of the existing Section 267.605(c), which requires the capture, containment, and storage of spent PFAS AFFF created specifically from conversions of PFAS AFFF systems used for testing to F3 systems. Due to the repealed testing exemption found in C.R.S. 24-33.5-1234, the section is revised to be applicable to all conversions of PFAS AFFF systems to F3 systems.

The amendments revise Subpart Q to include a new Use prohibitions Section 267.606. The purpose of this section is to list two relevant statutory restrictions on the use of PFAS AFFF in regulation: the existing restriction of C.R.S. 24-33.5-1234 on the use of PFAS AFFF for training or testing firefighting foam fire systems and the new restriction of C.R.S. 25-5-1309 on the use of PFAS AFFF at Colorado public-use airport structures used for the storage or maintenance of aircraft.

The amendments retain the existing, mandatory on-line registration program for all those who store or use PFAS AFFF. The registration requires that basic information about the fire department or facility be provided to the Division along with information concerning the quantities and configurations of the storage of the PFAS AFFF. Once information is provided to the Division through the on-line registration, the Division will continue to review the information and issue a Certificate of Registration. Certificates must be obtained from the Division within six (6) months after the fire department or facility first stores or uses the PFAS AFFF.

The amendments revise Subpart Q to include a new additional reporting requirements section, Section 267.611, which requires those who have registered and obtained a certificate of registration in accordance with Section 267.610 to furnish additional reporting concerning quantities and disposition of PFAS AFFF. This new section implements a self certification program for which those who have registered and obtained a certificate of registration must complete and return a checklist summarizing their compliance status with individual requirements found in 6 CCR 1007-3, Part 267, Subpart Q. This requirement is added under the authority of C.R.S. 25-5-1303.5(e). The self certification checklist will be designed to help those subject to regulatory requirements understand and comply with the regulations that are applicable to them. The section also requires the use or release of PFAS AFFF be reported to the water quality spills hotline. This requirement corresponds with 25-5-1303.5(d) and (e), and includes an exemption for the use of PFAS AFFF as required or authorized by federal law or implemented as required for a military purpose. To ensure the records necessary to verify compliance are maintained by persons who use or store one or more gallons of PFAS AFFF, Section 267.611 is amended to include a record retention requirement of 3 years for measures undertaken pursuant to the requirements of the section. Many of the requirements included in the amendments are derived from requirements of Colorado House Bill 22-1345 and have an effective date of January 1, 2024, including: users must not allow a release; contain PFAS AFFF and all associated waste during use; safely store all PFAS AFFF and all associated wastes; report all uses and releases to the Water Quality Spills Hotline; and PFAS AFFF use is prohibited at all Colorado public use airport hangars. For this reason, information which may be requested pursuant to 6 CCR 1007-3, Part 267.611 may include information relevant to activities which took place after the January 1, 2024, but before the effective date of the rule.

The amendments revise the scope of Section 267.615 from the capture requirements for PFAS AFFF specifically used in testing activities in dedicated containment systems to the requirements for the capture of PFAS AFFF created in real-world emergency situations using appropriate containment measures. One purpose of this revision is to remove the specifications for the design, construction and operation of containment systems used to capture PFAS AFFF discharged during testing activities due to the repealed testing exemption found in C.R.S. 24-33.5-1234. Another is to implement regulations that correspond with the requirement to contain PFAS AFFF during use using appropriate containment measures in accordance with C.R.S. 25-5-1303.5. Examples of appropriate containment measures found in the amendment include bunds, ponds or any other equivalent means of providing containment, but other appropriate containment measures may also include barriers, berms, booms, storm drain covers, dikes, trenches, and conveyances. The section requires containment measures to be impervious to PFAS chemicals to prevent the lateral escape of finished foam from the containment measures as described in C.R.S. 25-5-1303.5(1)(b)(ii), and may absorb PFAS chemicals to help prevent such escape. The requirement applies to temporary controls deployed by PFAS AFFF users during emergency situations for the purpose of limiting the lateral spread of finished PFAS AFFF to only those areas necessary for vapor suppression and extinguishment of Class B fires. Furthermore, the intended applicability of this requirement is not to the actual location where PFAS AFFF is applied. The amended language replaces the requirement to remove spent foam and liquids generated from testing activities, and place into storage within 24 hours of completing testing, with the requirement to remove finished PFAS AFFF used during real-world emergency situations from containment measures and place into storage within 48-hours of the extinguishment of the Class B Fire. One purpose of this revision is to remove the requirements applicable to spent PFAS AFFF created from testing activities due to the repealed testing exemption found in C.R.S. 24-33.5-1234. Another purpose is to extend the allotted time to remove finished PFAS AFFF from containment measures, and placement into storage, from 24-hours to 48-hours in consideration of the fact that the original 24-hour requirement was intended for dedicated containment systems specifically designed for testing firefighting foam systems which employed PFAS AFFF. The intent of this requirement is to limit the potential risks to human health and the environment associated with long term storage of finished PFAS AFFF in temporary containment measures.

The amendments revise the scope of Section 267.620 from only storage requirements applicable to spent PFAS AFFF created during testing activities to storage requirements applicable to all spent PFAS AFFF. One purpose of this revision is to remove the requirements applicable to spent PFAS AFFF created from testing activities due to the repealed testing exemption found in C.R.S. 24-33.5-1234. Another purpose is to replace the requirement to ship spent PFAS AFFF off-site for treatment and disposal as soon as possible with the requirement to safely store spent PFAS AFFF and any associated waste until further revisions to the regulations are made. This requirement is amended due to the requirement of C.R.S. 25-5-1303.5 to safely store PFAS AFFF and all associated waste until the federal environmental protection agency has published guidance on the proper disposal and destruction methods for PFAS chemicals. The amendments include this safe storage requirement due to the federal environmental protection agency not publishing such guidance as of the time of this rulemaking. Additionally, the amendments create an exemption from the safe storage requirements for those who store spent PFAS AFFF taken out of service through participation in the perfluoroalkyl and polyfluoroalkyl substances take-back program in its original factory-sealed container, so long as the PFAS AFFF is managed in compatible containers that are in good condition. The purpose of this exemption is to ensure that both active and prospective participants in the perfluoroalkyl and polyfluoroalkyl substances take-back program are not disincentivized from doing so. The amendments retain the existing container requirements.

Compliance with the registration and certificate program, the restrictions surrounding certain uses of PFAS AFFF, the additional reporting requirements which pertain to self certification and water quality spills hotline, capture requirements for the containment of finished PFAS AFFF during use, and the safe storage requirements for the storage of spent PFAS AFFF and any associated waste is mandatory, not voluntary. Therefore, to ensure that these rules for persons using or storing one or more gallons of PFAS AFFF are effective and efficient, the proposed amendments establish mandatory requirements, which are subject to penalties for non-compliance. In accordance with C.R.S. 25-5-1307, persons who violate any of the requirements of Part 267, Subpart Q shall be subject to enforcement, including the possible assessment of a civil penalty not to exceed five thousand dollars for each violation in the case of a first offense. A manufacturer or a person who violates this part 13 repeatedly is subject to a civil penalty not to exceed ten thousand dollars for each repeat offense.

The Commission has evaluated the information presented at the rulemaking hearing, as well as the information in the Statement of Basis and Purpose. It is the finding of the Commission that these regulations are not more stringent than federal requirements.

6 CCR 1007-3-8.103

47 CR 05, March 10, 2024, effective 3/30/2024