6 Colo. Code Regs. § 1007-3-8.59
These amendments to 6 CCR 1007-3, Parts 260, 264, 265 and 100 are made pursuant to the authority granted to the Hazardous Waste Commission in § 25-15-302(2), C.R.S.
Conforming Amendments to Implement Colorado's Environmental Covenant Statute, SB01-145
On July 1, 2001, the Colorado Environmental Covenant law, SB01-145, became law. This statute creates a mechanism for enforcing land and water use restrictions that are imposed in connection with environmental cleanup decisions. Frequently, remediation of environmental contamination does not eliminate all of the contaminants. Sometimes, engineered structures, such as caps or barrier walls are used to isolate residual contamination form the environment and human contact. Other times, a facility owner or operator may propose a "risk-based" cleanup, where contamination is cleaned up to levels that are safe for some exposure scenarios, but not others (e.g., a higher level of contamination is typically safe in industrial use scenarios than in residential use scenarios, because industrial use does not include exposures through activities such as gardening, children playing on the ground, etc.).
The environmental covenant law applies to remediation of environmental contamination and closure of regulated hazardous waste units under the Colorado Hazardous Waste Act. The existing hazardous waste regulations refer to instruments such as "deed notices" or "deed stipulations" in situations where the regulations require that use restrictions be imposed on property that has been used to manage hazardous wastes. One of the reasons for adoption of SB01-145 was that there is no Colorado case law or statute that indicates whether such instruments would be enforceable in the situations anticipated by the regulations. SB01-145 solved that problem by creating the enforceable environmental covenant.
The proposed amendments include changes to Parts 260 (adding a definition of environmental covenant), 264 and 265 (related to post-closure requirements and land treatment facilities) and Part 100 (related to information requirements for hazardous waste disposal sites).
The amendments to the regulations that are being adopted today are necessary to conform the regulations to the requirements of SB01-145, and to clarify how the covenant requirements fit in with existing regulatory requirements related to land use restrictions. These amendments do not expand the situations in which a covenant is required beyond those specified in the statute. In adopting SB01-145, the Legislature found that creating the mechanism of the environmental covenant was necessary for protection of human health and the environment (see § 25-15-317, C.R.S.). The Commission considers the legislative finding and adoption of SB01-145 as constituting substantial evidence to support its finding that the proposed regulatory amendments are necessary for protection of human health and the environment.
Correction of Typographical Errors and Inadvertent Omissions
These amendments correct typographical errors and inadvertent omissions that exist in § § 265.140(a), 265.140(a)(4)(vii) and 100.11(a)(2)(ii)(3) of the current regulations, and provide state equivalency with the applicable federal requirements.
Statement of Basis and Purpose - Rulemaking Hearing of March 21, 2006
6 CCR 1007-3-8.59