5 Colo. Code Regs. § 1002-64.26
The provisions of sections 25-8-202(1)(c), 25-8-205(1)(e), 25-8-501 to 504, and 25-8-509; C.R.S., provide the specific statutory authority for adoption. The Commission also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose of these amendments.
BASIS AND PURPOSE
The Colorado Water Quality Control Commission adopted the Colorado Biosolids Regulation 4.9.0 on November 2, 1993. Subsequently, the Commission convened an informational hearing concerning the Biosolids Regulation on December 9, 1996 as part of the triennial review.
A number of issues were identified at the December 9, 1996 informational hearing and were considered in this rulemaking hearing. These include applicability of Colorado permitting requirements to out-of-state biosolids, concerns with the distribution and/or marketing of liquid biosolids in Colorado, adequacy of current slope and setback criteria in the regulation, and expanded pathogen monitoring requirements for Class A biosolids. Additionally, the regulation is restructured slightly to combine phosphorus and nitrogen requirements into a single section addressing nutrient management concerns. Finally, there are a number of corrected or expanded cross references, which are not addressed any further.
Comments submitted to the Division from out-of-state producers of biosolids products marketed in Colorado requested waiver of the Notice of Authorization for the Use and Distribution requirement, and a concomitant $2.40 per dry ton fee assessed for the biosolids which are beneficially used in the state. Comments submitted asserted that Colorado's regulatory requirements are equivalent to the requirements imposed by a regulatory agency in the state where the biosolids originated, and therefore, duplication of regulatory requirements is not necessary. In June, 1997, Division staff met with stakeholders to address this issue. The consensus was to keep the regulatory requirements of the regulation the same, and continue to assess the $2.40 per dry ton fee for all biosolids beneficially used in Colorado. Justification for this is that state requirements where the biosolids originated from are, in fact, sometimes different than Colorado's requirements. Additionally, participants strongly felt that there is a need for local (in-state) sampling and analysis to confirm product quality. The Commission agrees with these conclusions and therefore has made no changes to the regulation in this regard.
Currently, the Biosolids Regulation allows the distribution and marketing of any product which meets Class A pathogen requirements, Grade I pollutant limitations, and appropriate Vector Attraction Reduction criteria. To date biosolids which have been distributed or marketed to the public have included composted or heat dried products. Questions have arisen as to the appropriate regulatory controls for a product which meets these requirements but is in a liquid form. A facility operating plan is required in the regulation at section 64.10.A to describe the distribution and marketing of biosolids to the public. In addition, the Division may also require in the operating plan, that a facility address handling and transportation of liquid biosolids. Therefore, the Commission does not believe that this aspect of the regulation requires modification at this time.
Agate and Deer Trail Soil Conservation District representatives voiced their concern, in both correspondence and at the informational hearing on December 9, 1996, over soil erosion problems at a property owned and operated by the Metro Wastewater Reclamation District where biosolids are being applied to the land for beneficial use. The Commission at that time asked Division staff to meet with the Agate and Deer Trail Soil Conservation Districts to discuss their concerns. The initial meeting occurred on May 29, 1997. Representatives of the Agate and Deer Trail Soil Conservation Districts, Metro Wastewater Reclamation District and other parties attended. The Soil Conservation Districts had two concerns; That the Universal Soil Loss Equation upon which previous criteria had been based is now out-of date, and that EPA's use of the equation in the risk assessment upon which national criteria is based, did not take into account the intense rainfall events in eastern Colorado. A work-group was formed to evaluate these two issues. EPA ran the updated version of the Universal Soil Loss Equation (RUSLE ver 1.05) and included current rainfall data supplied by the Natural Resources Conservation Service. Analysis confirmed the adequacy of existing criteria for current slope and set-back requirements. Therefore, no changes to the current slope and set-back requirements are being adopted at this time. However, Tables 4 and 5 of the regulation have been modified per recommendations from the stakeholders group, to modify biosolids application methods identified in Tables 4 and 5 in order to minimize run-off from a site by maintaining established vegetative cover, crop residue cover, and/or organic matter on the soil surface and by allowing site specific management options to be considered.
The parties to the hearing recognize the importance of site management planning to address the issue of soil loss. The parties also recognize that criteria contained within the regulation are statutorily constrained such that any criteria must reflect a human health and/or water quality basis. Such criteria may not, however, adequately address soil loss problems in all cases given the variability of soil types and slopes which could potentially be encountered. Further discussions among parties resulted in an agreement that representatives of the parties, in conjunction with the National Resource Conservation Service, the Colorado Association of Soil Conservation Boards, and other interested groups, develop a document identifying "Recommended Management Practices for Control of Soil Erosion and Surface Runoff at Biosolids Application Sites". This document is intended to communicate information concerning erosion control practices and related issues to wastewater treatment facility staff, consultants, and biosolids management contractors. This document is not intended to be and will not be utilized as a basis to support mandated site management requirements but rather as a technology transfer device. The Division anticipates development of such document within a twelve to eighteen month timeframe.
Representatives of the Soil Conservation Districts also indicated that there is often confusion on the part of the public as to where to direct complaints and/or inquiries. It is the Division's intent to address this issue through the development of site specific fact sheets which would identify appropriate contacts and which would be distributed locally where application projects are ongoing.
Based upon recommendations by the stakeholders group and the CSU's Guide To Fertilizer Recommendation in Colorado, Section 64.16.B of the regulation is modified to require that a soils analysis be comprised of 16 core hole samples per 320 acres. This is an increase from the current requirement in the regulation of 5 core holes samples per 320 acres. This increase in soil core hole samples would give a more representative sample of a site.
The Division had proposed modification of the regulation to require that compliance with numeric pathogen criteria for Class A biosolids products be based upon the results of seven discrete samples. The basis for the Division's proposal was that compliance with the Class B numeric criteria is based upon the geometric mean of seven samples and, because Class A biosolids products are made available to the public for use, the application of pathogen criteria to Class A products warrants an elevated level of conservatism. It should be noted that the language addressing the application of pathogen criteria to Class A biosolids currently mirrors the requirements of federal sludge management regulations at 40 CFR Part 503 . The Division had proposed that additional language be adopted which would, in the Division's interpretation, clarify the federal requirements.
Several parties objected to the Division's proposal, questioning the Division's interpretation of EPA guidance relative to the federal requirements. After meeting with the parties and EPA the Division has agreed to withdraw that portion of its proposal. It is agreed that the monitoring requirements in question will be explored in a white paper developed jointly by the Division, EPA Region VIII, and other interested parties. It is the intent of the parties and EPA that the white paper be submitted to the EPA's Pathogen Equivalency Committee for their review and concurrence. The Division estimates that development of the white paper will be a year long process. EPA Region VIII expects the Pathogen Equivalency Committee review process to require an additional six months. The Division would anticipate that, should modification of the regulation be indicated, proposed changes would be offered as part of the next triennial review.
The Division, in the interim, will contact instate producers of Class A products and notify them of this process. The Division's notification will also identify existing requirements relative to the need for sampling which is representative of the treatment process utilized and procedures should any instance of non-compliance be identified.
Currently the Division sends a letter to the local Natural Resources Conservation Service office notifying them when permittees apply to the Department for a Notice of Authorization to land apply biosolids, on a site located within local district boundaries. This practice is one which has evolved at the program level, and is not a requirement of the regulations. The Division believes that this practice is beneficial and intends to continue it, but does not see a need to modify the regulation at this time.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-64.26