Overview of Regulatory Changes, Policy and Implementation

Colleen Brisnehan

Colorado Department of Public Health And EnvironmentHazardous Materials and Waste Management Division

September 25, 2012

Draft Revisions to Asbestos-Contaminated Soil Regulation

Ongoing stakeholder process– Continue to revise and refine language

Clarify and refine requirements:– Definitions– Applicability– Exemptions

Provide relief where possible:– Disposal & Reuse– Management & Monitoring

Key Definition Changes

Old: Asbestos Contaminated Soil (ACS)

– Soil containing any amount of asbestos.

New: Regulated Asbestos Contaminated Soil (RACS)

– Based on high potential to release asbestos fibers

Non-Regulated Asbestos Contaminated Soil (Non-RACS)– Based on low potential to release asbestos fibers

ApplicabilityAny person who disturbs debris must:

– Determine if the debris is RACS:• Exempt from Section 5.5?• Material known to contain asbestos?• Determine asbestos content:

o analysis of asbestos content, oro knowledge of asbestos content (e.g. previous analysis), or

o assume RACS

Disturbance of RACS– Must comply with Section 5.5, or– Must cease disturbance and cover disturbed RACS

• Generated RACS not disposed or reused in accordance with Section 5.5 is subject to the requirements of the Act and Regulations (i.e., landfill requirements)

NEW

Exemptions

Section 5.5 Does Not Apply to:– Disturbance of Non-RACS

– Abatement of facility components under AQCC Regulation No. 8

– Spill response under AQCC Regulation No. 8

– “Background” not associated with site activities

– Active Disposal Facilities with a CD

– De Minimis Disturbance of RACS • Less than 1 cubic yard using low-emission methods

– Projects by home owner on primary residence

NEW

Management OptionsSite Specific Asbestos Management Plan

– Propose/implement site/project specific procedures– Provides for more site specific considerations

Standard Operating Procedure (SOP)– Implement pre-approved standard procedures– Amendments for project specific considerations

Best Management Practices (BMP)– Implement pre-defined management procedures

Risk Based Asbestos Management Plan– Propose/implement project specific risk-based

emissions criteria

NEW

NEW

Disposal & ReuseDisposal:

– RACS with > 1% friable ACM• Dispose as friable asbestos waste

– RACS with < 1% friable ACM• Dispose as non-friable asbestos waste

– Non-RACS• Dispose as C&D waste

Reuse:– Reuse within area of contamination

• Cover requirements, no covenant required

– Reuse outside area of contamination• Beneficial reuse determination, may require covenant

NEW

NEW

NEW

New Groundwater Standards

Commission Passed August 13, 2012

Become effective January 31, 2013

Key Changes (ug/l):

– Tetrachloroethylene (PCE) - 17 or 5M

– cis-1,2-Dichloroethylene - 14 to 70M

– Trans-1,2-Dichloroethylene - 140 or 100M

– 1,1,1-Trichloroethane - 14,000 or 200M

– 1,4-Dioxane - 0.35 (currently 3.2)– Perchlorate - 4.9

Beneficial Groundwater Use

The Issue:

Naturally occurring inorganic constituents often exceed surface water standards

– Can significantly impact dewatering project costs

– Treatment required before discharge→ or must dispose offsite

Solution:

Land apply for wetting or dust suppression– All constituents must meet groundwater standards

– Must prevent run-off

Beneficial Use of Solid Waste

Section 8 of the Solid Waste Regulations– No adverse impact on groundwater– No surface water impact– Must meet unrestricted use concentrations

• alternatively, requires use restriction under a covenant

– Must meet established engineering specifications– Must be a demonstrated benefit associated with use– Must be used as a substitute for, or in conjunction

with, a commercial product or raw material

What is an Environmental Covenant

Legally enforceable mechanism controlling land use

Gives regulators authority to enforce land and water use restrictions in cleanup and closure decisions

Binding against current and subsequent land owners or any person using the land

Injunctive relief only; no penalties

Statute silent as to whether EC is property right vs. regulatory (policy power) device

C.R.S. §§ 25-15-317 to 327

What is a Restrictive Notice Alternative mechanism to EC; similar function

Created in 2007 amendment to EC law

Necessitated by federal agencies’ refusal to grant covenants

Explicitly based on state’s police power

May be issued unilaterally, but only against property owned by a party being required to remediate contamination

Institutional Controls

Required when a “remedial decision” is made:– On a remediation project– Residual contamination not safe for all uses– Engineered structures relied upon

Required for final remedial decisions:– No further treatment or removal is planned– Waste is capped in place – Contamination remains above unrestricted use levels– Remedy relies on pump-and-treat or natural attenuation

Not required for VCUP remediation projects

Institutional Controls (cont.)

Not required for interim measures not intended as the final remedial decision: – In-situ treatment requiring limited applications– Number of required treatments not known in advance– Use of innovative or unproven technology– Removal of soil impacting groundwater

Result of final remedial decision based on:– Conditions at completion of remedy construction – Time necessary for monitoring to demonstrate design

goals have been met

Timing of Institutional Controls

Submit covenant or restrictive notice: – Based on schedule in remedial decision document – 30 days after completion of remedy construction– 30 days after remedial decision for IC only remedies

Sites with multiple remediation projects:– Division and facility to determine best approach

• Single site-wide covenant• One covenant per remediation project• Multiple covenant covering one or more projects

– Division may exercise discretion regarding timing of covenant execution