(1) (a) There is created in the department of public health and environment a solid and hazardous waste commission, referred to in this part 3 as the "commission", which is a type 1 entity, as defined in section 24-1-105, and exercises its powers and performs its duties and functions under the department of public health and environment. The commission consists of nine citizens of the state appointed by the governor, with the consent of the senate, for terms of three years; except that the terms shall be staggered so that no more than three members' terms expire in the same year. Members of the commission must be appointed so as to achieve geographical representation and to reflect the various interests in waste management in the state. (b) Appointments to the commission shall be made so that all persons shall have appropriate scientific, technical, industrial, legal, public health, or environmental training or experience. Three members shall be from the regulated community. Three members shall be from the public at large. Three members shall be from government or the academic community; except that no member shall be an employee of the department. No more than five members of the commission shall be members of the same political party. (c) The members of the commission shall disclose any potential conflicts of interest to the governor and the committee of reference of the general assembly prior to confirmation and shall disclose any potential conflicts of interest which arise during their terms of membership to the other commission members in a public meeting of the commission. (d) Whenever a vacancy exists on the commission, the governor shall appoint a member for the remaining portion of the unexpired term created by the vacancy, subject to confirmation by the senate. (e) The governor may remove any appointed member of the commission for malfeasance in office, for failure to attend meetings regularly, or for any cause that renders such member incapable or unfit to discharge the duties of such member's office. (f) If any member of the commission is absent from two consecutive meetings or fails to attend at least seventy-five percent of the regularly scheduled meetings of the commission held in any one year and such absences were without sufficient cause as determined by the commission, the chairman of the commission shall notify the governor, who may remove such member and appoint a qualified person for the remaining portion of such member's term, subject to confirmation by the senate. (g) Each member of the commission shall receive traveling and other necessary expenses actually incurred in the performance of such member's official duties as a member of the commission. (h) The commission shall select from its own membership a chairman, a vice-chairman, and a secretary. The commission shall keep a record of its proceedings. (i) The commission shall hold regular public meetings and may hold special meetings on the call of the chairman or vice-chairman at such other times as deemed necessary. Written notice of the time and place of each meeting shall be mailed to each member at least twenty days in advance of such meeting. (j) (I) The commission shall hold an annual public meeting to hear public comment on hazardous waste issues within the state. At such meeting, the commission shall answer reasonable questions from the public concerning rules, regulations, appeals of penalties, and any other commission activities under the authority of this part 3 occurring during the previous year. (II) Prior to the meeting required under subparagraph (I) of this paragraph (j), the commission shall prepare and make available to the public a report which shall contain the following specific information: (A) All rules and regulations promulgated by the commission during the previous year; (B) All interpretive rules issued by the commission during the previous year; (C) All appeals of penalties heard before the commission and the commission's determinations in such appeals; and (D) Any other commission activities as appropriate. (k) Each member of the commission shall have a vote. Two-thirds of the members of the commission shall constitute a quorum, and, except as otherwise provided in subsection (4) of this section, the concurrence of a majority of the members present at any meeting at which a quorum is present on any matter within its powers and duties shall be required for any determination made by the commission. (2) The commission shall promulgate rules pertaining to hazardous waste in accordance with this part 3 and in accordance with the procedures and other provisions of article 4 of title 24, C.R.S. Such rules shall provide protection of public health and the environment and shall include: (a) Criteria for establishing characteristics and listings of hazardous wastes, including mechanisms for determining whether any waste is hazardous for the purpose of this part 3; (b) Regulations governing those wastes or combinations of wastes which are not compatible and which may not be stored, treated, or disposed of together; (c) Regulations for the storage, treatment, and disposal of hazardous wastes, including regulations for the issuance of permits based on best engineering judgment, including but not limited to interim status, regulations concerning information required to be submitted to obtain such permits, and regulations concerning the requirement of a permit prior to the construction of a treatment, storage, or disposal facility; (d) Regulations for the operation and maintenance of hazardous waste treatment, storage, and disposal facilities, including such qualifications and requirements as to ownership, continuity of operation, training of personnel, and closure and postclosure care, as may be necessary or desirable; (e) Regulations for the design and construction of treatment, storage, and disposal facilities; (f) Regulations, promulgated in accordance with article 20 of title 42, C.R.S., providing procedures and requirements for: (I) The use of a manifest during transportation of hazardous waste, applying equally to those persons transporting hazardous waste they have generated themselves and to persons who have contracted to transport hazardous waste for other parties, consistent with federal and state regulations on the transportation of hazardous wastes; (II) Record keeping concerning the transportation of hazardous waste, including its source and destination; (III) Notification and cleanup of spills or discharges during the transportation of hazardous waste; (IV) Transportation of hazardous wastes only if such hazardous wastes are properly labeled and for restricting the transportation of all hazardous wastes only to permitted hazardous waste treatment, storage, or disposal facilities which the shipper designates on the manifest form; (g) Regulations requiring reports and record-keeping requirements for hazardous waste management, including notification of accidents; (h) Regulations establishing procedures for maintaining confidentiality relating to methods of manufacture or secret processes and establishing fees and financial assurance and ownership requirements, including bonds, required by this part 3; (i) Regulations for issuing compliance orders and administrative penalties, for establishing compliance conditions and schedules, and for issuing, modifying, revoking and reissuing, or terminating permits; except that nothing in this paragraph (i) shall be interpreted to impair the department's authority to take such actions pending promulgation of such regulations; (j) Regulations for the classification of sites in terms of wastes that can be received and managed thereon and hydrological, soil, and other siting characteristics for assuring long-term isolation of designated wastes from the environment; (k) Regulations establishing standards applicable to generators of hazardous waste, including requirements for: (I) Record-keeping practices that accurately identify the quantities of hazardous waste generated, the constituents of such hazardous waste which are significant in quantity or of potential harm to human health or the environment, and the disposition of such hazardous waste; (II) Labeling practices for any container that is used for the storage, transportation, or disposal of hazardous waste so as to identify accurately such waste; (III) The use of appropriate containers for hazardous waste; (IV) The furnishing of information on the general chemical composition of hazardous waste to persons transporting, treating, storing, or disposing of such waste; (V) The use of a manifest system and any other reasonable means necessary to assure that all hazardous waste generated is designated for treatment, storage, or disposal at a permitted facility; (VI) The submission of reports; and (l) Regulations requiring contingency plans for effective action to minimize unanticipated damage from any treatment, storage, or disposal of any hazardous waste. (3) The commission shall promulgate rules establishing categories of hazardous wastes and hazardous waste management practices based on degree of hazard considerations. Such rules may vary from category to category to reflect the degree of hazard involved in each such category. The commission's rules may also provide for general permits to be issued based on degree of hazard considerations. (3.2) (a) The commission shall promulgate rules establishing a certificate of registration for any facility, fire department, or lessee subject to federal rules and regulations that uses or stores perfluoroalkyl and polyfluoroalkyl substances in its operations, establishing standards for the capture and disposal of perfluoroalkyl and polyfluoroalkyl substances, and setting penalties for not obtaining such a certificate of registration or following such standards for the capture and disposal of perfluoroalkyl and polyfluoroalkyl substances. The commission shall take into account costs, technological feasibility, and the possibility of emergency situations for any rules it promulgates. (b) Any facility, fire department, or lessee subject to federal rules and regulations that uses or stores perfluoroalkyl and polyfluoroalkyl substances in its operations must obtain the certificate of registration created under subsection (3.2)(a) of this section either before June 1, 2021, or six months after it first obtains perfluoroalkyl and polyfluoroalkyl substances, whichever is later. (c) In order to obtain the certificate of registration created under subsection (3.2)(a) of this section, a facility, fire department, or lessee subject to federal rules and regulations must prove that it follows the standards for the capture and disposal of perfluoroalkyl and polyfluoroalkyl substances created under subsection (3.2)(a) of this section. (d) No facility, fire department, or lessee subject to federal rules and regulations that uses or stores perfluoroalkyl and polyfluoroalkyl substances in its operations shall be subject to any penalties under this section for not obtaining a certificate of registration unless there has been a sufficient opportunity to apply for and receive a certificate of registration. (e) As used in this section, unless the context otherwise requires: (I) "Perfluoroalkyl and polyfluoroalkyl substances" means class B firefighting foam, as defined in section 25-5-1302 (2), that contain a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. (II) "Uses or stores" means actual and intentional ownership or control of perfluoroalkyl and polyfluoroalkyl substances. "Uses or stores" does not mean the interception or accumulation of perfluoroalkyl and polyfluoroalkyl substances in water treatment facilities and domestic wastewater facilities. (3.5) The commission shall promulgate rules pertaining to the assessment of fees to offset program costs from facilities that treat, store, or dispose of hazardous waste pursuant to a permit or interim status and from generators of hazardous waste in accordance with the following: (a) On or after July 1, 2000, to July 1, 2002, the fees shall be as follows: (I) The annual fees for facilities that treat, store, or dispose of hazardous waste pursuant to a permit or interim status shall be as set forth in 6 CCR 1007-3, section 100.31; (II) The annual fee shall be one thousand nine hundred dollars for generators of hazardous waste who are subject to regulation under this part 3 during any calendar month of the year for which the annual fee is being assessed and who generate in each of any four calendar months in that year an amount greater than one thousand kilograms of hazardous wastes, one kilogram of acute hazardous wastes, or one hundred kilograms of any residue, contaminated soil, waste, or debris resulting from the clean-up of a spill, into or on any land or water, of any acute hazardous wastes; (III) The annual fee shall be three hundred dollars for all other generators of hazardous waste that are subject to this part 3 during any calendar month of the year for which the annual fee is being assessed; except that no annual fee shall be assessed against those generators of hazardous waste who generate in every month of that year no more than one hundred kilograms of hazardous wastes, one kilogram of acute hazardous wastes, or one hundred kilograms of any residue, contaminated soil, waste, or debris resulting from the clean-up of a spill, into or on any land or water, of any acute hazardous wastes; (IV) The document review and activity fee charged by the department shall be in accordance with 6 CCR 1007-3, section 100.32; except that the hourly charge shall be increased from eighty-five dollars to one hundred dollars; (V) The document review and activity fee ceiling shall be in accordance with 6 CCR 1007-3, section 100.32; except that the department may, on a case-by-case basis and upon demonstration of need consistent with section 25-15-301.5, request a waiver of the ceiling from a facility subject to the document review and activity fee. (b) On or after July 1, 2002, the commission may adjust the fees then in effect if the department has demonstrated that it has developed, implemented, and is continuing to improve policies and procedures for carrying out its statutory responsibilities at the lowest possible cost without jeopardizing the intent set out in section 25-15-301.5 (1), and that, despite these efforts or as a result of these efforts, the fee adjustments are necessary; except that the adjusted fees shall be subject to the following limitations: (I) Annual fees for facilities that treat, store, or dispose of hazardous waste pursuant to a permit or interim status shall be established at a level that will, when combined with an appropriate share of available federal grant moneys, generate revenues approximating the actual, reasonable program costs attributable to such facilities. Such annual fees shall take into account equitable factors including, without limitation, the quantity and degree of hazard of the hazardous waste involved and whether the hazardous waste is to be disposed of, stored, or treated. (II) Annual fees for generators of hazardous waste who are subject to regulation under this part 3 during any calendar month of the year for which the annual fee is being assessed shall be established at a level that will, when combined with an appropriate share of available federal grant moneys, generate revenues approximating the actual, reasonable program costs attributable to generators with an appropriate differentiation between generators described in subparagraphs (II) and (III) of paragraph (a) of this subsection (3.5); (III) The hourly charge for the document review and activity fees shall be established at a rate comparable to industry rates for performing similar tasks with maximum levels on document review and activity fees that reflect timely and cost-effective reviews; and (IV) The overall fee structure shall be consistent with the trend in hazardous waste generation, treatment, storage, disposal, and corrective action in the state and with the authorized funding for the program. (c) In addition to any other review provided in law, any rule adopted, or fee modified, by the commission pursuant to paragraph (b) of this subsection (3.5) may be reviewed by the joint budget committee of the general assembly upon its own motion or upon written request submitted within thirty days after the adoption of the rule by the commission. The joint budget committee shall review such rule for accuracy and compliance with the statutory provision set forth in this subsection (3.5). Request may be made by any person regulated under this part 3. Any review by the joint budget committee shall be completed within ninety days after the date requested. Such rule shall not become effective until approved by the joint budget committee or upon the failure of the joint budget committee to take action within ninety days after the day of the request for review. Such rule may not result in a level of funding for the program that exceeds amounts appropriated or that will be appropriated by the general assembly. (d) The department shall provide a receipt for the fees paid pursuant to this subsection (3.5) and shall transmit such payments to the state treasurer and take the treasurer's receipt therefor. The state treasurer shall credit all fees received to the hazardous waste service fund as provided in section 25-15-304. (3.7) If the department determines that a facility is, and has been, treating, storing, or disposing of hazardous wastes without a permit or interim status, and that facility legally should have been operating pursuant to a permit or interim status, then, in addition to any other remedies the department may have, the department may assess a fee to offset program costs from that facility that is equivalent to the estimated annual fees, without interest, that such facility should have paid the department if the facility had been operating pursuant to a permit or interim status; except that such fee shall not be assessed under any one the following circumstances: (a) The only hazardous waste being treated, stored, or disposed of is in-place contaminated media or debris or contaminated structures; (b) The treatment, storage, and disposal is part of a corrective action plan approved by the department; or (c) The facility modified the facility's operations within one month after being notified in writing that the facility should be operating pursuant to a permit or interim status so that any treatment, storage, or disposal of hazardous wastes at the facility is no longer subject to a permit or interim status. (4) (a) Except as provided in paragraph (b) of this subsection (4), the rules promulgated by the commission pursuant to the provisions of this part 3 may be more stringent than the corresponding rules of the federal environmental protection agency promulgated pursuant to the federal act; however, more stringent rules including, without limitation, rules that list or define as a hazardous waste any waste or other material exempted or otherwise not regulated as a hazardous waste under the federal act may only be adopted if the commission makes a written finding, after a public hearing and based upon substantial evidence in the record that such rules are necessary to protect the public health and the environment of the state, and such findings and rules are approved by an affirmative vote of at least six members of the commission. Such findings and rules shall be accompanied by a commission opinion referring to and evaluating the public health and environmental information and studies contained in the record that form the basis for such findings and rules. (b) The rules promulgated by the commission pursuant to the provisions of this part 3 concerning the regulation of mining and mineral processing wastes, including exploration, mining, milling, and smelting and the refining of waste, shall be identical to and no more inclusive than the regulations of the federal environmental protection agency promulgated pursuant to the federal act. (c) (Deleted by amendment, L. 2000, p. 1068, § 3, effective July 1, 2000.) (4.5) The commission shall adopt rules concerning solid waste disposal sites and facilities in accordance with part 1 of article 20 of title 30, C.R.S. (4.6) The commission may adopt rules that specify types of composting facilities by size, volume, or other suitable criteria that provide equivalent protection of public health and the environment that would not be required to obtain a certificate of designation in accordance with section 30-20-102, C.R.S. (4.7) Repealed. (5) The rules promulgated by the commission are subject to expiration in accordance with section 24-4-103. (6) The commission may advise and consult and cooperate with other agencies of the state, the federal government, and other states and with groups, political subdivisions, and industries affected by the provisions of this article or by the policies or rules of the commission. (7) (a) The commission may hold hearings. Such hearings shall be held pursuant to and in conformity with article 4 of title 24, C.R.S., and with this article. (b) The commission shall adopt such rules governing procedures and hearings before the commission as may be necessary to assure that such procedures and hearings will be fair and impartial. Such rules shall be consistent with the pertinent provisions of article 4 of title 24, C.R.S. Such rules shall include a voting rule that excludes a member from voting on any matter arising under section 25-15-305, 25-15-308, or 25-15-309 if such member has a conflict of interest with respect to such matter. (c) The disclosure of any information relating to secret processes or methods of manufacture or production which may be required, ascertained, or discovered by the commission shall be governed by the provisions of part 2 of article 72 of title 24, C.R.S. (8) (a) Prior to promulgating any rule authorized by this article, the commission shall conduct a public hearing thereon as provided in section 24-4-103, C.R.S. Notice of any such hearing shall conform to the requirements of section 24-4-103, C.R.S.; except that such notice shall include a summary or the text of each proposed rule or rule revision. The commission may, if requested or when otherwise appropriate, lengthen the notice period to provide sufficient time for public review of a proposed rule or revision. (b) Rules promulgated pursuant to this article shall take effect as provided in section 24- 4-103 (5) or (6), C.R.S. (9) (a) The commission shall employ an administrator and shall delegate to such administrator such duties and responsibilities as it may deem necessary; except that no authority shall be delegated to such administrator to promulgate rules or to make determinations as provided in this part 3. Such administrator shall have appropriate practical, educational, technical, and administrative training or experience related to solid and hazardous waste management and shall be employed pursuant to section 13 of article XII of the Colorado constitution. (b) Notice of meetings of the commission shall be published in the Colorado register at least twenty days prior to the date of such meeting and shall state the time, place, and nature of the subject matter to be considered at such meeting. The administrator shall maintain a mailing list of persons requesting to be included thereon and shall mail notice of any meeting of the commission to such persons at least twenty days prior to such meeting. Opportunity shall be afforded to interested persons to submit views orally or in writing on the proposals under consideration or to otherwise participate informally in a commission proceeding. For commission proceedings under this part 3 other than the review of administrative penalties pursuant to section 25-15-309, the department shall furnish such personnel to the commission as the commission may reasonably require.
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