DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Solid and Hazardous Waste Commission

Hazardous Materials and Waste Management Division 

6 CCR 1007-2

STATEMENT OF BASIS AND PURPOSE AND SPECIFIC STATUTORY AUTHORITY FOR 

Revisions to the Regulations Pertaining to Solid Waste Sites and Facilities (6 CCR 1007-2 Part 1) –Deletion and Replacement of Existing Section 14 Solid Waste Composting Regulations, and the Associated Additions and Revisions of Section 1.2 Definitions 

(Adopted by the Solid and Hazardous Waste Commission on November 15, 2016)

Basis and Purpose

I.	Statutory Authority 

The Solid Waste Act (“the Act”) requires the Department to regulate solid waste management within the State. The Act requires the Department to develop, implement and continuously improve, as necessary, policies and procedures for carrying out its statutory responsibilities.  § 30-20-101.5(2), C.R.S.  

The Act defines solid waste as “any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility, and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial or commercial operations or from community activities.” § 30-20-101(6)(a), C.R.S.   Solid wastes disposal means “the storage, treatment, utilization, processing, or final disposal of solid wastes.”  § 30-20-101(7), C.R.S.  A person may only dispose of solid waste at a solid wastes disposal site and facility that has received a certificate of designation from the local governing authority having jurisdiction.  § 30-20-102, C.R.S.  However, the Act states the Commission “may 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.”  § 30-20-102(8), C.R.S.

Because compost feedstocks may include a variety of solid wastes, including sludges and other discarded materials, composting facilities are solid waste disposal sites and facilities.  These amendments to the Solid Waste Regulations have been promulgated pursuant to the Commission’s authority under section 30-20-109, C.R.S. and establish standards for solid wastes disposal sites and facilities engaged in composting operations and determine what composting facilities are exempt from the certificate of designation requirement. 

II.	Purpose of revised regulations

The purpose of revising Section 14 of the Solid Waste Regulations is to repeal the existing Section 14 composting regulations, and replace them in their entirety with a restructured version that: 

(1)	clarifies the types of composting activities which Section 14 applies to; 
(2)	specifies and expands the types of composting operations that are exempt from Section 14; 
(3)	restructures the composting facility classes to align with feedstock types and places requirements within each specific classification; and 
(4)	provides reduced engineering and design requirements for yard waste only composting facilities.  

These revisions stem from many communities expressing a desire to compost on a very small scale at community gardens and behind restaurants, and some municipalities expressing interest in composting yard waste generated from city maintenance operations.  A Section 14 revision is necessary to permit these composting activities that are believed to have very minor risk to the environment.  Additionally, the US Composting Council issued a Model Compost Rule in April of 2013 that was generated by industry and government officials throughout the United States to aid state governments in creating compost facility rules.   On May 14, 2014, the Rocky Mountain Organics Council provided a white paper encouraging the Department to develop composting facility rules similar to the US Composting Council’s model rule.  

Discussion of Regulatory Proposal

I.	Changes to the Section 14 regulations require the addition and revision of some existing definitions.  These changes, summarized below, will be incorporated into Section 1.2 of the Solid Waste Regulations (6 CCR 1007-2, Part 1).
 
The following definitions are being added to Section 1.2:
1.	Animal Waste
2.	Backyard Composting
3.	Commercial Composting Facility
4.	Compostable Products
5.	Food Processing Residuals
6.	Food Processing Vegetative Waste
7.	Food Residuals
8.	Mixed Solid Waste
9.	Source Separated Organics
10.	Vegetative Waste
11.	Woody Materials

The following definitions are being modified in Section 1.2:
1.	Agricultural Wastes
2.	Green Waste
3.	Other Compatible Materials
4.	Yard Waste

The following definition is being deleted from Section 1.2, as this term is no longer used in the solid waste regulations:
1.	Animal Material

II.	Section and Subsection Titles

Section 14 was restructured so that:

1.	The composting facility classes are labeled from the least amount of regulatory requirements to the most.  This aligns with the feedstock types which are labeled the least harmful to the most potential for harm to human health and environment.
2.	Two facility class types were removed because the solid waste regulatory requirements were identical for both types.  
a.	Previous Class I and II facilities are now Class III Facilities.
b.	Previous Class IV and V Facilities are now Class I Facilities and are combined with yard waste composting facilities.
3.	The regulatory requirements for each facility class are identified within the section that applies to each class to eliminate the need to reference multiple sections throughout Section 14.  
4.	Each section contains a scope and applicability subsection specifically outlining which types of activities are subject to the following portion of the regulation.

III.	Scope and Applicability (Section 14.1.1)

The updated Section 14.1.1 describes the applicability of Section 14 and provides an overview of the nature of the Department’s shared authority for regulating solid waste management activities with the local governing authority.  The scope and applicability also points out the necessity for obtaining a CD from the local governing authority prior to operating a composting facility. 

IV.	Compost Feedstock Types (Section 14.1.2)

This section was updated to include Source Separated Organics which is a term frequently used in the composting industry and refers to compostable material that has been separated from non-compostable material at the point of generation. Manure was reclassified from a Type 1 feedstock to a Type 2 feedstock to remain consistent with both the USCC’s model regulations and to line up commercial manure composting facilities with the new Class II composting facilities.

Animal food processing residuals are reclassified from Type 2 to Type 3 feedstocks because small quantity conditionally exempt composting facilities are permitted to accept Type 2 feedstocks and animal food processing residuals should only be handled by trained composting personnel. 

V.	General Exemptions (Section 14.1.3)

This updated Section 14.1.3 describes the types of composting activities that are exempt from Section 14.  The revisions update the agricultural waste exemption to better align it with the regulatory definition of agricultural waste.  Pursuant to this updated rule, a person may move agricultural waste from the site of generation and maintain the agricultural waste exemption so long as no solid waste is added to the agricultural waste.  

VI.	Conditional Exemptions (Section 14.1.4)

A new category for conditionally exempt small quantity composting facilities was created to allow restaurants, schools, small quantity commercial composters and community gardens to compost onsite and import small quantities of materials.  Conditions are placed on conditionally exempt small quantity composting facilities to maintain records to show that they are not subject to the remainder of the composting regulations.  The conditionally exempt small quantity composting facility category is split into two separate categories: commercial and non-commercial.  The commercial facilities must register with the Department, report quantity of feedstock composted annual and test the finished product according to the testing requirements in Section 14.6.  The non-commercial facilities need only to keep track of the feedstock imported.  Both types of conditionally exempt small quantity composting facilities must comply with all other local, state and federal regulations. 

Under this exemption, a facility can have a maximum of 100 cubic yards of Type 1 feedstock in-process or onsite and a maximum of 5 cubic yards of Type 2 feedstock in-process or onsite or up to 10 cubic yards of Type 2 if composting in-vessel.  

VII.	Compliance Schedule 

Class II and III facilities were required to document compliance with the 2008 revision to Section 14.  Not all facilities complied with this requirement.  Any facility that did not receive approval from the Division and/or local governing authority after 2008 is required to submit a revised engineering design and operation plan (EDOP) to the Department and the local governing authority, for review and approval, documenting how the facility is in compliance with this revision of Section 14.  Those facilities with approved EDOP’s after 2008 do not need to resubmit their EDOP for review and approval. 

VIII.	Class I Composting Facilities (Section 14.2)

The Class I composting facility classification was restructured so that the previous Class IV facilities, Class V facilities and new Type 1 only composting facilities fall into the same class.  The previous Class IV and V facilities had nearly identical requirements in the 2008 revision which are protective requirements when applied to Type 1 composting facilities.  This revision lines up Class I facilities with accepting Type 1 feedstock, with the exception of institutional composting (previous Class IV) and agricultural composting (previous Class V) which is a desire of the stakeholders. 

The Class I requirements offer reduce regulatory requirements for Type 1 feedstock composting operations that have up to 50,000 cubic yards of Type 1 feedstock onsite or in process at any given time.  Previously, Type 1 feedstock composting facilities needed to submit an EDOP to the Department for review and approval.  These revisions provide Type 1 composting facilities the opportunity to submit a detailed registration, financial assurance and maintain a detailed composting plan onsite for Department inspection.  

IX.	Class II Composting Facilities (Section 14.3)

The revised Class II composting facility requirements are identical to the previous Class III facility requirements.  

X.	Class III Composting Facilities (Section 14.4)

For this revision, the previous Class I and Class II composting facilities were aggregated into one category, the new Class III.  The new Class IIIs can accept Type 1, 2 and 3 feedstock.  Class III facilities have identical requirements to the previous Class I and II facility requirements.  They are required to have an EDOP approved by the Department and local governing body, to obtain financial assurance and to obtain a CD from the local governing body. 

XI.	Pilot Projects (Section 14.5)

The revision of the composting regulations applies a case-by-case approach to regulating composting pilot projects.  This revision expands the allowable pilot period length from one year to two years and states that pilot project must demonstrate that they will be as protective as the requirements for the corresponding facility class for the materials accepted.  The new pilot provisions provide the option for composting research at academic institutions under reduced regulatory requirements and removes the financial assurance requirement.  

XII.	Sampling of Finished Compost and Soil Amendments (Section 14.6)

The revised finished compost sampling section is identical to the previous sampling section except the new sampling section includes an option for meeting alternative testing criteria
because some facilities compost to create soil amendments rather than finished compost.  In these cases, these facilities may not meet the pathogen reduction requirements, but they may use the soil amendments on their own property or distribute to agricultural businesses that are accustomed to handling manures and other agricultural wastes that contain elevated concentrations of fecal coliform.  

Description of Local Government Involvement in the Stakeholder Process

Executive Order D 2011-005 (EO5), “Establishing a Policy to Enhance the Relationship between State and Local Government” requires state rulemaking agencies to consult with and engage local governments prior to the promulgation of any rules containing mandates. The Department completed an EO5 – Internal Communication Form – Internal Conception Phase which was transmitted to local governments. The amended composting regulations will have little effect on local governments.

Issues Encountered During Stakeholder Process

The Department initiated a stakeholder process in May 2015 and hosted meetings with stakeholders.  The following issues arose during the fifteen month long stakeholder process.

Applicability of the Rule to facilities composting but not creating compost

There are scenarios where an applicant expressed the desire to process solid wastes using composting methods, but create a soil amendment rather than a compost product.  These conversations begged the question of whether Section 14 should apply to persons composting solid waste or to persons that produce compost.  To resolve this question, the Department and stakeholders looked to the definitions already existing in the Solid Waste Regulations.  The Solid Waste Regulations define composting as “the biological process of degrading organic materials that is facilitated and controlled through intentional and active manipulation of piles and windrows. These manipulations may include but are not limited to grinding, mixing of feed stocks and bulking materials, addition of liquids, turning of piles, or mechanical manipulation.”  6 CCR 1007-2, § 1.2.  The Department and stakeholders agreed that Section 14 should not be limited to the creation of compost, but should apply to persons who compost solid waste and that this Regulation should regulate persons processing solid waste to create soil amendment.   

Agricultural Exemption

The agricultural exemption and the manner in which the Department regulates persons processing agricultural waste was an important topic of discussion during the 2008 Section 14 revision process and during the current regulation revision.  The Act exempts “agricultural waste” from the definition of “solid waste.” § 30-20-101(6)(b)(II), C.R.S.  Therefore, a facility that manages only agricultural waste is not a solid waste disposal site and facility and is not subject to the Solid Waste Regulations. This exemption has been known as the “agricultural exemption,” and has allowed individuals to compost waste resulting from the raising of crops and animals on agriculturally zoned land at the location of generation without having to comply with the regulatory requirements regarding design and operations plans, closure and post-closure plans, financial assurance, monitoring composting process, and testing finished product. Compost produced by owners or operators under this agricultural exemption can be sold or distributed as finished compost to the public without needing to meet any requirements of the Solid Waste Regulations.

The Act does not define “agricultural wastes.”  Instead, that term is defined in the Solid Waste Regulations to mean, in relevant part, “all solid wastes resulting from the raising of crops or animals on land zoned agricultural by local requirements, including animal manures, that are returned to the soils as fertilizer or soil conditioners.”  6 CCR 1007-2, § 1.2.  The phrase “returned to the soils” creates some ambiguity because it is not clear whether this means “returned to the same soils from which they were generated,” or “returned to any soils.”  The Department historically interpreted this phrase to mean “returned to the same soils,” a more limited interpretation, with the result being that the transport of agricultural waste to any other property rendered the waste no longer agricultural waste and making the receiving site a solid waste disposal site.  During the stakeholder process, the Division and the stakeholders agreed to the more permissive interpretation that would result in agricultural waste maintaining that designation even if moved to other another property.  The result of this is that the processing of only agricultural waste at any site is not subject to the Solid Waste regulations so long as that waste is returned to the soil as fertilizer or soil conditioner.  

Class I Agricultural Composting Facility versus Conditionally Exempt Agricultural Composting Facility

This revision has two agricultural composting categories.  The first type of agricultural composting facility is conditionally exempt from the composting regulations (Section 14.1.4 (B)).  Such a facility imports just enough wood chips, tree branches, sawdust and/or leaves to effectively compost the agricultural waste generated onsite.  These facilities may only distribute their compost to other agriculturally zoned properties.

The second classification specific to agricultural composting is Class I.  Class I applies to composting on agriculturally zoned properties.  Such a facility may import other vegetative waste (including pre-consumer food waste) but only in effective quantities to effectively compost the agricultural waste generated onsite.  Class I facilities may distribute their finished compost to any person.

Conditionally exempt small quantity composting facilities

The 2008 version of Section 14 provided a “backyard” composting exemption which the Department began applying to various scenarios that were not intended to be exempt under the backyard composting exemption.  Representatives of community gardens, restaurants and schools voiced their concerns about being in violation of the Regulations while attempting to compost food scraps and yard waste in small quantities.  The Department also heard from small businesses in mountain communities that collect less than 1 cubic yard per week of food waste from restaurants and homes and compost at their property.  Discussions with these composters led to the development of 2 exempt classifications in Section 14.1.4 for small, non agricultural composters and non-backyard composters.  

1.	Conditionally Exempt Small Quantity Composting Facilities

This exemption applies to people composting vegetative waste and food waste, but is limited to 100 cubic yards of Type 1 and up to 5 cubic yards of Type 2 and an additional or  100 cubic yards of Type 1 and up to an additional 10 cubic yards of Type 2 when composted in-vessel. 

These composting operations are required to maintain records of feedstocks composted to document their compliance with this exemption.

2.	Conditionally Exempt Small Quantity Commercial Composting Facilities

This exemption applies to people composting vegetative waste and food waste commercially, but is limited to 100 cubic yards of Type 1 and up to 5 cubic yards of Type 2, or  100 cubic yards of Type 1 and up to an additional 10 cubic yards of Type 2 when composted in-vessel.

A definition for commercial composting was created to describe Facilities composting commercially, meaning they are charging for composting service and/or selling their finished product are required to register with the Department.  Subsequent to registration, each small quantity composting facility must submit an annual report on the quantity of material composted and compost generated.

Restructuring of Section 14, Composting Facilities

Section 14 is now restructured so that feedstock types better align with facility classifications.  In the 2008 version of Section 14, Class I composting facilities compost Type 3 feedstocks, and Class V composting facilities compost Type 1 feedstocks.  Under the revised Regulation, Class 1 facilities compost Type 1 feedstocks.  The Commission hopes that the new structure will result in less confusion to newcomers to the composting industry.  

The revised Regulation also combines the previous Class IV and V facilities into one category with facilities that only compost type 1 feedstock (vegetative waste).   This means that yard waste composting facilities will be able to compost up to 50,000 cubic yards of material by submitting a registration, closure plan and obtaining financial assurance rather than having an engineering design and operations plan approved by the Department.  The Commission hopes that by reducing the requirements for yard waste composting, there will be a greater number of yard waste composting facilities around the state.

The 2008 version of Section 14 provided requirements for each class of composting facility in different sections of the Regulations.  For instance, Class I composting facility requirements are found in Sections 14.2.1, 14.3, 14.4, 14.5, 14.6, 14.7, 14.8, and 14.9.  The revised Regulation provides all requirements for each class in one section and only references the sampling and testing requirements in a separate section.  The Commission’s goal is to streamline the Regulations so each user has confidence that they are incorporating all of the requirements into their composing plan or Engineering Design and Operations Plan.  

Point of compliance for meeting odor requirements

Stakeholders asked if the standard for eliminating offsite odors is applied at the CD boundary or the property boundary.  There are many different possible scenarios, but the point of compliance, or the area where odors can extend the farthest from the facility, should be identified in the EDOP.  While reviewing an EDOP, the Division will apply the property boundary as the farthest point that odors can extend from the composting operation.

Pathogen reduction requirements – 15 (24 hour) days

The initial draft of this revision contained a requirement that a windrow composting facility verify a temperature of at least 131 degrees Fahrenheit for a minimum of fifteen (15) –twenty four (24) hour days or longer.  The twenty four (24) hour day requirement was added to clarify that taking a single temperature reading does not constitute one day per the fifteen day requirements.  The Department requires two temperature readings above 131 degrees Fahrenheit to verify that one day of pathogen destruction has occurred.  The 24 hour day language was removed after stakeholders voiced concern about new requirements and the Department does not have documentation showing that facilities are not meeting the 15 days above 131 degrees Fahrenheit as required.

Pathogen reduction-alternative testing criteria

Some composting facilities create soil amendments instead of a mature, finished compost, and they do not meet pathogen reduction requirements intentionally.  These facilities instead partially compost because they can keep more nitrogen in their soil amendments which are valuable nutrients.  This revision includes a provision in Section 14.6.(C) allowing facilities to request and alternative testing scheme so that they may keep making amendments that are not compost.

Low Permeability Workpad Requirements

The Department performed a literature review of studies that evaluated contact water (leachate) at composting sites.  The Department conducted the review to determine if there are certain types of composting facilities that should be exempt from the requirement to evaluate their site to determine if a low permeability workpad is necessary.  The 2008 version of Section 14 contains a requirement for facilities to evaluate onsite soils, operational procedures, feedstocks and workpad design to determine if groundwater impacts are likely.  If the evaluation indicates that groundwater impacts may occur, the Department may require a low permeability workpad area to manage contact water generated from composting operations.  Every study that evaluated contact water showed constituent concentrations that exceeded the groundwater standards, so the low permeability workpad evaluation requirement was left in the revision.

Initial drafts of the proposed 2016 amendments provided three prescriptive scenarios that could substitute for a low permeability workpad.  The initial drafts also included a fourth option, similar to the evaluation requirement in Section 14.3.1(C) of the existing regulations, for a facility to demonstrate that groundwater could be protected in using alternate engineering methods. All of these options are similar to the workpad requirements found in the USCC’s model regulations.  These options were removed from the proposed amendments after stakeholders commented that the options were too stringent.  The proposed amendments include language similar to the existing low permeability workpad evaluation requirement in Section 14.3.1(C) of the current regulations and do not pose any new requirements.

Regulatory Alternatives 

No other regulatory alternatives were evaluated. 

Cost/Benefit Analysis 

A cost-benefit analysis will be performed if requested by the Colorado Department of Regulatory Services.