First Regular Session Sixty-ninth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 13-0446.02 Kate Meyer x4348 SENATE BILL 13-057 SENATE SPONSORSHIP King, HOUSE SPONSORSHIP (None), Senate Committees House Committees State, Veterans, & Military Affairs A BILL FOR AN ACT Concerning the process for applying to operate a solid wastes disposal site and facility. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) In order to apply for a certificate of designation to own or operate a solid wastes disposal site and facility, an applicant must submit an engineered design and operations plan (plan) that assesses whether the proposed site and facility complies with regulations of the Colorado department of public health and environment (CDPHE). Currently, CDPHE or, at the applicant's election if given the option by CDPHE, a private contractor, reviews such plans. The bill divests CDPHE of the authority to review these plans, and instead requires applicants to utilize independent private parties to both prepare and review the plans. Completed plans are forwarded to CDPHE and the local governmental body to which the certificate of designation application is made. The bill also shifts the duty to solicit and accept public comments on a plan in an application for a solid wastes disposal site and facility from CDPHE to the governing body having jurisdiction over the application. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 30-20-101, add (2.2) and (3.6) as follows: 30-20-101. Definitions. As used in this part 1, unless the context otherwise requires: (2.2) "Engineered design and operations plan" means that portion of an application for a certificate of designation to own or operate a solid wastes disposal site and facility that addresses the technical aspects of facility design and operation in order to assess compliance with department regulations, including any relevant criteria established by the solid and hazardous waste commission, the water quality control commission, and the air quality control commission. (3.6) "Professional engineer" means an engineer licensed in accordance with part 1 of article 25 of title 12, C.R.S. The term includes any firm of licensed professional engineers. SECTION 2. In Colorado Revised Statutes, add 30-20-102.7 and 30-20-102.8 as follows: 30-20-102.7. Optional preapplication conference. (1) (a) Prior to submitting an application for a certificate of designation pursuant to section 30-20-103, a person desiring to own or operate a solid wastes disposal site and facility may conference with the department to discuss the scope of the project and the procedure for procuring a certificate of designation. At the conference, the department, to the extent that it is able, shall provide preliminary feedback regarding the proposed solid wastes site and facility. (b) At the person's request, and unless the department reasonably determines that the scope or complexity of the project requires an in-person conference, the preapplication conference may be conducted electronically or telephonically. (c) A preapplication conference conducted under this section shall be provided at no cost to the person requesting the conference. (2) (a) At, or in connection with, a preapplication conference conducted under subsection (1) of this section, the department shall provide the person with, and explain each component of, a checklist summarizing the documents and data necessary for a complete engineered design and operations plan required to obtain a certificate of designation issued under section 30-20-103. The checklist must contain, as appropriate, information describing or pertaining to: (I) A narrative description of the operations of the proposed solid wastes disposal site and facility; (II) A summary of the location and characteristics of the proposed site; (III) A geologic assessment; (IV) A hydrologic assessment; (V) An operations plan summarizing how the operations described in subparagraph (I) of this paragraph (a) will be carried out; (VI) Compliance monitoring; (VII) Closure and post-closure care, in accordance with section 30-20-104.5; (VIII) Required graphics, such as diagrams, maps, or images showing location, geology, topography, site plan, construction details, and cross sections; (IX) A technical review of the potential environmental and public health issues provided in section 30-20-110 raised by the proposed site and facility; and (X) Any other engineering, geological, hydrological, and operational data as may be required by the department by rule. (b) The checklist provided under this subsection (2) must also identify the persons responsible for certifying each component of the checklist. 30-20-102.8. Engineered design and operations plan - process - review - submission. (1) A person desiring to own or operate a solid wastes disposal site and facility must contract with professional engineers for both the preparation and the review of the engineered design and operations plan required to be submitted with the application for certificate of designation under section 30-20-103 (1). (2) A person applying to own or operate a solid wastes disposal site and facility under section 30-20-103 shall prepare, under the direction of and sealed by a professional engineer engaged by the person, an engineered design and operations plan for the proposed project. (3) (a) (I) (A) Upon completion of the engineered design and operations plan, the person applying for the solid wastes disposal site and facility certificate of designation must hire an independent professional engineer to review the plan. The professional engineer must ensure that the plan is both complete and affords compliance with applicable department rules. (B) The review of an application for a solid wastes disposal site and facility by an independent professional engineer must be based upon the same criteria as used by the department under section 30-20-103. (II) Prior to conducting the review, the independent professional engineer must provide to the person a written statement that the engineer is qualified to perform the review and that no conflicts of interest exist for the engineer to review the proposed project. The engineer with whom the person contracts must also provide proof of professional liability insurance, debt instrument, or some other method of financial assurance in the case of any negligent acts or omissions. (b) (I) If the independent professional engineer determines that the application or the engineered design and operations plan is either incomplete or noncompliant with the department laws and regulations, he or she shall so notify the applicant and offer the applicant an opportunity to provide such materials or explanations as the independent professional engineer determines are necessary to complete review of the application or to make necessary amendments to the application. (II) Once the independent professional engineer determines that the application is complete and compliant with department regulations, the independent professional engineer shall transmit to the department the completed and certified plan along with the engineer's verification of completion and compliance. (4) No later than five days after the date that the department receives the independent review completion and compliance verification, the department shall make a record of the application and forward the engineered design and operations plan and independent review completion and compliance verification to the governing body having jurisdiction over the application for certificate of designation records. SECTION 3. In Colorado Revised Statutes, amend 30-20-103 as follows: 30-20-103. Application for certificate. (1) (a) Any person desiring to own or operate a solid wastes disposal site and facility shall make application must apply to the governing body having jurisdiction over the area in which such the site and facility is or is proposed to be located for a certificate of designation. Such The person must include with the application shall be accompanied by a nonrefundable fee, to be in an amount established by the governing body having jurisdiction which fee shall be that is based on the anticipated costs that may be incurred by such the governing board in the application review and approval process. and shall not be refundable. The application shall must set forth the location of the site and facility; the type of site and facility; the type of processing to be used, such as sanitary landfill, composting, or incineration; the hours of operation; the method of supervision; the rates to be charged, if any; and such other information as may be required by the governing body having jurisdiction over the area. (b) The application shall also contain be accompanied by an engineered design and operations plan, forwarded by the department under section 30-20-102.8, that contains such engineering, geological, hydrological, and operational data as may be required by the department by rule. All such applications shall be referred to the department for review and for recommendation as to approval or disapproval, which shall be based upon criteria established by the solid and hazardous waste commission, the water quality control commission, and the air quality control commission. Such review and recommendation of an application by the department shall include a technical review of the environmental and public health issues provided in section 30-20-110 that are raised by the proposed site and facility. As a part of the department's review of an application for a solid wastes site and facility, the department shall provide a period of not less than thirty days during which members of the public may review and make comments concerning such application. (2) Upon receiving an application for a solid wastes disposal site and facility, the department shall perform an initial examination to establish the completeness of the information submitted. Such initial examination shall be completed within thirty days after the department receives such application. The department shall mail written notification to the applicant within such time period of the department's decision either to begin its review of such application or to reject such application because of incompleteness. As a part of the process of accepting and reviewing applications for certificates of designation, a governing body having jurisdiction shall provide a period of not less than thirty days during which members of the public may review and make comments concerning the application. The public comment period must be held prior to the public hearing conducted under section 30-20-104 (3) (a) and may coincide with the period during which notice is posted pursuant to that section. (3) After the initial approval of an application pursuant to the provisions of subsection (2) of this section, the department shall determine whether it shall complete the review of the application or whether it shall offer the applicant the option of having such application reviewed by a private contractor. Such determination shall be made pursuant to the provisions of section 30-20-103.7 (1). If the department reviews such application, the department shall complete such review within one hundred fifty days after the date of issuance of its initial approval of such application. SECTION 4. In Colorado Revised Statutes, 30-20-104, amend (3) (a) as follows: 30-20-104. Factors to be considered. (3) (a) Prior to the issuance of a certificate of designation, the governing body having jurisdiction shall must require that the report, which shall be submitted engineered design and operations plan is forwarded by the applicant under section 30-20-103, be reviewed and a recommendation as to approval or disapproval be made by the department pursuant to section 30-20-102.8 and shall must be satisfied that the proposed solid wastes disposal site and facility conforms to the local government's comprehensive land use plan and zoning restrictions, if any. Any technical conditions of approval made by the department in its final report shall be incorporated as requirements in the certificate of designation. The application, report of the department engineered design and operations plan, comprehensive land use plan, relevant zoning ordinances, and other pertinent information shall must be presented to the governing body having jurisdiction at a public hearing to be held after notice. Such The notice shall must contain the time and place of the hearing, shall state that the matter to be considered is the applicant's proposal for a solid wastes disposal site and facility, shall provide a description of such proposed site and facility, and shall provide a description of the geographic area that is within three miles of such proposed site and facility. The notice shall must be published in a newspaper having general circulation in the county or municipality in which the proposed solid wastes disposal site and facility is located at least ten but no more than thirty days prior to the date of the hearing. In addition, the notice of such public hearing shall must be posted at a conspicuous point in at least one location at the offices of the governing body having jurisdiction and in at least one location at the proposed site. Such The notice shall be posted for a period beginning at least thirty days before the public hearing and continuing through the date of such hearing. SECTION 5. In Colorado Revised Statutes, 30-20-104.5, amend (3) (b) (II) as follows: 30-20-104.5. Closure and postclosure care estimates - corrective action cost estimates - financial assurance requirements - rules. (3) (b) (II) The sufficiency of the financial assurance provided pursuant to the provisions of paragraph (a) of this subsection (3) for any solid wastes disposal site and facility that is in existence at the time the applicable regulations of the department become effective shall be reviewed pursuant to the procedures established by the department. Such review may be performed either by the department or by a private contractor hired by the department for the purpose of completing such review. The department is authorized to impose a fee for any such review that is performed by the department; except that such fee shall not exceed the actual documented costs incurred by the department in the performance of such review. Except as otherwise provided in this section, any such review that is performed by a private contractor shall be conducted pursuant to the provisions of section 30-20-103.7, as said section existed prior to the effective date of this subparagraph (II), as amended. SECTION 6. In Colorado Revised Statutes, 30-20-109, repeal (1) (d) as follows: 30-20-109. Commission to promulgate rules - definitions. (1) The solid and hazardous waste commission shall promulgate rules for the engineering design and operation of solid wastes disposal sites and facilities, which may include: (d) The establishment of a reviewing fee to be charged by the department for the review of any written recommendation and findings of a private contractor who has acted in lieu of the department to review an application for a solid wastes disposal site and facility under the provisions of section 30-20-103.7 for compliance with the state's requirements. Such fee shall not exceed actual and reasonable costs and shall not exceed five thousand dollars. SECTION 7. In Colorado Revised Statutes, 30-20-118, amend (1) as follows: 30-20-118. Solid waste management fund - created. (1) There is hereby created in the state treasury a fund to be known as the solid waste management fund, which shall consist of moneys collected pursuant to sections 30-20-103.7, 30-20-109 and 30-20-123, as well as that portion of the fee designated for solid waste management under section 25-16-104.5 (2), C.R.S. Such moneys shall be appropriated annually to the department by the general assembly. Except as provided in section 25-15-314, C.R.S., the moneys in the solid waste management fund shall not be credited or transferred to the general fund or any other fund of the state. SECTION 8. In Colorado Revised Statutes, 30-20-119, amend (2) as follows: 30-20-119. Disposal of low-level radioactive waste. (2) The appropriate governmental entity described in subsection (1) of this section shall require a technical review by the department of the low-level radioactive waste proposed to be disposed when permission is requested pursuant to subsection (1) of this section, and the department shall make a written recommendation to the governmental entity as to whether such waste should be accepted. The appropriate governmental entity shall charge a fee established pursuant to section 30-20-109 (1) (d) section 39-20-109 (1) (e) to the applicant for such technical review and transmit such fee to the department. SECTION 9. In Colorado Revised Statutes, repeal 30-20-103.7. SECTION 10. Act subject to petition - effective date - applicability. (1) This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 7, 2013, if adjournment sine die is on May 8, 2013); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2014 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor. (2) This act applies to applications for certificates of designation to operate solid wastes disposal sites and facilities that are submitted to governing bodies having jurisdiction on or after the applicable effective date of this act.