Click here for Fiscal Note

Second Regular Session

Sixty-first General Assembly

LLS NO. 98­0323.01 JLB HOUSE BILL 98­1195

STATE OF COLORADO

BY REPRESENTATIVE Clarke;

also SENATOR Tanner.

LOCAL GOVERNMENT

A BILL FOR AN ACT

CONCERNING ADDITIONAL RESTRICTIONS ON APPLICATIONS FOR HIGH IMPACT SOLID WASTE MANAGEMENT FACILITIES.

Bill Summary

(Note: This summary applies to this bill as introduced and does not necessarily reflect any amendments that may be subsequently adopted.)

Creates a rebuttable presumption against approving any application to build or operate a high impact solid waste management facility that is within a 12­mile radius of a similar facility, a superfund site, or a disposal site for radioactive waste. Such presumption may be rebutted by a showing that:

Requires that any application for the construction or operation of a high impact solid waste management facility include findings by the host communities with respect to the above­described rebuttable presumption.

Repeals the provision that exempts transfer stations from state regulation as a solid wastes disposal site and facility.


Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  25­15­200.3, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read:

25­15­200.3.  Definitions. As used in this part 2, unless the context otherwise requires:

(5.5)  "HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY" HAS THE SAME MEANING AS SET FORTH IN SECTION 30­20­101 (2.4), C.R.S.

SECTION 2.  25­15­203 (1), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

25­15­203.  Grounds for approval. (1)  The board of county commissioners or the governing body of the municipality, as the case may be, may approve an application for a certificate of designation only upon a finding of all of the following factors:

(g)  DEFINITIVE FINDINGS BY HOST COMMUNITIES WITH RESPECT TO THE CRITERIA IN SUBSECTION (1.8) OF THIS SECTION CONCERNING THE REBUTTABLE PRESUMPTION AGAINST APPROVAL OF CERTAIN APPLICATIONS. THIS PARAGRAPH (g) SHALL APPLY ONLY TO APPLICATIONS CONCERNING HIGH IMPACT SOLID WASTE MANAGEMENT FACILITIES.

SECTION 3.  25­15­203, Colorado Revised Statutes, is amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS to read:

25­15­203.  Grounds for approval. (1.5)  NOTWITHSTANDING ANY PROVISION OF THIS SECTION TO THE CONTRARY, THE DEPARTMENT SHALL NOT PROCESS ANY APPLICATION FOR A HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY UNTIL HOST COMMUNITIES HAVE ISSUED DEFINITIVE FINDINGS WITH RESPECT TO THE CRITERIA SET FORTH IN SUBSECTION (1.8) OF THIS SECTION.

(1.8)  THERE SHALL BE A REBUTTABLE PRESUMPTION AGAINST THE APPROVAL OF ANY APPLICATION TO BUILD OR OPERATE A HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY WITHIN A TWELVE­MILE RADIUS OF ANOTHER HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY, A SITE LISTED ON THE NATIONAL PRIORITIES LIST PURSUANT TO THE FEDERAL "COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980", AS FROM TIME TO TIME AMENDED, A PERMANENT DISPOSAL SITE OR FACILITY FOR RADIOACTIVE MATERIALS AS DEFINED IN SECTION 25­11­101 (3), OR A URANIUM MILL TAILINGS DISPOSAL SITE AS SET FORTH IN SECTION 25­11­302. SUCH PRESUMPTION SHALL BE HONORED BY THE DEPARTMENT, ANY GOVERNING BODY HAVING JURISDICTION OVER THE SITE, AND ANY OTHER GOVERNMENTAL ENTITY WITH ZONING AUTHORITY CONCERNING SUCH FACILITY. SUCH PRESUMPTION MAY BE REBUTTED BY A SHOWING OF EITHER OF THE FOLLOWING FACTORS:

(a)  THAT NO OTHER SUITABLE SITE IS AVAILABLE FOR THE FACILITY WITHIN THE DISPOSAL DISTRICT, AS DESCRIBED IN SECTION 30­20­202 (1), C.R.S., OR, IF THE SITE IS NOT WITHIN A DISPOSAL DISTRICT, WITHIN A TWELVE­MILE RADIUS OF THE SITE EITHER BECAUSE OF GEOLOGICAL RESTRAINTS AT SUCH OTHER SITES OR BECAUSE ANY OTHER POTENTIAL SITE:

(I)  CONFLICTS WITH EXISTING COMPREHENSIVE LAND USE PLANS OF A LOCAL GOVERNMENTAL ENTITY;

(II)  DISTURBS THE HABITAT OF AN ENDANGERED SPECIES, AS RECOGNIZED BY THE UNITED STATES FISH AND WILDLIFE SERVICE OR THE COLORADO DEPARTMENT OF NATURAL RESOURCES;

(III)  WILL ADVERSELY AFFECT THE PUBLIC USE OF A LOCAL, STATE, OR FEDERAL FACILITY, INCLUDING PARKS AND WILDLIFE MANAGEMENT AREAS; OR

(IV)  IS LOCATED WITHIN A ONE­HUNDRED­YEAR FLOODPLAIN, REDUCES THE TEMPORARY WATER STORAGE CAPACITY OF A FLOODPLAIN, OR WOULD RESULT IN SUCH A DISPERSAL, LEACHING, OR SEEPAGE OF THE SOLID WASTE AS WOULD POSE A HAZARD TO HUMAN HEALTH OR THE ENVIRONMENT;

(b)  THAT THE HOST COMMUNITIES WILL ACCEPT THE SITING OF THE FACILITY BECAUSE OF INCENTIVES THAT MAY INCLUDE THE FOLLOWING:

(I)  INCREASED EMPLOYMENT OPPORTUNITIES;

(II)  REASONABLE FEES CHARGED TO THE HOST COMMUNITY FOR USE OF THE FACILITY THAT DO NOT EXCEED THE PREVAILING STATE AVERAGE;

(III)  CONTRIBUTIONS BY THE FACILITY TO THE COMMUNITY INFRASTRUCTURE;

(IV)  COMPENSATION TO ADJACENT INDIVIDUAL LANDOWNERS FOR ANY ASSESSED DECREASE IN PROPERTY VALUES;

(V)  SUBSIDIZATION OF COMMUNITY SERVICES.

SECTION 4.  25­15­502, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read:

25­15­502. Definitions. As used in this part 5, unless the context otherwise requires:

(4)  "HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY" HAS THE SAME MEANING AS IN SECTION 30­20­101 (2.4), C.R.S.

SECTION 5.  25­15­505 (1) (c) and (1) (d), Colorado Revised Statutes, are amended, and the said 25­15­505 (1) is further amended BY THE ADDITION OF A NEW PARAGRAPH, to read:

25­15­505.  Grounds for approval. (1)  A governing body having jurisdiction shall approve or disapprove an application for a hazardous waste incinerator site certificate of designation within one hundred eighty days after receiving such application. Such governing body having jurisdiction may approve an application for a certificate of designation upon a finding of all of the following factors:

(c)  That the applicant, taking into account such applicant's prior performance records, if any, in the treatment, storage, disposal, or incineration of hazardous waste, has documented sufficient reliability, expertise, and competency to operate and manage the proposed hazardous waste incinerator; and

(d)  That the proposed site conforms to the comprehensive land use plans and relevant land use regulations of the governing body having jurisdiction; except that, to the extent the commission has promulgated a regulation imposing a condition on incinerator operation pursuant to section 25­15­302, such comprehensive land use plans and regulations shall not impose a condition more stringent than that contained in such state regulation; AND

(e)  DEFINITIVE FINDINGS BY HOST COMMUNITIES WITH RESPECT TO THE CRITERIA IN SUBSECTION (3.5) OF THIS SECTION CONCERNING THE REBUTTABLE PRESUMPTION AGAINST APPROVAL OF CERTAIN APPLICATIONS. THIS PARAGRAPH (e) SHALL APPLY ONLY TO APPLICATIONS CONCERNING HIGH IMPACT SOLID WASTE MANAGEMENT FACILITIES.

SECTION 6.  25­15­505 (3), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

25­15­505.  Grounds for approval. (3) (c)  NOTWITHSTANDING ANY PROVISION OF THIS SECTION TO THE CONTRARY, THE DEPARTMENT SHALL NOT PROCESS ANY APPLICATION FOR A HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY UNTIL HOST COMMUNITIES HAVE ISSUED DEFINITIVE FINDINGS WITH RESPECT TO THE CRITERIA SET FORTH IN SUBSECTION (3.5) OF THIS SECTION.

SECTION 7.  25­15­505, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read:

25­15­505.  Grounds for approval. (3.5)  THERE SHALL BE A REBUTTABLE PRESUMPTION AGAINST THE APPROVAL OF ANY APPLICATION TO BUILD OR OPERATE A HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY WITHIN A TWELVE­MILE RADIUS OF ANOTHER HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY, A SITE LISTED ON THE NATIONAL PRIORITIES LIST PURSUANT TO THE FEDERAL "COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980", AS FROM TIME TO TIME AMENDED, A PERMANENT DISPOSAL SITE OR FACILITY FOR RADIOACTIVE MATERIALS AS DEFINED IN SECTION 25­11­101 (3), OR A URANIUM MILL TAILINGS DISPOSAL SITE AS SET FORTH IN SECTION 25­11­302. SUCH PRESUMPTION SHALL BE HONORED BY THE DEPARTMENT, ANY GOVERNING BODY HAVING JURISDICTION OVER THE SITE, AND ANY OTHER GOVERNMENTAL ENTITY WITH ZONING AUTHORITY CONCERNING SUCH FACILITY. SUCH PRESUMPTION MAY BE REBUTTED BY A SHOWING OF EITHER OF THE FOLLOWING FACTORS:

(a)  THAT NO OTHER SUITABLE SITE IS AVAILABLE FOR THE FACILITY WITHIN THE DISPOSAL DISTRICT, AS DESCRIBED IN SECTION 30­20­202 (1), C.R.S., OR, IF THE SITE IS NOT WITHIN A DISPOSAL DISTRICT, WITHIN A TWELVE­MILE RADIUS OF THE SITE EITHER BECAUSE OF GEOLOGICAL RESTRAINTS AT SUCH OTHER SITES OR BECAUSE ANY OTHER POTENTIAL SITE:

(I)  CONFLICTS WITH EXISTING COMPREHENSIVE LAND USE PLANS OF A LOCAL GOVERNMENTAL ENTITY;

(II)  DISTURBS THE HABITAT OF AN ENDANGERED SPECIES, AS RECOGNIZED BY THE UNITED STATES FISH AND WILDLIFE SERVICE OR THE COLORADO DEPARTMENT OF NATURAL RESOURCES;

(III)  WILL ADVERSELY AFFECT THE PUBLIC USE OF A LOCAL, STATE, OR FEDERAL FACILITY, INCLUDING PARKS AND WILDLIFE MANAGEMENT AREAS; OR

(IV)  IS LOCATED WITHIN A ONE­HUNDRED­YEAR FLOODPLAIN, REDUCES THE TEMPORARY WATER STORAGE CAPACITY OF A FLOODPLAIN, OR WOULD RESULT IN SUCH A DISPERSAL, LEACHING, OR SEEPAGE OF THE SOLID WASTE AS WOULD POSE A HAZARD TO HUMAN HEALTH OR THE ENVIRONMENT;

(b)  THAT THE HOST COMMUNITIES WILL ACCEPT THE SITING OF THE FACILITY BECAUSE OF INCENTIVES THAT MAY INCLUDE THE FOLLOWING:

(I)  INCREASED EMPLOYMENT OPPORTUNITIES;

(II)  REASONABLE FEES CHARGED TO THE HOST COMMUNITY FOR USE OF THE FACILITY THAT DO NOT EXCEED THE PREVAILING STATE AVERAGE;

(III)  CONTRIBUTIONS BY THE FACILITY TO THE COMMUNITY INFRASTRUCTURE;

(IV)  COMPENSATION TO ADJACENT INDIVIDUAL LANDOWNERS FOR ANY ASSESSED DECREASE IN PROPERTY VALUES;

(V)  SUBSIDIZATION OF COMMUNITY SERVICES.

SECTION 8.  30­20­100.5, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read:

30­20­100.5.  Legislative declaration. (2)  THE GENERAL ASSEMBLY HEREBY FINDS, DETERMINES, AND DECLARES THAT, WHILE HIGH IMPACT SOLID WASTE MANAGEMENT FACILITIES ARE ESSENTIAL, SOME FACILITIES MAY PLACE A HARDSHIP ON THE HOST COMMUNITY WITHOUT AWARDING RECIPROCAL BENEFITS TO THE LOCAL RESIDENTS OF SUCH COMMUNITY. THE GENERAL ASSEMBLY FURTHER FINDS THAT NATIONAL TRENDS INDICATE A TENDENCY TO CONCENTRATE HIGH IMPACT SOLID WASTE MANAGEMENT FACILITIES IN LOWER­INCOME OR MINORITY COMMUNITIES. THE GENERAL ASSEMBLY HEREBY DECLARES THAT THIS STATE SHALL TAKE SUCH MEASURES AS ARE NECESSARY TO PREVENT ANY COMMUNITY IN THIS STATE FROM BECOMING AN INVOLUNTARY HOST TO HIGH IMPACT SOLID WASTE MANAGEMENT FACILITIES.

SECTION 9.  30­20­101 (2.5), Colorado Revised Statutes, is amended, and the said 30­20­101 is further amended BY THE ADDITION OF THE FOLLOWING NEW SUBSECTIONS, to read:

30­20­101.  Definitions. As used in this part 1, unless the context otherwise requires:

(2.1)  "GOVERNING BODY HAVING JURISDICTION" MEANS THE BOARD OF COUNTY COMMISSIONERS IF A SITE AND FACILITY IS LOCATED IN ANY UNINCORPORATED PORTION OF A COUNTY AND MEANS THE GOVERNING BODY OF THE APPROPRIATE MUNICIPALITY IF A SITE AND FACILITY IS LOCATED WITHIN AN INCORPORATED AREA.

(2.2)  "HAZARDOUS WASTE" HAS THE SAME MEANING AS SET FORTH IN SECTION 25­15­101 (6), C.R.S.

(2.3)  "HAZARDOUS WASTE DISPOSAL SITE" HAS THE SAME MEANING AS SET FORTH IN SECTION 25­15­200.3 (5), C.R.S.

(2.4)   "HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY" MEANS A SOLID WASTES DISPOSAL SITE AND FACILITY AS DEFINED IN SECTION 30­20­101 (8), HAZARDOUS WASTE INCINERATOR AS DEFINED IN SECTION 25­15­502 (3), C.R.S., OR HAZARDOUS WASTE TREATMENT, STORAGE, OR DISPOSAL SITE OR FACILITY AS DEFINED IN SECTION 25­15­101 (18), C.R.S.

(2.5)  "Governing body having jurisdiction" means the board of county commissioners if a site and facility is located in any unincorporated portion of a county and means the governing body of the appropriate municipality if a site and facility is located within an incorporated area. "HOST COMMUNITY" MEANS ANY GOVERNMENTAL UNIT WITH ZONING AUTHORITY AND LOCATED WHOLLY OR PARTIALLY WITHIN A TWELVE­MILE RADIUS OF THE SITE OF A PROPOSED HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY.

SECTION 10.  Repeal.  30­20­102 (7), Colorado Revised Statutes, is repealed as follows:

30­20­102.  Unlawful to operate site and facility without certificate of designation ­ exceptions. (7)  A transfer station shall not be deemed to be a solid wastes disposal site and facility and shall not require a certificate of designation as a solid wastes disposal site and facility. The department shall promulgate regulations establishing health and safety standards for the operation of transfer stations.

SECTION 11.  30­20­104 (1), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

30­20­104.  Factors to be considered. (1)  In considering an application for a proposed solid wastes disposal site and facility, the governing body having jurisdiction shall take into account:

(e)  DEFINITIVE FINDINGS BY HOST COMMUNITIES WITH RESPECT TO THE CRITERIA IN SUBSECTION (4) OF THIS SECTION CONCERNING THE REBUTTABLE PRESUMPTION AGAINST APPROVAL OF CERTAIN APPLICATIONS. THIS PARAGRAPH (e) SHALL APPLY ONLY TO APPLICATIONS CONCERNING HIGH IMPACT SOLID WASTE MANAGEMENT FACILITIES.

SECTION 12.  30­20­104 (3), Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW PARAGRAPH to read:

30­20­104.  Factors to be considered. (3) (c)  NOTWITHSTANDING ANY PROVISION OF THIS SECTION TO THE CONTRARY, THE DEPARTMENT SHALL NOT PROCESS ANY APPLICATION FOR A HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY UNTIL HOST COMMUNITIES HAVE ISSUED DEFINITIVE FINDINGS WITH RESPECT TO THE CRITERIA SET FORTH IN SUBSECTION (4) OF THIS SECTION.

SECTION 13.  30­20­104, Colorado Revised Statutes, is amended BY THE ADDITION OF A NEW SUBSECTION to read:

30­20­104.  Factors to be considered. (4)  THERE SHALL BE A REBUTTABLE PRESUMPTION AGAINST THE APPROVAL OF ANY APPLICATION TO BUILD OR OPERATE A HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY WITHIN A TWELVE­MILE RADIUS OF ANOTHER HIGH IMPACT SOLID WASTE MANAGEMENT FACILITY, A SITE LISTED ON THE NATIONAL PRIORITIES LIST PURSUANT TO THE FEDERAL "COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT OF 1980", AS FROM TIME TO TIME AMENDED, A PERMANENT DISPOSAL SITE OR FACILITY FOR RADIOACTIVE MATERIALS AS DEFINED IN SECTION 25­11­101 (3), C.R.S., OR A URANIUM MILL TAILINGS DISPOSAL SITE AS DEFINED IN SECTION 25­11­302, C.R.S. SUCH PRESUMPTION SHALL BE HONORED BY THE DEPARTMENT, ANY GOVERNING BODY HAVING JURISDICTION OVER THE SITE, AND ANY OTHER GOVERNMENTAL ENTITY WITH ZONING AUTHORITY CONCERNING SUCH FACILITY. SUCH PRESUMPTION MAY BE REBUTTED BY A SHOWING OF EITHER OF THE FOLLOWING FACTORS:

(a)  THAT NO OTHER SUITABLE SITE IS AVAILABLE FOR THE FACILITY WITHIN THE DISPOSAL DISTRICT, AS DESCRIBED IN SECTION 30­20­202 (1), OR, IF THE SITE IS NOT WITHIN A DISPOSAL DISTRICT, WITHIN A TWELVE­MILE RADIUS OF THE SITE EITHER BECAUSE OF GEOLOGICAL RESTRAINTS AT SUCH OTHER SITES OR BECAUSE ANY OTHER POTENTIAL SITE:

(I)  CONFLICTS WITH EXISTING COMPREHENSIVE LAND USE PLANS OF A LOCAL GOVERNMENTAL ENTITY;

(II)  DISTURBS THE HABITAT OF AN ENDANGERED SPECIES, AS RECOGNIZED BY THE UNITED STATES FISH AND WILDLIFE SERVICE OR THE COLORADO DEPARTMENT OF NATURAL RESOURCES;

(III)  WILL ADVERSELY AFFECT THE PUBLIC USE OF A LOCAL, STATE, OR FEDERAL FACILITY, INCLUDING PARKS AND WILDLIFE MANAGEMENT AREAS; OR

(IV)  IS LOCATED WITHIN A ONE­HUNDRED­YEAR FLOODPLAIN, REDUCES THE TEMPORARY WATER STORAGE CAPACITY OF A FLOODPLAIN, OR WOULD RESULT IN SUCH A DISPERSAL, LEACHING, OR SEEPAGE OF THE SOLID WASTE AS WOULD POSE A HAZARD TO HUMAN HEALTH OR THE ENVIRONMENT;

(b)  THAT THE HOST COMMUNITIES WILL ACCEPT THE SITING OF THE FACILITY BECAUSE OF INCENTIVES THAT MAY INCLUDE THE FOLLOWING:

(I)  INCREASED EMPLOYMENT OPPORTUNITIES;

(II)  REASONABLE FEES CHARGED TO THE HOST COMMUNITY FOR USE OF THE FACILITY THAT DO NOT EXCEED THE PREVAILING STATE AVERAGE;

(III)  CONTRIBUTIONS BY THE FACILITY TO THE COMMUNITY INFRASTRUCTURE;

(IV)  COMPENSATION TO ADJACENT INDIVIDUAL LANDOWNERS FOR ANY ASSESSED DECREASE IN PROPERTY VALUES;

(V)  SUBSIDIZATION OF COMMUNITY SERVICES.

SECTION 14.  Effective date ­ applicability. This act shall take effect July 1, 1998, and shall apply to applications submitted on or after said date.

SECTION 15.  Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.