Current through Register Vol. 47, No. 17, September 10, 2024
21.1 July 28, 1994- Effective September 30,
1994
The following rules are hereby promulgated by the
Commissioner of the Department of Agriculture pursuant to his authority under
§
25-8-205.5(3)(b),
C.R.S. (1993 Supp.).
The purpose of these rules is to implement the provisions
of §
25-8-205.5(3) (b)
(1993 Supp.), also known as SB 90-126, by
adopting minimum performance standards and requirements for:
1) secondary containment of bulk
pesticides,
2) mixing and loading
pads where threshold amounts of pesticides are handled,
3) secondary containment of bulk commercial
fertilizers stored in threshold amounts,
4) mixing and loading pads where secondary
containment is required for commercial fertilizers, and
5) management of these facilities.
These rules will help achieve the overall purpose of SB
90-126, which is "to provide for the management of agricultural chemicals to
prevent, minimize, and mitigate their presence in groundwater", by intercepting
spills or leaks that may occur during the storage or handling of agricultural
chemicals.
The process for drafting the regulations and how to allow
maximum input and feedback from potentially regulated parties and utilize
existing knowledge to its fullest extent was considered. It was determined to
begin the development of the regulations by gathering information from other
states with similar laws, industry standards, similar federal regulations and
from individuals who had built secondary containment and mixing and loading
facilities. Second, a work group consisting of advisory committee members and
other individuals with experience in pesticide and fertilizer facilities was
formed to evaluate this information, provide input and develop draft
regulations. Third, the draft was presented to the full advisory committee for
review and revision. Fourth, the revised draft regulations were presented at a
series of meetings held throughout the state to receive feedback. The feedback
from the meetings was presented to the work group and the advisory committee.
The appropriate changes were then made and the regulations were prepared for
the formal hearings.
Formal hearings were held in five locations around the
state to provide the maximum opportunity for input. The hearings were held in
Lamar, Alamosa, Grand Junction, Sterling and Lakewood. The final hearing in
Lakewood was held in conjunction with an Agricultural Chemicals and Groundwater
Protection Advisory Committee meeting to allow members of the committee to hear
some of the testimony first hand.
Following the hearings the advisory committee discussed the
comments received at all of the hearings as well as written comments submitted
and changes were made that were appropriate based on the
testimony.
The major issues encountered were neither exclusively
factual nor exclusively policy. Consequently these issues were considered as
both factual and policy.
1) The
original statutory language that required development of the regulations was
the major issue during the drafting and public meeting phase of development.
The language was inconsistent with the manner in which the terms are commonly
used in industry. This caused extreme difficulty in developing workable rules
and regulations. Also, it was difficult for potentially regulated parties to
determine whether compliance would be necessary since the thresholds were
difficult to understand. SB 90-126 was amended by SB 93-114 during the 1993
legislative session to address this issue. Thresholds were changed to terms
commonly used by agricultural chemical users and separate thresholds were
established for pesticides and fertilizers.
2) The Environmental Protection Agency (EPA)
under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) is
currently developing similar regulations for the secondary containment of bulk
pesticides. The EPA published their draft regulations on February 11, 1994. The
state's proposed regulations were developed working as closely with EPA as
possible to prevent discrepancies. A thorough review of the Federal draft
regulations has been completed to identify any major conflicts between the two
sets of regulations. No significant changes were made to the state's proposed
regulations as a result of this review.
3) In determining the type of standards to
require, it was decided to use performance specifications as opposed to
prescribing type and size of materials. This will allow creativity and
tailoring for each individual facility so long as performance is maintained. It
will also allow for the use of new technology without a change being required
in the regulations. The proposed regulations contain separate requirements for
pesticides and commercial fertilizers. This allows for more relevant standards
that take into account the different requirements in handling required by the
labeling of the agricultural chemicals. Also, separate standards were developed
for dry agricultural chemicals and liquid agricultural chemicals. This was done
to address the inherent difference in their physical properties and they way
they move when a spill or leak occurs.
4) Many of the concepts and technology for
containment are relatively new and are therefore being continuously refined and
changed. In order to not restrict evolution of technology and designs
provisions were made for new technologies.
5) The law requires at least a three-year
phase-in period for compliance with the rules and regulations. However in
reviewing the costs involved, logistics and labor required, it was determined a
graduated compliance schedule would be appropriate. This will allow entities to
spread cost and work scheduling over a longer period of time.
6) Since performance specifications do not
prescribe specific construction practices and because the Colorado Department
of Agriculture does not have authority to approve construction plans prior to
the facility being built, it was decided to require that plans be signed and
sealed by a registered engineer in the State of Colorado. This will allow
individuals to have some assurance that the facility will meet the requirements
while insuring for the State that the facilities will perform adequately. A
"Colorado" registered engineer was required since the engineering board
requires all people who do engineering in Colorado to have a Colorado license.
One issue with the engineering requirement was the concern
of this cost to operators of a facility. To address this issue it was decided
to attempt to have generic plans that are available throughout the United
States signed and sealed by a registered engineer in Colorado and to make these
publicly available. This will minimize the cost and prevent each individual
needing a facility from having to hire an engineer and develop a new set of
plans.
7) Many secondary
containment facilities and mixing and loading pads have already been built
around the state. Most of these facilities will meet the proposed regulations,
however some may not meet all of the requirements. In order to address the
issue, grandfathering existing facilities for a period of time was debated.
However, it was determined that a separate set of requirements would have to be
developed to make sure all existing facilities to be grandfathered would at
least meet some minimal requirements. Because of this it was determined that
the graduated phase-in schedule could be used a means of grandfathering and
would give sufficient time for existing facilities to come into compliance
without the need for transitional regulations.
8) In both the proposed commercial fertilizer
and pesticide rule, whether secondary containment is required is a function of
the size of the container and how long material is stored in the container. A
short period of time is allowed for storing product above established quantity
thresholds before secondary containment is required. This is to allow for
handling or temporary storage of product such as may occur when a semi-trailer
is delivering material but is not unloaded immediately or for nurse trucks and
tanks that are not permanent to stay in an area for a small amount of time
without needing secondary containment. The proposed regulations specified 15
days for both pesticide and commercial fertilizer.
During the hearings, comments were received that indicated
15 days for commercial fertilizer tanks was to short of a time frame. The use
of "tip tanks", tanks with a capacity of ~6,000 gallons that are moved on
trailers and set up at various locations, are used fairly extensively in the
state to supply fertilizer to application equipment particularly during
planting time. These 6,000 gallon tanks exceed the threshold for secondary
containment of 5,000 gallons. These tanks are utilized primarily to avoid
hauling many small truck loads to a particular area during the time of
application and are very useful in Colorado since many times there are large
distances between the supplier and the application site. These tanks are set up
in this location until application is completed and then moved to another
area.
Unpredictable weather conditions was cited as the main
reason that 15 days was to short of a time. A storm could delay application
several days and could result in needing the product at one site longer than 15
days. Testimony received stated that these tanks provide a valuable service to
the dealer and the producer. It prevents hauling a large number of small loads
to one site which requires more loading and unloading of product increasing the
risk of a spill or leak as well as an increased risk of more transportation
related accidents. Temporary secondary containment of storage tanks of this
size is not easily accomplished. If it was set up it would be very expensive
based on the time it would be utilized. Since these tanks are not intended to
be permanent storage, are in place for a relatively short period of time and in
view of the associated risks of hauling and handling many loads of product it
was decided based on this testimony, to extend the time period for commercial
fertilizers to 30 days before secondary containment would be required.
9) Comments were received that due
to the fact fertilizer and pesticide tanks for chemigation are often located
near wells, they should in all cases, regardless of the size of the container
and amount of time they would be in place, should be required to have secondary
containment and a mixing and loading pad. However, the law dictates minimum
thresholds where the regulations for secondary containment apply and exempts
field mixing and loading from the regulations. In most situations, filling and
emptying chemigation tanks is field mixing and loading. Chemigation tanks
larger than the minimum threshold would require secondary
containment.
10) The issue of how
to contain rail cars which are in place longer than the threshold amount of
time and whether a mixing and loading pad would be required under rail cars
unloading in storage tanks requiring secondary containment was addressed. Rail
cars were exempted from secondary containment and mixing and loading pad
requirements. This is due to the fact it would be extremely difficult
logistically due to the size of the containment or mixing and loading area that
would be required. If the fertilizer and/or pesticide dealer cannot move the
cars a secondary containment facility or mixing and loading pad would be
required for each car. Also, the siding that the rail cars utilize is usually
owned by the railroad company which may or may not authorize building such a
facility. Provisions were made to require catch basins under the valves to
recover leaks or drips when loading or unloading occurs.
11) Requirements for location of facilities
with respect to wells, vulnerable water tables, surface water supplies and
flood plains were considered. However, it was decided not to establish
requirements. This was done to prevent conflict with local ordinances and
zoning regulations that could deal with this issue on a site specific basis.
Also, a properly constructed, maintained and operated facility should prevent
any escape of agricultural chemicals that could contaminate a nearby water
supply.
21.2 March 9,
2006 - Effective May 30, 2006
Statutory Authority:
These amendments to the Rules at
8 CCR
1203-12 Are adopted by the Commissioner of Agriculture
pursuant to his authority under §
25-8-205.5(3)(b),
C.R.S. (2005).
Purpose:
The purpose of this rulemaking is to make certain
amendments to the Rules to make non-substantive typographical and grammatical
corrections, to add a section to contain the statements of basis, specific
statutory authority and purpose, and to make minor substantive changes to
clarify the meaning, application and effect of the Rules. The Rule will also be
moved to the Conservation Services Division section of the CCR and renumbered
to 8 CCR
1206-1 to reflect a reorganization in the Colorado
Department of Agriculture moving the groundwater protection program to this
division.
These amendments make the following substantive
changes:
1. Parts 1.6 and 11.6. The
definition of "impervious" has been changed to incorporate the numerical
impermeability standard mandated for mixing and loading pads and secondary
containment structures elsewhere in the Rules.
2. Part 2.4. The greater than sign (>) for
100,000 tanks has been changed to a greater than or equal sign ([GREATER THAN
EQUAL TO]) to be consistent with the 10-year exemption in Part 3.5(a) of tanks
having a capacity of 100,000 gallons or more.
3. New Parts 2.5 and 12.5 have been added to
expressly state the implicit requirement in the existing Rules that a mixing
and loading area is required if secondary containment is required.
4. Parts 3.2 and 13.2. Subparagraphs (a) and
(b) have been revised to clarify that the capacity of the secondary containment
structure must be calculated as specified in the Rule. The parenthetical
numbers have been deleted to avoid confusion that could occur if a calculated
capacity does not exactly equal the stated percentage.
5. Parts 3.4(q)(1) and 13.4(r)(1) have been
revised to clarify that it is the facility manager's responsibility to obtain
the required confirmation of a liner's compatibility and durability from the
manufacturer.
6. Part 13.9. A new
subparagraph (e) has been added. This language was inadvertently omitted from
the original Rules and corresponds to the existing Part 3.10(d).
Basis:
The factual, legal and policy issues pertaining to the
amendment of these Rules are as follows:
1. The original rules were adopted on
September 30, 1994.
2. The proposed
amendments are the first changes made to the Rules since their
adoption.
3. During the ten years
that these Rules have been in place, the Department of Agriculture has
identified various changes that are needed to clarify their meaning and
effect.
4. The proposed changes
have been reviewed by the members of the Agricultural Chemicals and Groundwater
Protection Committee, an advisory body established by the State Agricultural
Commission that is composed of representatives from various stakeholders
including the Colorado Water Quality Control Commission, commercial pesticide
applicators, the green industry, agricultural chemical suppliers, agricultural
producers and the general public. The Committee members unanimously support the
adoption of these amendments.
21.3 August 9, 2011 - Effective October 15,
2011
Statutory Authority:
These amendments to the Rules at 8 C.C.R. 1203-12 are
adopted by the Commissioner of Agriculture pursuant to his authority under
§
25-8-205.5(3)(b),
C.R.S. (2010).
Purpose:
The purpose of this rulemaking is to make certain
amendments to the Rules to make minor substantive changes to clarify the
meaning, application, and effect of the Rules and to make non-substantive
typographical and grammatical corrections.
These amendments make the following substantive
changes:
1. Parts 3.3, 3.7, 4.2(f),
4.3, 13.3, 13.6, and 14.2(f). The word promptly has been changed to immediately
to more clearly reflect the urgent need to clean up discharges, spills, and
precipitation accumulations in fertilizer and pesticide secondary containment
structures and mixing and loading areas without delay.
2. Parts 3.5(a)(1)(iii), 3.13(a), 3.15, and
13.15. The word fluid has been changed to liquid to be consistent with the
remaining text.
3. Parts 6.3 and
16.3. Language has been added to clarify that only facilities constructed on or
after the effective date of these rules (September 30, 1994) are subject to the
provisions of these parts. Facilities constructed before the effective date of
these rules must still comply with all applicable, remaining parts of the
rules.
4. Part 12.1(a). This
paragraph has been revised to remove outdated references to DOT 57 and MACA 75
pesticide containers and replaced with reference to EPA's new container rule to
assure that containers exempted in Colorado meet EPA's standards.
5. Parts 12.1(a) and 13.17(b). The word
mini-bulk has been replaced with the words portable refillable containers to
reflect a more accurate, commonly used term for these portable pesticide
containers.
6. Part 13.15(a). The
word bulk has been inserted before the words pesticide rinsate to imply that
only pesticide rinsate that is stored in bulk quantities is subject to the
provisions of 13.15.
The following Parts contain non-substantive typographical
and/or grammatical changes that are intended only to clarify the original
wording and meaning of the existing Rules:
1. Part 1.1. The word plan has been changed
to plant; the intended word for this part.
2. Parts 3.10(a) and 13.9(a)(b). The word
shutoff has been changed to shut-off to be consistent with the remaining
text.
3. Parts 3.13(a), 4.0,
4.1(a)(b), 4.3, 13.12, 13.13(b), 13.15(a), 14.0, and 14.1(a)(b). The word bulk
has been moved and placed in front of the words liquid/dry to be consistent
with remaining text.
4. Parts 6.3
and 16.3 contain punctuation changes only. Factual and Policy Basis:
The factual, legal and policy issues pertaining to the
amendment of these Rules are as follows:
1. The original rules were adopted on
September 30, 1994.
2. The proposed
amendments are the second changes made to the Rules since their
adoption.
3. During the last five
years, the Department of Agriculture has identified various changes that are
needed to clarify their meaning and effect.
4. The proposed changes have been reviewed by
the members of the Agricultural Chemicals and Groundwater Protection Committee,
an advisory body established by the State Agricultural Commission that is
composed of representatives from various stakeholders including the Colorado
Water Quality Control Commission, commercial pesticide applicators, the green
industry, agricultural chemical suppliers, agricultural producers and the
general public. The Committee members unanimously support the adoption of these
amendments.
21.4
September 17, 2014 - Effective November 14, 2014
Statutory Authority:
This amendment to the Rules published at 8 C.C.R. 1206-1 is
adopted by the Commissioner of Agriculture pursuant to his authority under
§
25-8-205.5(3)(b),
C.R.S.
Purpose:
This amendment adds a new subpart (c) to part 12.2 to
exempt from these rules the inspection of bulk pesticide storage and
mixing/loading areas at public water treatment systems and domestic wastewater
treatment works.
Factual and Policy Basis:
The factual, legal and policy issues pertaining to the
amendment of these Rules are as follows:
1. The Department of Agriculture has
identified a duplication of State efforts regarding inspection at water
treatment facilities and this change is needed to clarify which facilities the
CDA will regulate.
2. The
Department has determined, in consultation with the CDPHE, that the CDPHE
inspection protocol adequately addresses pesticide storage at water treatment
facilities.
3. The Department needs
to more narrowly focus its rules regarding the storage of bulk pesticides. This
change will more clearly define which types of pesticide storage facilities
that the CDA will regulate. The rules are intended to focus on
agriculturally-related industries and this change will keep the CDA's efforts
focused on industries where CDA has its primary expertise.
4. The proposed changes have been reviewed by
the members of the Agricultural Chemicals and Groundwater Protection Advisory
Committee, an advisory body established by the State Agricultural Commission
that is composed of representatives from various stakeholders including the
Colorado Water Quality Control Commission, commercial pesticide applicators,
the green industry, agricultural chemical suppliers, agricultural producers,
and the general public. The Committee members unanimously support the adoption
of these amendments.
