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, and5) 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.