Pueblo County Code - Title 17 - Division III - Hazardous Waste Incinerator or Processor Site Certificate of Designation

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17.176.010 Purpose.

The purpose of these regulations is to supplement and clarify the procedural requirements attendant upon the application for and issuance of a Certificate of Designation sought by an applicant pursuant to the provisions of the State Hazardous Waste Incinerator or Processor Siting Act, hereinafter, “the Act”; C.R.S. 25-15-501 through 515, as amended.

17.176.020 Conflict with State Law.

In the event that any provision of these regulations is in direct conflict with the provisions of C.R.S. 25-15-501 through 515, as amended, then the provisions of C.R.S. 25-15-501 through 515, as amended, shall prevail.

17.176.030 Construction and Interpretation.

These regulations shall be construed in accordance with their express purpose.  Nothing herein shall be construed or interpreted to limit the power or authority of the Board of County Commissioners granted by the provision of the Act.

17.176.040 Severability.

If any of the provisions of these regulations is determined to be unconstitutional or otherwise invalid by a court of competent jurisdiction, such determination shall not affect the validity or enforceability of the other provisions hereof.

17.176.050 Application Requirements.

A.  General.  All applications for a Certificate of Designation to permit the location, construction, operation or closure of a hazardous waste incinerator or processor in the unincorporated portions of Pueblo County shall comply with the provisions of the Act and the requirements of these regulations.  Applications not in compliance with such provisions and requirements shall be deemed to have not been received by Pueblo County and no further action shall be taken by Pueblo County on such an application until the same is brought into compliance. 

B.  Required Submittals.  All applications for a Certificate of Designation pursuant to the Act shall include or be accompanied by the following information:

1.   The location of the proposed incineration or processing site and the location of the proposed incinerator or processor on that site. 

2.   The owner or owners of the land upon which the proposed incinerator or processor site is to be located, as well as the person, persons, entity, or entities proposed to construct, operate, and maintain and demolish or remove such facility upon closure or project completion.  Information for all such persons or entities should include, but not be limited to, name, title, address, telephone number, fax, email address, and designated contact person along with that person’s name, title, address, telephone number, fax, and email address.

3.   The types of hazardous waste or materials to be accepted or rejected for incineration or  processing and the current location of the hazardous waste and/or materials to be accepted.

4.   The type or types of incinerator or processor by-product requiring disposal and disposal plans.

5.   The method of supervision of the incineration or processing process.

6.   All anticipated access routes to be used to and from the site within Pueblo County.

7.   A complete copy of all applications for all permits made by the applicant or its agents to the State of Colorado, the United States, or any local government, or any agency or agencies thereof including, but not limited to, the Colorado Department of Public Health and Environment (CDPHE) and the Environmental Protection Agency (EPA), related to the proposed incinerator or processor site.  Specifically, if the applicant has applied to the State for a permit under the Resource Conservation and Recovery Act of 1976, 42 U.S.C., Section 6901, et. seq. (RCRA) and/or regulations promulgated pursuant thereto, whether such application is for a Part A, Part B, RD&D, or any other type of permit, a complete copy of that application shall be submitted.  In addition, the applicant must submit a complete copy of any support documentation, including but not limited to, Multi-Pathway Health Risk Assessment, or any similar assessment, which has been performed in connection with the proposed incinerator or processor by or at the request of any federal, state, or local agency.

8.   A complete copy of all findings and conclusions made by the State of Colorado, the United States, or any local government, or any agency or agencies thereof in conjunction with its review of the permit applications referenced in paragraph 7 of this subsection, as well as a complete copy of any permits issued by the State of Colorado, the United States, or any local government, or any agency or agencies thereof, to the applicant or its agents.  No application for a Certificate of Designation under the Act and these regulations shall be complete or deemed to have been received by Pueblo County unless all other permit approvals required by State and/or federal law, have been granted, approved or issued and proof of such grant, approval or issuance has been submitted with the application for Certificate of Designation.  The issuance of any draft permits by the CDPHE or other regulatory body shall constitute issuance of those permits.  If any final permit is different in any respect from its draft permit, then the owner or operator shall refer those differences to the County for determination and direction as to whether the difference constitutes a substantial change for which an amendment is required pursuant to Section 17.176.090.

9.   Written statements along with supporting documentation available to the applicant addressing, in detail, the applicant’s position on each of the following issues:

a.      Whether the proposed incinerator or processor at the particular identified site poses a significant threat to the health and/or safety of the public and/or the environment considering: 

i.    the density of population in the areas neighboring the proposed site; 

ii.    the density of population in areas adjacent to access roadways to the site and which lie within a fifty mile radius of the proposed site; and 

iii.   the risk of accidents occurring during the transportation of any wastes to, from, or at the proposed site. 

b.      Whether the applicant, the owner, or any agent engaged or to be engaged by the applicant or owner has the financial ability to construct and operate the proposed incinerator or processor, and to perform required post-operation closure and clean-up activities.

c.      Whether, considering its prior performance records, the applicant, owner, or any agent engaged or to be engaged by the applicant or owner has, and can document that it has sufficient reliability, expertise, and competency to operate and manage the proposed hazardous waste incinerator or processor.

d.      Whether the proposed site conforms to the comprehensive land use plans and relevant land use regulations of Pueblo County, which regulations include, but are not limited to, Titles 12, 16, and 17 of the Pueblo County Code, as amended.  Supporting documentation should include, but not be limited to: plans for road and/or rail access to the facility; plans for construction and improvements supporting the related transportation needs of the facility during the construction, operation, maintenance, and demolition phases of the project; other infrastructure improvement plans such as communication systems, electrical, gas, water, and sewer utility systems; drainage plans; fire suppression plans; hazardous material spill mitigation and clean up plans; proposed hours of operation; and expected duration of the project.

e.      What effect the planned incinerator or processor will have on the surrounding property taking into consideration the type of processing to be used and wind and climatic conditions.  Supporting documentation should include, but not be limited to, a study or studies of the impact that the construction, operation, maintenance, and demolition or removal of the proposed incinerator or processor will have on any agricultural activities surrounding the site, the infrastructure surrounding the site (roads, bridges, rail, electricity, water supplies, sewer, and gas, etc.), and community support services (schools, housing, social services, law enforcement, emergency services, etc.).  The supporting documentation may also, but is not required to, include any proposed plans or recommendations of the applicant or its agents of how to best address or mitigate those impacts.

f.       A statement from the applicant, owner or agent of the facility that any and all construction done in support of this project will be consistent with County building code requirements, if applicable. 

10.    The application fees required by Section 17.176.070 of these regulations. 

11.    If a phased project is contemplated by the owner or applicant, whether at the construction operation, maintenance, or demolition or removal stage, a plan describing each such phase of the project and all activities that are contemplated under each such phase.  The plan should describe each phase of the project in detail to the greatest extent possible based upon the information available at the time the application is submitted.  The applicant shall send updates to the County of new details of the plan as those details are determined and developed throughout the course of the application submittal and review process, as well as throughout the development of the project after a certificate is granted. 

12.    The annual estimated operating cost of or the annual estimated gross revenue received for the incineration or processing of hazardous wastes by the hazardous waste incinerator or processor. 

C.  Other Information.  The applicant may submit such other information it deems relevant to the consideration of its application for a Certificate of Designation. 

In addition, Pueblo County may request additional information and/or documentation from the applicant, which it reasonably deems relevant to its review of the application.  The applicant, owner, or any agent shall provide such additional information along with all other information and submittals required by the Act or these Regulations and the Certificate of Completeness shall not be issued until such additional information has been submitted.  However, if such request or requests for such additional information are not made by the County at the time of the initial filing of the application, or within one hundred and twenty (120) days of the submission of all other information or documentation required by the Act or these Regulations, then such additional requests for information shall not prevent or delay the issuance of the Certificate of Completeness referenced in Article III of these regulations.

D.  Submission.  The applicant shall submit the original and ten (10) copies of the completed application to the Director of Planning and Development, Pueblo County, Colorado, 229 West 12th Street, Pueblo, Colorado 81003-2819.  All sections of the application do not have to be submitted at the same time for review.  The applicant may submit various sections of the application over a period of time in order to allow an expedited staff review by the County.  However, the County will not issue a Certificate of Completeness pursuant to Section 17.176.060 until all requirements contained in the Act and these Regulations are complied with or addressed.  The submittal of an application for a Certificate of Designation may be submitted concurrently with any other permit applications applicable to the proposed project, including an application submitted to the State of Colorado for a RCRA permit.  A project may be pursued in phases with the various phases being considered for permitting in a single application with conditions, multiple applications, or with succeeding phases being considered as amendments to the original application.  The applicant must inform the County if it proposes to pursue the project in phases.  The County, within its sole discretion, shall determine if phasing is appropriate for a project, and, if so, whether the contemplated phasing shall be permitted through conditions to a single application and certificate of designation, multiple applications and certificates, or amendments to an original application and certificate.  The County shall make such determination as to the appropriateness of a project for phasing and whether it shall be pursued through conditions, multiple applications, or amendments within thirty (30) days of a request for such determination by an applicant. 

E.  Verification.  Each application for a Certificate of Designation under the Act shall be verified by an officer of the applicant authorized to act on its behalf and shall include a verified representation that all representations in the application are true and accurate.

17.176.060 Certificate of Completeness.

Within a reasonable period of time not to exceed one hundred twenty (120) days after the receipt of an application for a Certificate of Designation pursuant to the Act and these regulations, the County shall: 

A.   Inform the applicant in writing of any deficiencies in the application in view of the requirements of the Act and these regulations, shall state with reasonable specificity each deficiency in the application and shall refer the applicant to the corresponding sections of the Act and/or these regulations addressing the matters in question; or

B.   Issue the applicant a written notice entitled “Certificate of Completeness” signed by the Director of Planning and Development certifying that the application is complete in accordance with the requirements of the Act and these regulations.

In the case of a County authorized phased project, the County shall inform the applicant of deficiencies or issue a Certificate of Completeness for each phase proposed in a separate application or as an amendment to the original permit.

In the event that an applicant is notified of deficiencies pursuant to subsection A. of this Section, it shall have a period of one hundred and eighty (180) days from the date of its receipt of the notice to correct the deficiency in the application.  If the applicant is unable to correct the deficiency within that one hundred and eighty day period, it may request an extension of time within which to make that correction, and such requests shall be granted by the County if good cause is shown.  In the event that no Certificate of Completeness is issued to the applicant by the conclusion of that one hundred and eighty (180) day period, and no extension for good cause has been granted, then the application shall lapse and no further action shall be taken by the County with regard thereto. 

Upon the date of the issuance of a Certificate of Completeness the one hundred and eighty (180) day review period specified in C.R.S. 25-15-505(1) shall begin.  The County may approve or disapprove an application at any time within that one hundred and eighty (180) day period, and the applicant may request an expedited review by the County.  The issuance of a Certificate of Completeness shall not serve as the basis of an inference, nor shall it give rise to a presumption of approval of the Certificate of Designation.

17.176.070 Fees.

The application shall be accompanied by a fee payable to Pueblo County in cash or certified funds in an amount to be certified to the applicant by Pueblo County at or near the time that the application is submitted.  In no event shall the required fee exceed One Hundred Thousand Dollars ($100,000.00).  Such fee shall be based upon the reasonable anticipated costs that may be incurred by Pueblo County in the application review and approval process.  Once such reasonable anticipated costs have been determined by Pueblo County, it shall certify the same to the applicant and, thereafter, the applicant shall pay said amount in order to receive further consideration of its application.  Pueblo County shall provide an accounting of the actual costs incurred in its review of the application and in the hearing process and shall refund any payment in excess of said actual costs within ninety (90) days after completion of the certification process.  An application fee shall accompany each separate application for a Certificate of Designation.  A phased project may be subject to only one application fee if it is determined by the County that the phases are simply parts or elements of a single project.

17.176.080 Hearing and Decision.

After the receipt of an application for a Certificate of Designation and the issuance of a Certificate of Completeness, the County shall schedule and hold a public hearing on the application and shall render a decision on the application in accordance with the express provisions of the Act and pursuant to the substantive standards set forth therein.  Any hearing conducted in accordance with the Act and these regulations shall be conducted in accordance with the standard rules and procedures of the County for land use matters, and shall include, but not be limited to, the following: 

1.   The hearing will be conducted by the Pueblo County Board of County Commissioners (BOCC) as a quasi-judicial hearing in accordance with standard administrative rules of evidence.

2.   The entire hearing will be open to the public and interested parties and the public will be allowed to participate in the hearing.

3.   Thirty days notice for the time and place of the hearing will be given by posting and publication.

4.   Relevant written and oral testimony will be accepted from the applicant, other governmental agencies and interested citizens.  Witnesses will be required to give sworn testimony.  All parties at the hearing have the right to be represented by counsel.  The hearing will be recorded.

5.   Notification of approval or denial of the certificate will be issued within five days after such determination is made by the BOCC.

6.   Any appeal of the hearing decision shall be made to the Pueblo County District Court, 10th Judicial District, State of Colorado pursuant to Colorado law.

17.176.090 Modifications and Amendments.

The certificate holder shall notify the County of any proposed modifications or changes in operations, ownership or design for its hazardous waste incinerator or processor, which involve matters that are the subject of or contained in the Certificate of Designation, its application, amendments or previous modifications.  All such modifications and changes shall be referred to as modifications under this Article.  Modifications that are internal to the facility and that are not expected to have external impacts shall not require advance notice to the County if: a) such notice is impracticable; and b) notice is provided to the County within three (3) business days of implementation of the modification.  The certificate holder shall assume all risks with respect to any modification implemented prior to notice pursuant to this paragraph.

Within ten (10) days of receipt of a modification notice, the County shall notify the certificate holder of the County’s classification of the modification.

1.   Class A modifications are those for which the County requires no additional information or input from the certificate holder.  No further action shall be taken by the County on Class A modifications. 

2.   Class B modifications are those for which the County requires additional information or input.  If the County classifies a modification as Class B, it shall modify the certificate holder whether the informal or formal process described below is contemplated.  Modifications initially categorized as informal or formal may later be recategorized by the County.

a.   Informal Class B modifications require only additional information, explanation or discussion with the County. The County shall notify the certificate holder of any decision rendered within five (5) business days of its receipt of the additional information.

b.   Formal Class B modifications require a more detailed review process.

i.    The County shall provide a twenty day public notice and comment period for formal Class B modifications.  Any additional information provided by the certificate holder shall be made available to the public for review during the comment period.  Class B modifications may also necessitate a hearing and/or an amendment to the Certificate of Designation.

ii.    If a hearing is required, a notice shall be issued at least ten (10) days before the hearing and that hearing shall be held within thirty (30) days of the close of the public comment period.  The County shall notify the certificate holder of any decision rendered within five (5) days of completion of the hearing. c.   No modification selected for the Class B review process shall be implemented until that process is complete. 

3.   Class C modifications are those that would modify the ownership, design, or operations described in the existing Certificate of Designation so substantially that an amendment process is warranted.  If a modification is classified as a Class C modification, the certificate holder shall proceed with an amendment application pursuant to below.

The certificate holder shall supply to the County and maintain a list of all modifications notices produced pursuant to this Article.  The certificate holder shall also maintain in its files or records all supporting documentation or drawings related to such notices. 

The County may change its initial classification of a proposed modification if it deems such change necessary.  Members of the public may make a request to the County to change its initial classification within thirty (30) days of the County’s receipt of the modification notice. 

Any certificate holder desiring to amend its certificate of designation, or required to do so pursuant to a County classification of a modification as a Class C modification, may do so by filing an application for such amendment with the County.  The application for an amendment shall include and address all of the information and submittal requirements contained in these regulations for an application for the initial certificate and shall be processed by the County in the same manner as an initial certificate application.  Information or submittals that remain unchanged from the initial certificate application need not be readdressed or resubmitted, but, instead, the unchanged section or submittal may be incorporated by reference into the amendment application.

17.176.100 Revocation or Suspension.

Any certificate issued by the County pursuant to the Act and these regulations is subject to revocation or suspension for those violations outlined in the Act. 

Notice of revocation or suspension shall be sent in writing to the certificate holder at the address on file with the Planning and Development Office.  Copies of all such notices shall be sent to the owner and operator of the subject incinerator or processor.  The notice shall indicate the violation and any time period, if applicable, for correction of the violation.  Depending upon the severity or urgency of the violation, a certificate may be summarily suspended, pending hearing, as deemed appropriate by the County.  Notices will indicate whether operations must stop immediately, or continue until completion of the hearing.  The Board of County Commissioners may cancel the hearing on the matter if the violation is corrected to the satisfaction of the County prior to the scheduled hearing date.

Hearings on any revocation or suspension shall be held within sixty (60) days of the date of mailing of the notice.  The hearing shall be conducted by the Board of County Commissioners in accordance with the provisions of Section 17.176.080.  At any such hearing, all information, evidence, allegations and arguments supporting the alleged violation shall be presented to the Board of County Commissioners.  The certificate holder shall have an opportunity to contest the matter and present its own information, evidence and arguments.  The hearing may be continued until all matters of dispute are properly addressed to the satisfaction of the Board of County Commissioners.

The Board of County Commissioners will give its decision on the matter within thirty (30) days after the conclusion of the hearing.

The certificate holder shall correct any matter found by the Board of County Commissioners to be a violation, and correct it in accordance with the terms of the Board’s decision.  The certificate holder shall have the burden of notifying the County and proving correction of the violation.  The County may inspect the incinerator or processor, or the records or the certificate holder, operator or owner to verify correction.  Additional hearings may be conducted by the County if needed.  The County may restore the certificate if the violation is found to be corrected.

17.176.110 Inspections.

Inspections may be conducted by County staff pursuant to the Act.  The certificate holder, owner and operator of an incinerator or processor shall cooperate with such County staff and assist them in conducting such inspections.  The provision of notice of such inspections, the date, time and location of such inspections, and the frequency of such inspections shall be within the sole discretion of the County, subject to the requirements of the Act.  Failure to cooperate with such inspections shall constitute cause for revocation or suspension.

17.176.120 Annual Fees.

The owner or operator of any proposed incinerator or processor for which a certificate of designation is required under the Act shall provide to the County the annual estimated operating cost of that incinerator or processor as well as the annual estimated gross revenue to be received for the incineration or processing of hazardous wastes as part of the initial application for a certificate of designation.  After a certificate has been issued, the owner or operator shall provide to the County not less than sixty (60) days prior to each anniversary date of the issuance of the certificate any new or revised estimates of the annual operating cost and the annual gross revenue expected to be received for the incineration or processing of hazardous wastes by the hazardous waste incinerator or processor.

For the purposes of these regulations, the following definitions shall apply:

1.   Annual estimated operating cost shall be defined as the good faith estimate provided by the owner or operator of an incinerator or processor for which a certificate of designation is required pursuant to the Act, of all costs, expenses, debts or obligations expended or incurred, or to be expended or incurred, including the amortized or depreciated cost of all capital expenditures based upon the planned or anticipated useful life of such capital expenditures, by said owner or operator, or their agents, in pursuit of the construction, operation, maintenance, or demolition of the incinerator or processor.  If the operator is a person or entity other than the owner then the fee or other remuneration paid or to be paid to the operator for its services shall be included as an operating cost.  Such good faith estimate shall include an estimate of those expenditures anticipated to be incurred in the current calendar year as well as those anticipated to be incurred in each calendar year thereafter for a minimum of three years.  The expenses included in such good faith estimate shall be limited to those expenses directly incurred for and uniquely a part of the incinerator or processor project. 

2.   Annual estimated gross revenue shall be defined as the good faith estimate provided by the owner or operator of an incinerator or processor for which a certificate of designation is required pursuant to the Act, of the total amount of money or other valuable consideration provided to or received by the entity actually charged with or contracted for the construction, operation, maintenance, or demolition of said incinerator or processor, including all amounts paid to reimburse such entity for all costs, expenses, debts, or obligations incurred by such entity in the construction, operation, maintenance, or demolition of such incinerator or processor.  Such good faith estimate shall include an estimate of those revenues anticipated to be paid in the current calendar year as well as those anticipated to be paid in each calendar year thereafter for a minimum of three years.  The revenues included in such good faith estimate shall be limited to those revenues received, which are directly related to and uniquely a part of the incinerator or processor project. 

The County shall provide to the owner or operator a statement of the annual fee that must be paid to the County as a condition of the issuance of a certificate of designation.  In addition, the County shall provide as the basis for such fee, an estimate of all direct costs necessitated by the construction, operation, maintenance, or demolition of the proposed incinerator or processor.  The County shall provide the initial year’s annual fee and the estimated cost basis of that fee to the owner or operator prior to the issuance of the certificate of designation.  After the issuance of a certificate of designation, the County shall provide to the certificate holder each subsequent year’s annual fee within 30 days prior to the anniversary date of the issuance of a certificate, and annual updates or amendments to the estimated direct costs. 

If the owner or operator wishes to dispute the annual fee or the basis of that fee, it shall notify the County of such in writing.  In such an event, a meeting shall be arranged between the owner or operator and the County to allow the matter to be discussed and/or negotiated.  The County will make its final decision with regard to the fee based upon those discussions. 

The owner or operator of an incinerator or processor shall pay to the County the annual fee within ninety (90) days after the issuance of the certificate of designation, and within ninety (90) days of each anniversary date of that certificate.  Upon a showing of good faith effort, the County may grant additional time within which the owner or operator will be required to make any payments due pursuant to these regulations. 

The failure to pay the annual fee pursuant to the Act and these regulations, or the failure to cooperate with the County in calculating the annual fee in accordance to the procedures provided herein shall be cause for denial to issue a certificate, or revocation or suspension of an existing certificate. 

The County shall deposit annual fees received into a hazardous waste incinerator or processor fund as required by §25-15-515(3), C.R.S.