6 CCR 1007-3-8.22 - Basis and Purpose

These amendments to 6 CCR 1007-3, Parts 260, 261, 264, 265, 273, 100 and 6 are made pursuant to the authority granted to the Hazardous Waste Commission in section 25-15-302(2), C.R.S.

Addition of Aerosol Cans to the Universal Waste Regulations

At the October 17, 1995 Hazardous Waste Commission Hearing, the Commission adopted regulations governing the collection and management of certain widely generated wastes, known as "universal wastes". The Part 273 universal waste regulations currently address the management of waste batteries (i.e., nickel cadmium), certain waste pesticides, and waste mercury-containing thermostats. The Part 273 universal waste regulations provide a conditional exemption from full Subtitle C regulation for certain universal wastes, while still ensuring that management of these wastes is conducted in a manner that is protective of human health and the environment. The Part 273 regulations reduce the management requirements for generators, consolidation points (small and large quantity handlers of universal waste), and transporters. By relaxing the standards, collection of universal waste is simplified, thereby encouraging the establishment of and participation in environmentally-sound collection and recycling programs by generators and handlers of universal wastes. Increasing the availability of these collection and recycling programs will subsequently strengthen environmental protection by encouraging that these universal wastes are treated or recycled in facilities subject to the full hazardous waste regulations rather than disposed of, as many currently are, in municipal solid waste landfills and incinerators.

The Part 273 universal waste regulations also contain provisions for adding additional waste types to the universal waste system in the future. Subpart G of Part 273 describe the criteria and procedures involved in petitioning to have additional hazardous wastes added to the Part 273 universal waste regulations. This petition process enhances state flexibility by allowing states to add waste(s) to its universal waste program without requiring the waste(s) to be added at the federal level. In order for a petition to be successful, it must be demonstrated that regulation under the universal waste system is appropriate, and that the Part 273 requirements will improve waste management practices for the waste(s).

After receiving requests from industry to add aerosol cans to the universal waste regulations, the Colorado Department of Public Health and Environment has proposed that management standards for aerosol cans be added at this time under the universal waste regulations of Part 273.

Evaluation of the factors outlined in Subpart G of Part 273 for adding new universal wastes supports management of waste aerosol cans as a universal waste.

a) The contents of aerosol cans frequently contain a listed hazardous waste, or exhibit one or more characteristics of hazardous waste. Typical wastes generated in aerosol cans include various solvents, ignitable wastes, and other listed and/or characteristic wastes. As recyclable scrap metal, empty aerosol containers are exempted from RCRA regulation (§ 261.6(a)(3)(ii). However, aerosol containers that are not empty in accordance with § 261.7 and contain a listed or characteristic substance would be subject to regulation as a hazardous waste when discarded.
b) Waste aerosol cans are not exclusively generated by any specific industry or group of industry. Waste aerosol cans are commonly generated by a wide variety of types of generators, including households, retail and commercial businesses, office complexes, conditionally exempt small quantity generators, small businesses, government organizations, as well as major industrial operations. Waste aerosol cans generated by regulated hazardous waste generators are fully regulated as hazardous waste; whereas waste aerosol cans generated by exempt households are not subject to RCRA Subtitle C controls.
c) Waste aerosol cans are commonly generated by a large number of generators, and are frequently generated in relatively small quantities by each generator. The use of aerosol cans is pervasive throughout all levels of industry.
d) Requirements for the collection of waste aerosol cans have been developed to ensure close stewardship of the waste and prevent releases of any universal waste or component of universal waste to the environment. Specific universal waste aerosol can management conditions that have been added include:
1) requiring handlers of universal waste aerosol cans to immediately contain any universal waste aerosol can that shows evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions in a separate individual container that is closed, sound, and compatible with the contents of the universal waste aerosol can; and
2) requiring that any universal waste aerosol can, and/or any container in which the universal waste aerosol cans are contained or accumulated, to be properly labeled or marked to identify the types of universal waste being managed.
e) Waste aerosol cans pose a relatively low level of risk during accumulation and transport in comparison to other hazardous wastes, and specific waste management regulations for waste aerosol cans have been added at § § 273.13(d) and 273.33(d) to ensure that management of these wastes is conducted in a manner that is protective of human health and the environment. Specific universal waste aerosol can management conditions that have been added include:
1) requiring handlers to ensure that incompatible wastes are separated and managed appropriately;
2) requiring a written procedure to be developed if the handler will be puncturing universal waste aerosol cans to ensure proper and safe operation of the can-puncturing unit; and
3) requiring that EPA Identification Codes be placed on the accumulation container at the time the universal waste aerosol can is emptied to ensure full and accurate waste characterization.
f) The Colorado Department of Public Health and Environment believes that simplifying and streamlining the requirements associated with collection and handling of waste aerosol cans will divert these waste aerosol cans from their disposal in municipal waste systems and channel them into proper recycling and management activities, subsequently encouraging the development of more efficient and effective collection systems. Such collection systems will, in turn, facilitate collection of not only the regulated portion of the waste stream, but also the unregulated portion of the waste stream.
g) The Colorado Department of Public Health and Environment believes simplifying the standards for management of aerosol cans by regulating them as universal waste under the Part 273 universal waste regulations will improve implementation of and compliance with the hazardous waste regulatory program while providing adequate protection of human health and the environment.

The requirements proposed today would offer a conditional exemption from the current Subtitle C hazardous waste requirements for universal waste aerosol cans. Compliance with the reduced set of Part 273 requirements would be an option that waste handlers may voluntarily choose. Operating under the Part 273 regulations would not be compulsory. If universal waste handlers wish, they may instead continue to manage their hazardous waste aerosol cans under the full RCRA Subtitle C regulations. If they do elect to follow the reduced Part 273 requirements, they would be subject to a number of conditions designed to provide adequate protection of human health and the environment.

Specific waste management requirements are being added at this time for small quantity handlers of universal waste aerosol cans (§ 273.13(d)) as well as for large quantity handlers of universal waste aerosol cans (§ 273.33(d)). These sections explain the requirements that small and large quantity handlers must follow when handling universal waste aerosol cans. They include requiring that the universal waste be managed in a way that prevents releases to the environment, and setting forth procedures that must be followed when handling universal waste aerosol cans (e.g., sorting the aerosol cans by type and compatibility of contents, and aerosol can-puncturing operation, etc.).

Included in the waste management standards of § § 273.13 and 273.33 are requirements for handlers who chose to puncture waste aerosol cans and remove its contents as part of their universal waste management activities. Handlers of universal waste who puncture aerosol cans to remove the contents of the can, or who generate other solid waste as a result of such activities must determine whether the contents of the aerosol can, residues and/or other solid waste are a listed hazardous waste, or if they exhibit a characteristic of hazardous waste. If the generated waste is a listed hazardous waste, or exhibits a characteristic of hazardous waste, it must be managed in compliance with all applicable requirements of Part 260 through Part 268, and Parts 99 and 100 of the Colorado Hazardous Waste Regulations 6 CCR 1007-3. If the generated waste is not a listed hazardous waste, or does not exhibit a characteristic of hazardous waste, it is not subject to the hazardous waste requirements, nor is it subject to the requirements of Part 273. This waste is, however, required to be handled in compliance with applicable federal, state, or local solid waste regulations (e.g., The puncturing of universal waste aerosol cans may require filing an Air Pollution Emission Notice [APEN], and the use of control devices to capture airborne contamination.).

Labeling and Marking requirements for universal waste aerosol cans are also being added at this time. Under § § 273.14 and 273.34, a universal handler managing waste aerosol cans at his/her facility is required to label each individual aerosol can or container in which the aerosol cans are contained or accumulated, with the words "Universal Waste-Aerosol Can(s)", or "Waste-Aerosol Can(s)". In addition to the labeling requirements of Part 262, § § 273.13(d)(4)(ii) and 273.33(d)(4)(ii) require that the container a handler uses to accumulate, store, or transport the hazardous waste contents removed from punctured universal waste aerosol cans be labeled with all applicable EPA Hazardous Waste Codes.

Subpart A is of Part 273 is also being revised at this lime by reorganizing § 273.2 as a general applicability section covering all the universal wastes, and by consolidating the general applicability provisions for pesticides and mercury thermostats previously found in § § 273.3 and 273.4 respectively into § 273.2. Reorganization in this manner will allow for the future addition of other wastes to the universal waste regulations.

This rule is an example of the Colorado Department of Public Health and Environment's effort to reduce regulatory burdens on affected parties without compromising environmental protection. Relaxing the standards for handlers of universal waste should simplify the collection of these universal wastes and encourage the establishment of collection and recycling programs. Increasing the availability of environmentally-sound collection and recycling programs should subsequently strengthen environmental protection of human health and the environment by encouraging that these universal wastes be treated or recycled in facilities subject to the full hazardous waste regulations rather than disposed of in municipal solid waste landfills and incinerators.

Amendment of § 260.2 Incorporation by Reference

Section 260.2 is being amended at this time by adding paragraph (c) to this section. This amendment fulfills the requirements of § 24-4-103 (12.5) (c) (II), C.R.S. That section requires materials incorporated by reference to state that the materials are available at the state publications depository libraries. This amendment also updates the editions of the referenced materials to 1995.

Deletion of "Hazardous waste disposal site" definition from § 260.10

This amendment deletes the definition of hazardous waste disposal site from § 260.10. Upon review of the regulations it was determined that this definition is not necessary in 6 CCR 1007-3. This amendment provides state equivalency with the regulatory requirements of the Environmental Protection Agency.

Amendment of § § 261.5(f)(3) and 261.5(g)(3)

The language of § 261.5(f)(3) and § 261.5(g)(3) were inadvertently revised to match the federal wording of 40 CFR § § 261.5(f)(3) and 261.5(g)(3) when the universal waste rule was adopted at the October 17, 1995 Hazardous Waste Commission hearing. The state analogs to 40 CFR § § 261.5(f)(3) and 261.5(g)(3) were previously more stringent than the federal language because Colorado's regulations prohibited a conditionally exempt small quantity generator from disposing of acute hazardous waste or hazardous waste onsite. Sections 261.5(f)(3) and 261.5(g)(3) are being amended at this time to re-adopt the more stringent language and prohibit onsite disposal.

Amendment of § 6.04(b)

These amendments to § 6.04(b) are being made in response to the Hazardous Waste Commission's concern that the annual fees are not being paid in a timely manner. After the fiscal year 1994-95 billing an outstanding balance of $16,000.00 is still owed on those accounts. The October 15 due date for fee payment is being changed to November 15 to allow more time for the customers to pay these fees. Additional language is also being added to indicate the current practice of turning over delinquent accounts to State Collections for further action.

Organic Air Emission Standards for Tanks. Surface Impoundments and Containers-Postponement of the Effective Date

Colorado currently operates an authorized hazardous waste management program under the federal Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. sections 6901 to 6992. The state's program is equivalent to and consistent with the federal hazardous waste program established by the U.S. Environmental Protection Agency ("U.S. EPA") pursuant to RCRA. To maintain its authorization to operate its state program in lieu of the U.S. EPA operating a federal program, Colorado must adopt state requirements equivalent to and consistent with the overlying federal requirements. Further, while the state has the authority to be more stringent than the federal program, only where there has been a clear state need to address a specific hazardous waste management issue in Colorado has the Hazardous Waste Commission adopted state program requirements which were more stringent than the overlying federal requirements.

At the April 18, 1995 Hazardous Waste Commission meeting the Commission adopted air standards that apply to owners and operators of permitted hazardous waste treatment, storage and disposal facilities (TSDF) and certain hazardous waste generators accumulating waste on-site in RCRA permit-exempt tanks and containers. The air emission standards adopted by the Commission were intended to be and were equivalent to the federal air emission standards adopted by the U.S. EPA. In adopting the state air emission standards the Commission relied in large part upon the basis expressed by the U.S. EPA in adopting the federal air emission standards. The effective date for both the state and federal air emission standards was to be December 6, 1995.

On November 13, 1995, U.S. EPA postponed the effective date of the federal air emission standards until June 6, 1996. (60 FR 56952) This extension of the federal effective date has created the situation where, if the state effective date is not extended, the state program will inadvertently become more stringent than the federal program. Such a result was certainly not the intent of the Commission in originally promulgating the state emission standards. Further, during this six month extension of the federal effective date, the U.S. EPA will also be considering certain amendments to the federal air emission standards to increase compliance flexibility and, if found to be warranted, to reduce certain regulatory requirements. It is likely that amendments will be made to the federal air emission standards during this process, thereby creating further distinctions between the state and federal programs. In light of U.S. EPA action and the information it will be reviewing, the Commission will also be considering whether the state air emission standards should be amended.

The Commission believes that requiring compliance with the state air emission standards before any overlying federal effective date places an unnecessary burden upon the regulated community in Colorado. The creation of such a situation was not the intent of the Commission in originally promulgating the air emission standards which the U.S. EPA, and the Commission, may amend during the six month extension of the federal effective date is unwarranted.

On November 28, 1995, the Commission held an emergency rulemaking hearing and extended the effective date of the state air emission standards for 90 days or until a final rule-making hearing could be held.

These amendments to 6 CCR 1007-3, § § 264.1080, 265.1080 and 265.1082 extending the effective date for 6 months provide state equivalency with the regulatory requirements of the Environmental Protection Agency.

A final rulemaking hearing was held on January 16, 1996 and the six month extension of state air emission standards, until June 6, 1996, was formally adopted.

Testing and Monitoring Activities

Section 260.11 is being amended at this time by revising the "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods" reference to include the reference to Update IIB. This amendment clarifies the temperature requirement for pH measurements of highly alkaline wastes and adds Method 9040B (pH Electrometric Measurement) and Method 9045C (Soil and Waste pH) to "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW-846. This amendment will provide a better and more complete analytical technology for RCRA in testing in support of hazardous waste identification under the corrosivity characteristic (§ 261.22).

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations published in the Federal Register at 60 FR 17001-17004, April 4, 1995.

Amendment of § 265.1033

Section 265.1033 is being amended at this time by revising paragraph (j)(2) and adding paragraphs (l) through (l)(3). These amendments were part of the Environmental Protection Agency's "Organic Air Emission Standards for Tanks, Surface Impoundments, and Containers" final rule published in the Federal Register on December 6, 1994 (59 FR 62896-62953), but were inadvertently excluded from the air emission control standards adopted by the Hazardous Waste Commission at their April 18, 1995 hearing. These amendments provide state equivalency with the regulatory requirements of the Environmental Protection Agency.

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations published in the Federal Register at 59 FR 62896-62953, December 6, 1994.

Statement of Basis and Purpose - Rule-making Hearing of April 16, 1996

Notes

6 CCR 1007-3-8.22
37 CR 24, December 25, 2014, effective 3/2/2015 38 CR 11, June 10, 2015, effective 6/30/2015 39 CR 05, March 10, 2016, effective 3/30/2016 39 CR 11, June 10, 2016, effective 6/30/2016 40 CR 06, March 25, 2017, effective 4/14/2017 40 CR 11, June 10, 2017, effective 6/30/2017 40 CR 21, November 10, 2017, effective 11/30/2017 41 CR 06, March 25, 2018, effective 4/14/2018 41 CR 11, June 10, 2018, effective 6/30/2018 41 CR 24, December 25, 2018, effective 1/14/2019 42 CR 06, March 25, 2019, effective 4/14/2019 42 CR 06, March 25, 2019, effective 5/30/2019 42 CR 11, June 10, 2019, effective 6/30/2019 43 CR 12, June 25, 2020, effective 7/15/2020 44 CR 06, March 25, 2021, effective 4/14/2021 44 CR 11, June 10, 2021, effective 6/30/2021 44 CR 24, December 25, 2021, effective 1/14/2022 45 CR 11, June 10, 2022, effective 6/30/2022 45 CR 17, September 10, 2022, effective 9/10/2022 45 CR 17, September 10, 2022, effective 9/30/2022 45 CR 23, December 10, 2022, effective 1/30/2023

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