6 CCR 1007-3-8.43 - Basis and Purpose

These amendments to 6 CCR 1007-3, Parts 260, 261, 262 and 268 are made pursuant to the authority granted to the Hazardous Waste Commission in § 25-15-302(2), C.R.S.

LDR Phase IV - Mineral Processing Secondary Materials Exclusion

These amendments provide for a conditional exclusion from the definition of solid wastes for mineral processing secondary materials. This rule amends the current regulations at § 261.2(c)(3) defining which "secondary materials" (sludges, by-products and spent materials) being generated by and reclaimed by mineral processing or beneficiation facilities are solid waste. These amendments create a conditional exclusion at § 261.4(a)(17) of the regulations for mineral processing secondary materials. The conditional exclusion requires that:

(1) The mineral processing secondary materials must be legitimately recycled to recover metal, acid, cyanide, water, or other values;
(2) The mineral processing secondary materials cannot be accumulated speculatively;
(3) The mineral processing secondary materials may not be stored on the land before they are reclaimed; and
(4) Facilities utilizing this conditional exclusion must submit a one-time notification of their recycling activities to the Department describing: the materials being recycled and the processes into which they are recycled; where storage units are located and their design. Facilities must update the notification if their recycling activities change.

These amendments are less stringent than existing state standards, and Colorado is not required to adopt these provisions. The intended effect of this exclusion is to encourage safe recycling of mineral processing secondary materials by reducing regulatory obstacles to recycling, while ensuring that hazardous wastes are properly treated and disposed.

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations that were published in the Federal Register at 63 FR 28556-28753, May 26, 1998, and as amended at 64 FR 25408-25417, May 11, 1999.

LDR Phase IV - Bevill Exclusion Revision

These amendments to § 261.4(b)(7) of the regulations allow secondary materials from mineral processing to be co-processed with normal raw materials in beneficiation operations which generate Bevill exempt wastes, without changing the exempt status of the resulting Bevill waste, provided that legitimate recovery of the mineral processing secondary material is occurring, and provided that primary ores and minerals account for at least 50 percent of the feedstock.

These amendments are less stringent than existing state standards, and Colorado is not required to adopt these provisions. 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 that were published in the Federal Register at 63 FR 28556-28753, May 26, 1998, and as amended at 64 FR 25408-25417, May 11, 1999.

LDR Phase IV - Exclusion of Recycled Wood Preserving Wastewaters

These amendments at § 261.4(a)(10) of the regulations provide an exclusion from the definition of solid waste for certain materials generated and recycled by the wood preserving industry. Specifically, these amendments exclude certain wood preserving wastewaters and spent wood preserving solutions from classification as solid waste under RCRA. Any wood preserving plant claiming the exclusion for these wastes would need to manage them according to the following criteria:

1) the materials must be recycled and reused on-site in the production process for their original intended purpose;
2) the materials must be managed to prevent release;
3) the plant must assure that the units managing these materials can be visually or otherwise determined to prevent releases; and
4) drip pads managing these materials must comply with Subpart W drip pad standards regardless of whether the plant has been classified as a conditionally exempt small quantity generator (CESQG) as defined in § 261.5 of the regulations.

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations that were published in the Federal Register at 63 FR 28556-28753, May 26, 1998.

Petroleum Refining Process Wastes

These amendments add four petroleum refining process wastes (K169-K172) to the list of RCRA hazardous wastes from specific sources in § 261.32, and establish land disposal restrictions (LDR) treatment standards for these wastes. These amendments also expand the conditional exemptions from the definition of solid waste to include three types of petroleum residues:

1) oil-bearing residues (secondary materials) from petroleum refining operations,
2) recovered oil from associated organic chemical manufacturing facilities, and
3) spent liquid treating caustic solution used as feedstock in cresylic or naphthenic acid production.

The amendments being adopted at this time include:

1) Revising the table at § 261.32 to add listings for the following four petroleum refining process wastes:

K169 - Crude oil storage tank sediment from petroleum refining operations;

K170 - Clarified slurry oil tank sediment and/or in-line filters/separation solids from petroleum refining operations;

K171 - Spent hydrotreating catalysts, and

K172 - Spent hydrorefining catalysts.

2) Establishing LDR treatment standards for the newly listed wastes in § 268.35 and § 268.40;
3) Adding § 261.3(c)(2)(ii)(E) to exclude inert support media separated from spent hydrotreating and hydrorefining catalyst from the definition of hazardous waste;
4) Revising the hazardous waste listing for F037 in § 261.31(a) to include residues generated from processing or recycling excluded oil-bearing secondary materials that met a listing description when originally generated and are disposed, or intended for disposal;
5) Adding the wastes' hazardous constituents to Appendix VII of Part 261;
6) Expanding the conditional exemption from the definition of solid waste for recovered oil at § 261.4(a)(13); and
7) Adding exemptions at the newly promulgated § 261.4(a)(18) and § 261.4(a)(19) for recovered oil from associated organic chemical manufacturing facilities and spent liquid caustic solutions used as feedstocks to produce cresylic or naphthenic acid.

The revisions to § 261.32, Part 261 Appendix VII, § 268.35 § 268.40 are HSWA provisions and are more stringent than the current state provisions. In order to maintain its authorization to operate its state program in lieu of the U.S. Environmental Protection Agency operating a federal program, Colorado must adopt state requirements equivalent to and consistent with the overlying federal requirements. These amendments provide state equivalency with the regulatory requirements of the Environmental Protection Agency.

The Hazardous Waste Commission is not adopting a state analog to the revisions made to 40 CFR § 266.100(b)(3). Section 266.100 is part of 40 CFR Part 266 , Subpart H regulations concerning "Hazardous Waste Burned in Boilers and Industrial Furnaces". Colorado has not adopted a state analog to 40 CFR Part 266, Subpart H at this time.

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations that were published in the Federal Register at 63 FR 42110-42189, August 6, 1998.

Petroleum Refining Process Wastes - Leachate Exemption

These amendments at § 261.4(b)(15) of the regulations provide a temporary exemption from the definition of hazardous waste for leachate and gas condensate derived from landfill disposal of petroleum refining process wastes (K169-K172). Prior to being listed as hazardous wastes, these petroleum refining process wastes were typically disposed in industrial and municipal solid waste landfills.

This conditional exemption does not apply if the leachate and gas condensate exhibit a hazardous waste characteristic (i.e., ignitability, corrosivity, reactivity, and/or toxicity) or are derived from any other listed hazardous waste in addition to the K169-K172 listings. Additional conditions for the deferral include:

1) discharge of the leachate and gas condensate must be regulated under the Clean Water Act (CWA), and
2) the generated wastes may not be placed in surface impoundments after February 13, 2001, except under emergency conditions.

The Environmental Protection Agency (EPA) is currently examining the issue of integrating RCRA and CWA regulations for the purpose of leachate management during this deferral period. Once EPA has taken final action on this issue, the Hazardous Waste Commission will notice and conduct a rulemaking hearing to consider any necessary amendments to this rule.

These amendments are less stringent than existing state standards, and Colorado is not required to adopt these provisions. 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 that were published in the Federal Register at 64 FR 6806-6814, February 11, 1999.

Corrections to the LDR Phase IV Rule

These amendments correct technical errors that were identified after Colorado adopted state analogs to the federal Land Disposal Restrictions (LDR) Phase IV rule.

The amendments being adopted at this time include:

1) Revising the table at § 261.32 to remove the five K-code wastes (K064, K065, K066, K090 and K091) that were vacated on April 9, 1999 in Great Lakes Chemical Co. v EPA (No. 98-1312 (D.C.Cir.));
2) Revising § 262.34(a)(4) to change an internal citation reference from § 268.7(a)(4) to § 268.7(a)(5) to reflect some other regulatory changes to LDR paperwork requirements that had been adopted earlier; and
3) Removing the erroneous reference to "mg/l TCLP" for the nonwastewater arsenic standard for the K088 entry in the § 268.40 table "Treatment Standards for Hazardous Waste".

This Basis and Purpose incorporates by reference the preamble language for the Environmental Protection Agency regulations that were published in the Federal Register at 64 FR 56469-56472, October 20, 1999.

Correction of Typographical Errors and Omissions

In addition, these amendments also correct typographical errors and inadvertent omissions that occur in the regulations.

Statement of Basis and Purpose - Rulemaking Hearing of June 20, 2000

Notes

6 CCR 1007-3-8.43
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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