6 CCR 1007-3-8.47 - Basis and Purpose

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

Conformance with the vacatur regarding secondary materials reclaimed by the mineral processing industry.

Section 261.2(c)(3) of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) is being amended at this time to conform with the federal appeals court ruling in Association of Battery Recyclers, Inc. et al. v. U.S. EPA et al., 208 F. 3d 1047 (D.C. Cir. 2000, Docket Number: 98-1368) regarding several consolidated challenges to the Phase IV land disposal restrictions (LDR) rule promulgated by the Environmental Protection Agency (EPA) on May 26,1998 (63 FR 28556-28753). The challenges to the LDR Phase IV rule were filed by the National Mining Association, the American Iron and Steel Institute, the Chemical Manufacturers Association, and other industry groups.

In the Phase IV rule, EPA revised the reclamation provision in 40 CFR § 261.2(c)(3) by adding the limiting statement "(except as provided under 40 CFR 261.4(a)(17))." State analogs to the federal rule were adopted by the Colorado Hazardous Waste Commission (Commission) on September 21, 1999.

In the April 21, 2000 ruling, the court found that EPA had overstepped its authority when it regulated in-process reclaimed mineral processing secondary materials. As a result, the provision "(except as provided under 40 CFR 261.4(a)(17))" in 40 CFR § 261.2(c)(3) was set aside. A copy of the decision can be found at http://www.ll.Georgetown.edu/Fed-Ct/Circuit/dc/opinions/98-1386a.pdf.

The court's mandated deletion of the above referenced provision in 40 CFR § 261.2(c)(3) relates solely to characteristic sludges and by-products as well as certain listed commercial chemical products. The court did not strike any other provision of the LDR Phase IV regulations. As such, the outcome of the April 2000 decision is that (1) characteristic sludges and by-products are now regulated by the pre-LDR Phase IV regulatory approach of 40 CFR § 261.2(c)(3) (i.e., not regulated as "solid waste" if reclaimed) and (2) spent materials continue to be subject of the LDR Phase IV regulations, which require such materials to be subject to RCRA Subtitle C requirements unless the conditional exclusion of 40 CFR § 261.4(a)(17) is satisfied.

At this time, the Commission is amending § 261.2(c)(3) of the state hazardous waste regulations to be consistent with the court's decision in Association of Battery Recyclers, Inc. v. US EPA, 208 F. 3d 1047 (D.C. Cir. 2000). This amendment to the regulations also provides consistency with § 25-15-302(4)(b) of the Colorado Revised Statutes (C.R.S.), which mandates that Colorado's mining and mineral processing regulations can not be more stringent than the federal program.

Statement of Basis and Purpose - Rulemaking Hearing of November 20, 2001

Notes

6 CCR 1007-3-8.47
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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