These amendments to 6 CCR 1007-3, Part 261 are made
pursuant to the authority granted to the Solid and Hazardous Waste Commission
in §
25-15-302(2),
C.R.S.
Legitimate Recycling
Amendments
These amendments to §
§ 261.1 and 261.2 codify
the criteria to be used in determining when recycling of materials is
legitimate, and provide state analogs to the applicable federal provisions of
40 CFR §
260.43 that were promulgated by the
Environmental Protection Agency (EPA) as part of the Revisions to the
Definition of Solid Waste (DSW) final rule published in the Federal Register on
October 30, 2008 (73 FR 64668-64788).
EPA is currently reviewing a petition filed with the
Administrator under RCRA section 7004(a) requesting that the Agency reconsider
and repeal the DSW rule, and is soliciting comments and information to assist
the agency in evaluating the petition. The Hazardous Materials and Waste
Management Division (the "Division') may propose additional revisions to the
Regulations as it completes its review of the October 2008 DSW rule, and any
further amendments promulgated by the EPA as a result of its review of the
petition to repeal the DSW rule.
The amendments being adopted at this time include:
1) modifying the definition of "reclaimed" in
§ 261.1(d)(4); and
2)
codifying the criteria to be used in determining when recycling of materials is
legitimate into § 261.2(f).
Under the RCRA Subtitle C definition of solid waste,
certain hazardous materials, if recycled, are not solid wastes, and therefore,
are not subject to RCRA's "cradle to grave" management system. Because there
are significant economic incentives to manage hazardous materials outside the
RCRA regulatory system, there is a potential for some handlers to claim that
they are recycling, when, in fact, they are conducting waste treatment, storage
and /or disposal in the guise of recycling.
These amendments establish hazardous waste recycling
legitimacy criteria as specific regulatory provisions for distinguishing
legitimate recycling from "sham" recycling practices, and activities undertaken
by an entity to avoid the requirements of managing a hazardous material as a
hazardous waste. The legitimacy criteria are intended primarily to clarify in a
regulatory context the concept of "legitimate recycling," which has been and is
a key component of RCRA's regulatory program for recycling, but which to date
has been implemented without regulatory criteria. These amendments include
specific regulatory provisions for determining when hazardous materials are
recycled legitimately.
A legitimacy determination involves evaluating
case-specific information to determine whether or not a material being recycled
is in effect being used as a commodity, rather than as a waste. The legitimacy
determination would be a case-specific judgment as to whether a particular
recycling practice is consistent with the criteria in § 261.2 (f) of the
Regulations.
The four general criteria of § 261.2(f) for use in
determining whether recycling of hazardous materials is legitimate are:
1) The material provides a useful
contribution to the recycling process or to a product or intermediate of the
recycling process, and the recycling process produces a valuable product or
intermediate;
2) The recycling
process yields a valuable product or intermediate that is:
a. Sold to a third party; or
b. Used by the recycler or the generator as
an effective substitute for a commercial product or as a useful ingredient or
intermediate which is fed directly into a manufacturing process;
3) The material to be recycled is
managed as a valuable commodity; and
4) The product of the recycling process:
a. Does not contain significant
concentrations of any hazardous waste constituents that are not found in
analogous products;
b. Does not
contain significantly elevated levels of any hazardous constituents that are
found in analogous products; and
c.
Does not exhibit a hazardous waste characteristic that analogous products do
not exhibit.
The legitimacy criteria of § 261.2(f) are intended to
apply to a wide range of recycling scenarios across a wide array of industries.
Although the Division expects that most, if not all, legitimate recycling
practices will conform to each of the four criteria, the application of the
criteria will require some subjective evaluation and balancing. Depending on
the case-specific facts and circumstances, certain criteria may weigh more
heavily than others in making legitimacy determinations. These determinations
will require specific evaluation by the Division on what is considered
"significant concentrations" of any hazardous constituents in accordance with
§ 261.2(f)(2)(iv)(A) & (B).
If the Department determines that a process is not
legitimate recycling, the activity would be considered waste treatment or
disposal and would thus be subject to regulation under the RCRA Subtitle C, if
hazardous. These proposed criteria are intended to apply to all recycling of
hazardous materials.
If an owner/operator claims they are conducting legitimate
recycling but the Division determines that the process is sham recycling, the
recycler and the generator(s) of the recycled material may be subject to
enforcement action.
This Basis and Purpose incorporates by reference the
applicable portions of the preamble language for the Environmental Protection
Agency regulations published in the Federal Register at 73 FR 64668-64788,
October 30, 2008.
Statement of Basis and Purpose - Rulemaking Hearing
of February 16, 2010
Notes
6 CCR 1007-3-8.72
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
