These amendments to 6 CCR 1007-3, Parts 260 and 261 are
made pursuant to the authority granted to the Solid and Hazardous Waste
Commission in §
25-15-302(2),
C.R.S.
Definition of Solid Waste Amendments
On January 13, 2015, the Environmental Protection Agency
published a final rule in the Federal Register {80 FR 1694-1814} that revised
several recycling-related provisions associated with the definition of solid
waste (DSW) used to determine hazardous waste regulation under Subtitle C of
the Resource Conservation and Recovery Act (RCRA). The 2015 DSW rule revised
the previous 2008 DSW rule to provide additional oversight and minimize
potential risk of releases to surrounding communities. The rule establishes a
clear, uniform legitimate recycling standard for all hazardous secondary
materials recycling to improve compliance and help ensure that the hazardous
secondary materials are in fact legitimately recycled, rather than illegally
disposed of. Establishing standards in the regulations for legitimate recycling
makes it substantially harder for facilities who are illegally disposing under
the guise of recycling to continue to operate in the marketplace. The intent of
these revisions is to ensure that the hazardous secondary materials recycling
regulations, as implemented, encourage reclamation in a way that does not
result in the increased risk to human health and the environment from discarded
hazardous secondary material.
Today's amendments to Parts 260 and 261 of the Colorado
Hazardous Waste Regulations (6 CCR 1007-3) adopt states analogs to the federal
provisions of the January 2015 DSW rule that are considered to be more
stringent than the 2008 DSW federal requirements, including:
1) the prohibition of sham recycling and the
definition of legitimate recycling (including the definition of
"contained");
2) accumulation date
tracking requirements for speculative accumulation provisions; and
3) changes to the standards and criteria for
the solid waste variance and non-waste determinations.
The specific amendments being adopted at this time include
the following:
1)
Addition
of definition of "Contained" in § 260.10 - As defined in
§ 260.10, "
Contained" means held in a unit (including a
land-based unit as defined in this subpart) that meets the following criteria:
(i) The unit is in good condition, with no
leaks or other continuing or intermittent unpermitted releases of the hazardous
secondary materials to the environment, and is designed, as appropriate for the
hazardous secondary materials, to prevent releases of hazardous secondary
materials to the environment. Unpermitted releases are releases that are not
covered by a permit (such as a permit to discharge to water or air) and may
include, but are not limited to, releases through surface transport by
precipitation runoff, releases to soil and groundwater, wind-blown dust,
fugitive air emissions, and catastrophic unit failures;
(ii) The unit is properly labeled or
otherwise has a system (such as a log) to immediately identify the hazardous
secondary materials in the unit; and
(iii) The unit holds hazardous secondary
materials that are compatible with other hazardous secondary materials placed
in the unit and is compatible with the materials used to construct the unit and
addresses any potential risks of fires or explosions.
(iv) Hazardous secondary materials in units
that meet the applicable requirements of Parts 264 or 265 are presumptively
contained.
2)
Addition of definition of "Hazardous secondary material" in §
260.10 - As defined in § 260.10, "Hazardous secondary
material" means a secondary material (e.g., spent material,
by-product, or sludge) that, when discarded, would be identified as hazardous
waste under Part 261 of these regulations.
3)
Amendment of § 260.31
Standards and criteria for variances from classification as a solid
waste
- Section 260.31(c) provides the specific standards that a
partially-reclaimed material must meet in order to be eligible for a variance
from classification from solid waste. The criteria for the partial reclamation
variance in § 260.31(c) clarifies when the variance applies and requires,
among other things, that such reclamation meet the § 260.43 legitimacy
criteria.
4)
Amendment
of § 260.33 Procedures for variances from classification as a solid waste,
for variances to be classified as a boiler, or for non-waste
determinations. - Section 260.33(c) requires facilities to send a
notice to the Director and potentially re-apply for a variance in the event of
a change in circumstances that affects how a hazardous secondary material meets
the criteria upon which a solid waste variance or non-waste determination has
been based. Section 260.33(d) establishes a fixed term limit of ten years for
variance and non-waste determinations, unless the petitioner re-applies to the
Department to have variance or non-waste determination renewed. Section
260.33(e) requires facilities to re-notify every two years under § 260.42
with updated information.
5)
Amendment of § 260.34 Standards and criteria for non-waste
determinations. - The existing Section 260.34 (Standards and
Criteria for Non-waste Confirmations) is being deleted in its entirety and
replaced with a new Section 260.34 (Standards and criteria for non-waste
determinations) to match the federal language. The criteria for non-waste
determinations in § 260.34(b)(4) and § 260.34(c)(5) require that
petitioners for a non-waste determination explain or demonstrate why their
hazardous secondary materials cannot meet, or should not have to meet, the
conditions for a solid waste exclusion under § 261.2 or §
261.4.
6)
Addition of
§ 260.42 Notification requirement for hazardous secondary
materials. - Section 260.42 specifies the requirements that a
facility managing hazardous secondary materials under § 260.30 must comply
with. Facilities receiving variances or non-waste determinations must send a
notification of this activity prior to operating under this regulatory
provision and by March 1 of each even-numbered year thereafter to the
Department. Additionally, these facilities must notify within 30 days of
stopping management of hazardous secondary materials under the variance or
non-waste determination.
7)
Addition of § 260.43 Legitimate recycling of hazardous
secondary materials. - The provisions of § 260.43 are
designed to distinguish between real recycling activities(i.e., legitimate
recycling) and "sham" recycling, and specifies the four mandatory factors that
must be met for recycling to be legitimate. The four legitimacy factors are:
1) the hazardous secondary material must
provide a useful contribution to the recycling process or product;
2) the recycling process must produce a
valuable product or intermediate;
3) the hazardous secondary material must be
managed as a valuable commodity; and
4) the recycled product must be comparable to
a legitimate product or intermediate. Note: As part of this
amendment, the existing legitimate recycling criteria currently found at §
261.2(f) are being deleted.
8)
Amendment of §
261.1(d)(8) - Pursuant to the speculative accumulation
requirements at § 261.1(d)(8), all persons subject to § 261.1(d)(8)
must place materials subject to those requirements in a storage unit with a
label indicating the first date that the material began to be accumulated. If
placing a label on the storage unit is not practicable, the accumulation period
must be documented through an inventory log or other appropriate
method.
9)
Amendment of
§ 261.2 - Section 261.2 is being amended to add materials
that are
"sham recycled" as the fourth type of abandoned materials
that are solid waste under § 261.2(b), and adding a prohibition on sham
recycling at § 261.2(g). A hazardous secondary material found to be sham
recycled is considered discarded and a solid waste. Sham recycling is recycling
that is not legitimate recycling as defined in § 260.43 of the
Regulations.
This Basis and Purpose incorporates by reference the
applicable portions of the preamble language for the EPA regulations as
published in the Federal Register at 80 FR 1694-1814, January 13, 2015.
Statement of Basis and Purpose Rulemaking Hearing of
February 16, 2016
Notes
6 CCR 1007-3-8.85
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
