6 CCR 1007-3-8.85 - Basis and Purpose

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


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

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