DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Solid and Hazardous Waste Commission/Hazardous Materials and Waste Management Division

6 CCR 1007-3

hazardous waste

Amendments adopted by the Solid and Hazardous Waste Commission on August 18, 2009:

Amendment of Section 261.33

1) Revise Section 261.33 of Part 261 by adding the following clarifying Note after paragraph (d) to read as follows:
§ 261.33  Discarded Commercial Chemical Products, Off-Specification Species, Container Residues, and Spill Residues Thereof.
********
(d)  Any residue or contaminated soil, water or other debris resulting from the cleanup of a spill into or on any land or water of any commercial chemical product or manufacturing chemical intermediate having the generic name listed in paragraph (a) through (d) of this section, or any residue or contaminated soil, water or other debris resulting from the cleanup of a spill, into or on any land or water, of any off-specification chemical product and manufacturing intermediate which, if it met specifications, would have the generic name listed in paragraphs (e) or (f) of this section.
Note:   Colorado’s regulations are more stringent than the federal regulations of 40 CFR § 261.33(d) with regard to application of P and U-listed waste codes to unused commercial chemical products.  Pursuant to the comment at 40 CFR 261.33(d), the listed chemical must be the “sole active ingredient” to meet the listing description.  In Colorado, formulations may have more than one active ingredient and still meet the listing description.  

********
2) Revise Section 260.10 of Part 260 by adding in alphabetical order the following definition of “active ingredient” to read as follows:
********
“Active ingredient” means a component or mixture that performs the function of the product, even if it is present in very low concentration in the product.
********

3) Add Section 8.71 {Statement of Basis and Purpose for the Rulemaking Hearing of August 18, 2009} to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of August 18, 2009
8.71		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.
Amendments of § 260.10 and § 261.33

The purpose of the amendment to § 261.33 is to clarify the scope of the P and U waste code listings to unused commercial chemical products, and to help remove the confusion regarding Colorado’s more stringent regulation of formulations containing more than one active ingredient.

Discarded commercial chemical products are considered hazardous waste in Colorado if they are listed in 6 CCR 1007-3, section 261.33(e) and (f) (the “P” and “U” lists) or if they exhibit one or more of the hazardous waste characteristics of Part 261, Subpart C.

A comment listed in the federal regulations at 40 CFR Section 261.33(d) indicates that the listing applies to commercial and technical grades of the product, and to formulations in which the chemical is the “sole active ingredient”.   “Sole active ingredient” means the active ingredient is the only chemically active component for the function of the product.  If the discarded product is a formulation with more than one active ingredient, it would not be within the scope of the federal listing.  

The Department has never believed that EPA’s approach made sense – if P and U chemical wastes are each dangerous and toxic, then a mixture of those chemicals as active ingredients in a waste would be equally or even more dangerous and toxic.  This is the reason the Department did not add the note to this section that appears in the federal regulations.  Unfortunately, many regulated entities in Colorado do not realize that this note is missing from the Colorado regulations.  

These amendments clarify that Colorado is more stringent than the federal requirement, and specifies that formulations may have more than one active ingredient and still meet the listing description. An active ingredient is defined as a component or mixture that performs the function of the product, even if it is present in very low concentration in the product. This definition for active ingredient is also being added into section 260.10 of the regulations at this time. These amendments to § 260.10 and § 261.33 will hopefully clarify Colorado’s regulations mitigate some of the misunderstanding in the regulated community regarding waste mixtures with more than one active ingredient.

Information on whether a particular chemical is an active ingredient or performs the function of the
product may be documented on the product label, instructions for use, Material Safety Data Sheet
(MSDS) or other manufacturer documentation. An Interpretive Memo {P and U Listed Hazardous Wastes: Discarded Commercial Chemical Products}, including a flowchart describing the process to follow when determining if your waste is a P or U listed waste is available at the Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division website at http://www.cdphe.state.co.us/hm/pandulisted.pdf.