DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

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

6 CCR 1007-3

hazardous waste

Definition of Solid Waste Amendments

(Adopted by the Solid and Hazardous Waste Commission on February 16, 2016)

1) Amend Section 260.10 by adding the definitions of “Contained” and “Hazardous secondary material” in alphabetical order to read as follows: 

§ 260.10 Definitions

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“Contained” means held in a unit (including a land-based unit as defined in this subpart) that meets the following criteria:
(1) 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;

(2) 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

(3) 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.

(4) Hazardous secondary materials in units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively contained.

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“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.  
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2) Amend Section 260.30 by revising the section heading; revising paragraph (a); and adding paragraphs (d) and (e) to read as follows: 

§ 260.30 Non-Waste determinations and variances from classification as a solid waste. 

In accordance with the standards and criteria in § 260.31 and § 260.34 and the procedures in § 260.33, the Department may determine on a case by case basis that the following recycled materials are not solid wastes:
 
(a) Materials that are accumulated speculatively without sufficient amounts being recycled (as defined in § 261.1(d)(8) of these regulations); 

(b) ******* 

(c) *******
 
(d) Hazardous secondary materials that are reclaimed in a continuous industrial process; and

(e) Hazardous secondary materials that are indistinguishable in all relevant aspects from a product or intermediate.

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3) Amend Section 260.31 by revising paragraph (c) to read as follows: 

§ 260.31 Standards and criteria for variances from classification as a solid waste.

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(c) The Department may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed, but must be reclaimed further before recovery is completed, if the partial reclamation has produced a commodity-like material. A determination that a partially-reclaimed material for which the variance is sought is commodity-like will be based on whether the hazardous secondary material is legitimately recycled as specified in § 260.43 of this part and on whether all of the following decision criteria are satisfied:

(1) Whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste;

(2) Whether the partially-reclaimed material has sufficient economic value that it will be purchased for further reclamation;

(3) Whether the partially-reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials which is used in subsequent production steps;

(4) Whether there is a market for the partially-reclaimed material as demonstrated by known customer(s) who are further reclaiming the material (e.g., records of sales and/or contracts and evidence of subsequent use, such as bills of lading); and

(5) Whether the partially-reclaimed material is handled to minimize loss.

4) Amend Section 260.33 by revising the section heading and paragraph (a), and adding paragraphs (c), (d) and (e) to read as follows: 
§ 260.33 Procedures for variances from classification as a solid waste, for variances to be classified as a boiler, or for non-waste determinations.
The Department will use the following procedures in evaluating applications for variances from classification as a solid waste or applications to classify particular enclosed controlled flame combustion devices as boilers: 

(a) The applicant must apply to the Department for the variance or non-waste determination.  The application must address the relevant criteria contained in § 260.31, § 260.32, or § 260.34 of this Part, as applicable.

(b) ******* 

(c) In the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria contained in § 260.31, § 260.32, or § 260.34 upon which a variance or non-waste determination has been based, the applicant must send a description of the change in circumstances to the Department. The Department may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or non-waste determination or may require the facility to re-apply for the variance or non-waste determination.
 
(d) Variances and non-waste determinations shall be effective for a fixed term not to exceed ten years. No later than six months prior to the end of this term, facilities must re-apply for a variance or non-waste determination. If a facility re-applies for a variance or non-waste determination within six months, the facility may continue to operate under an expired variance or non-waste determination until receiving a decision on their re-application from the Department.
 
(e) Facilities receiving a variance or non-waste determination must provide notification as required by § 260.42 of these regulations.

5) Delete the existing Section 260.34 (Standards and Criteria for Non-waste Confirmations) in its entirety and replace with a new Section 260.34 (Standards and criteria for non-waste determinations) to read as follows: 

§ 260.34 Standards and criteria for non-waste determinations.

(a) An applicant may apply to the Department for a formal determination that a hazardous secondary material is not discarded and therefore not a solid waste. The determinations will be based on the criteria contained in paragraphs (b) or (c) of this section, as applicable. If an application is denied, the hazardous secondary material might still be eligible for a solid waste variance or exclusion (for example, one of the solid waste variances under § 260.31). 

(b) The Department may grant a non-waste determination for hazardous secondary material which is reclaimed in a continuous industrial process if the applicant demonstrates that the hazardous secondary material is a part of the production process and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in § 260.43 and on the following criteria:

(1) The extent that the management of the hazardous secondary material is part of the continuous primary production process and is not waste treatment;

(2) Whether the capacity of the production process would use the hazardous secondary material in a reasonable time frame and ensure that the hazardous secondary material will not be abandoned (for example, based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements);

(3) Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process; and

(4) Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under § 261.2 or § 261.4 of these regulations.

(c) The Department may grant a non-waste determination for hazardous secondary material which is indistinguishable in all relevant aspects from a product or intermediate if the applicant demonstrates that the hazardous secondary material is comparable to a product or intermediate and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in § 260.43 and on the following criteria:

(1) Whether market participants treat the hazardous secondary material as a product or intermediate rather than a waste (for example, based on the current positive value of the hazardous secondary material, stability of demand, or any contractual arrangements);

(2) Whether the chemical and physical identity of the hazardous secondary material is comparable to commercial products or intermediates;

(3) Whether the capacity of the market would use the hazardous secondary material in a reasonable time frame and ensure that the hazardous secondary material will not be abandoned (for example, based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements);

(4) Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process; and

(5) Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under § 261.2 or § 261.4 of these regulations.

6) Amend Part 260 by adding Section 260.42 (Notification requirement for hazardous secondary materials) to read as follows: 

§ 260.42  Notification requirement for hazardous secondary materials.

(a) Facilities managing hazardous secondary materials under § 260.30 must send a notification prior to operating under the regulatory provision and by March 1 of each even-numbered year thereafter to the Department using the Colorado Hazardous Waste Notification Form that includes the following information:

(1) The name, address, and EPA ID number (if applicable) of the facility;

(2) The name and telephone number of a contact person;

(3) The NAICS code of the facility;

(4) The regulation under which the hazardous secondary materials will be managed;

(5) When the facility began or expects to begin managing the hazardous secondary materials in accordance with the regulation;

(6) A list of hazardous secondary materials that will be managed according to the regulation (reported as the EPA hazardous waste numbers that would apply if the hazardous secondary materials were managed as hazardous wastes);

(7) For each hazardous secondary material, whether the hazardous secondary material, or any portion thereof, will be managed in a land-based unit;

(8) The quantity of each hazardous secondary material to be managed annually; and

(9) The certification (included in the Colorado Hazardous Waste Notification Form) signed and dated by an authorized representative of the facility.

(b) If a facility managing hazardous secondary materials has submitted a notification, but then subsequently stops managing hazardous secondary materials in accordance with the regulation(s) listed above, the facility must notify the Department within thirty (30) days using the Colorado Hazardous Waste Notification Form. For purposes of this section, a facility has stopped managing hazardous secondary materials if the facility no longer generates, manages and/or reclaims hazardous secondary materials under the regulation(s) above and does not expect to manage any amount of hazardous secondary materials for at least 1 year.

7) Amend Part 260 by adding Section 260.43 (Legitimate recycling of hazardous secondary materials) to read as follows: 

§ 260.43  Legitimate recycling of hazardous secondary materials.

(a) Recycling of hazardous secondary materials for the purpose of the exclusions or exemptions from the hazardous waste regulations must be legitimate. Hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste. In determining if their recycling is legitimate, persons must address all the requirements of this paragraph.

(1) Legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process. The hazardous secondary material provides a useful contribution if it:

(i) Contributes valuable ingredients to a product or intermediate; or

(ii) Replaces a catalyst or carrier in the recycling process; or

(iii) Is the source of a valuable constituent recovered in the recycling process; or

(iv) Is recovered or regenerated by the recycling process; or

(v) Is used as an effective substitute for a commercial product.

(2) The recycling process must produce a valuable product or intermediate. The product or intermediate is valuable if it is:

(i) Sold to a third party; or

(ii) Used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process.

(3) The generator and the recycler must manage the hazardous secondary material as a valuable commodity when it is under their control. Where there is an analogous raw material, the hazardous secondary material must be managed, at a minimum, in a manner consistent with the management of the raw material or in an equally protective manner. Where there is no analogous raw material, the hazardous secondary material must be contained. Hazardous secondary materials that are released to the environment and are not recovered immediately are discarded.

(4) The product of the recycling process must be comparable to a legitimate product or intermediate:

(i) Where there is an analogous product or intermediate, the product of the recycling process is comparable to a legitimate product or intermediate if:

(A) The product of the recycling process does not exhibit a hazardous characteristic (as defined in Part 261 Subpart C) that analogous products do not exhibit, and

(B) The concentrations of any hazardous constituents found in Appendix VIII of Part 261 of these regulations that are in the product or intermediate are at levels that are comparable to or lower than those found in analogous products or at levels that meet widely-recognized commodity standards and specifications, in the case where the commodity standards and specifications include levels that specifically address those hazardous constituents.

(ii) Where there is no analogous product, the product of the recycling process is comparable to a legitimate product or intermediate if:

(A) The product of the recycling process is a commodity that meets widely recognized commodity standards and specifications (e.g., commodity specification grades for common metals), or

(B) The hazardous secondary materials being recycled are returned to the original process or processes from which they were generated to be reused (e.g., closed loop recycling).

(iii) If the product of the recycling process has levels of hazardous constituents that are not comparable to or unable to be compared to a legitimate product or intermediate per paragraph (a)(4)(i) or (ii) of this section, the recycling still may be shown to be legitimate, if it meets the following specified requirements. The person performing the recycling must conduct the necessary assessment and prepare documentation showing why the recycling is, in fact, still legitimate. The recycling can be shown to be legitimate based on lack of exposure from toxics in the product, lack of the bioavailability of the toxics in the product, or other relevant considerations which show that the recycled product does not contain levels of hazardous constituents that pose a significant human health or environmental risk. The documentation must include a certification statement that the recycling is legitimate and must be maintained on-site for three years after the recycling operation has ceased. The person performing the recycling must notify the Department of this activity using the Colorado Hazardous Waste Notification Form.

(b)-(c)  [Reserved]

8) Amend Section 261.1 by revising paragraphs (d)(8) to read as follows: 

§ 261.1 Purpose and scope. 

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(d)  For the purposes of §§ 261.2 and 261.6:

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(8) A material is "accumulated speculatively" if it is accumulated before recycled.  A material is not accumulated speculatively, however, if the person accumulating it can show that the material is potentially recyclable and has a feasible means of being recycled; and that–during the calendar year (commencing on January 1)–the amount of material that is recycled, or transferred to a different site for recycling, equals at least 75% by weight or volume of the amount of that material accumulated at the beginning of the period.  Materials must be placed 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.  In calculating the percentage of turnover, the 75% requirement is to be applied to each material of the same type (e.g., slags from a single smelting process) that is recycled in the same way (i.e., from which the same material is recovered or that is used in the same way).  Materials accumulating in units that would be exempt from regulation under § 261.4(c) are not to be included in making the calculation.  Materials that are already defined as solid wastes also are not to be included in making the calculation.  Materials are no longer in this category once they are removed from accumulation for recycling, however. 

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9) Amend Section 261.2 by revising paragraph (b)(3); adding paragraph (b)(4); revising paragraph (c)(3); and revising table 1 in paragraph (c)(4) to read as follows: 

§ 261.2 Definition of solid waste.

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(b) Materials are solid waste if they are abandoned by being: 

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(3) Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or incinerated; or

(4) Sham recycled, as explained in paragraph (g) of this section. 

(c) Materials are solid wastes if they are recycled    or accumulated, stored, or treated before recycling    as specified in paragraphs (c)(1) through (c)(4) of this section.

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(3) Reclaimed.  Materials noted with a "---" in column 3 of Table 1 are not solid wastes when reclaimed. Materials noted with a "*" in column 3 of Table 1 are solid wastes when reclaimed unless they meet the requirements of § 261.4(a)(17). 

(4) Accumulated speculatively.  Materials noted with a "*" in column 4 of Table 1 are solid wastes when accumulated speculatively. 

Table 1	

Use constituting disposal (§ 261.2(c)(1))	
Energy recovery/fuel (§ 261.2(c)(2))	
Reclamation (§ 261.2(c)(3)) (except as provided in § 261.4(a)(17) for mineral processing secondary materials)	
Speculative accumulation (§ 261.2(c)(4))	

(1)	
(2)	
(3)	
(4)	

Spent Materials	
(*)	
(*)	
(*)	
(*)	

Sludges (listed in § 261.31 or § 261.32)	
(*)	
(*)	
(*)	
(*)	

Sludges exhibiting a characteristic of hazardous waste	
(*)	
(*)	
(---)	
(*)	

By-products (listed in § 261.31 or § 261.32)	
(*)	
(*)	
(*)	
(*)	

By-products exhibiting a characteristic of hazardous waste	
(*)	
(*)	
(---)	
(*)

Commercial chemical products listed in § 261.33	
(*)	
(*)	
(---)
	
(---)	

Scrap metal that is not excluded under § 261.4(a)(14) 	
(*)	
(*)	
(*)	
(*)	

Note: The terms "spent materials", "sludges", "by-products", "scrap metal", and "processed scrap metal" are defined in ' 261.1.

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10) Amend Section 261.2 by deleting and reserving paragraph (f)(2) and adding paragraph (g) to read as follows: 

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(f)(1) Documentation of claims that materials are not solid wastes or are conditionally exempt from regulation.  In order to claim that a certain material is not a solid waste or is conditionally exempt from regulation, owners or operators must demonstrate that there is a known market or disposition for the material, and that they meet the terms of the exclusion or exemption. In doing so, they must provide appropriate documentation (such as contracts showing that a second person uses the material as an ingredient in a production process) to demonstrate that the material is not a waste, or is exempt from regulation. In addition, owners or operators of facilities claiming that they actually are recycling materials must show that they have the necessary equipment to do so.  Materials that are not legitimately recycled are discarded and are solid waste.  In determining whether their recycling is legitimate, owners or operators must address the requirements below.

(2)  Reserved. 

(g) Sham recycling. 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.

11) Add Section 8.85 {Statement of Basis and Purpose for the Rulemaking Hearing of February 16, 2016} to Part 8 of the Regulations to read as follows:
Statement of Basis and Purpose
Rulemaking Hearing of February 16, 2016
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.