DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

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

6 CCR 1007-3

hazardous waste

Confidentiality Determinations for Hazardous Waste Export and Import Documents

(Adopted by the Solid and Hazardous Waste Commission on May 19, 2020)

1) Revise the listings for sections 260.2 and 260.11 in the Table of Contents for Part 260 to read as follows:  

PART 260 ‑ HAZARDOUS WASTE MANAGEMENT SYSTEM:  GENERAL

	Subpart A ‑ General 
Sec.
260.1	Purpose, scope applicability, and effective date. 
260.2	Availability of information; confidentiality of information.
260.3	Use of number and gender.

	Subpart B ‑ Definitions

260.10 	Definitions.
260.11	Incorporation by reference.
260.12	Sampling and Analytical Methods.

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2) Revise Section 260.2 to read as follows:  

§ 260.2  Availability of information; confidentiality of information.

(a) Any information provided to EPA under 40 CFR parts 260 through 266 and 268 will be made available to the public to the extent and in the manner authorized by the Freedom of Information Act, 5 U.S.C. section 552, section 3007(b) of RCRA and EPA regulations implementing the Freedom of Information Act and section 3007(b), and 40 CFR part 2, as applicable. Any information provided to the Department pursuant to these regulations will be made available to the public to the extent and in the manner set forth in the Colorado Open Records Act, C.R.S., Title 24, Article 72 (CORA). 

(b) Except as provided under paragraphs (c) and (d) of this section, any person who submits information to EPA in accordance with 40 CFR parts 260 through 266 and 268 may assert a claim of business confidentiality covering part or all of that information by following the procedures set forth in 40 CFR § 2.203(b). Information covered by such a claim will be disclosed by EPA only to the extent, and by means of the procedures, set forth in 40 CFR part 2, subpart B.  Confidential business information (CBI) claims received by the Department will be disclosed by the Department to the extent, and by means of the procedures set forth in § 24-72-204, C.R.S. 

(c)(1) No claim of business confidentiality may be asserted by any person with respect to information entered on a Hazardous Waste Manifest (EPA Form 8700-22), a Hazardous Waste Manifest Continuation Sheet (EPA Form 8700-22A), or an electronic manifest format that may be prepared and used in accordance with 40 CFR § 262.20(a)(3).

(2) EPA will make any electronic manifest that is prepared and used in accordance with 40 CFR § 262.20(a)(3), or any paper manifest that is submitted to the system under 40 CFR §§ 264.71(a)(6) or 265.71(a)(6) available to the public under this section when the electronic or paper manifest is a complete and final document. Electronic manifests and paper manifests submitted to the system are considered by EPA to be complete and final documents and publicly available information after 90 days have passed since the delivery to the designated facility of the hazardous waste shipment identified in the manifest.

(d)(1) No claim of business confidentiality may be asserted by any person with respect to information contained in cathode ray tube export documents prepared, used and submitted under 40 CFR §§ 261.39(a)(5) and 261.41(a), and with respect to information contained in hazardous waste export, import, and transit documents prepared, used and submitted under 40 CFR §§ 262.82, 262.83, 262.84, 263.20, 264.12, 264.71, 265.12, 265.71, and 267.71, whether submitted electronically into EPA's Waste Import Export Tracking System or in paper format.

(2) EPA will make any cathode ray tube export documents prepared, used and submitted under 40 CFR §§ 261.39(a)(5) and 261.41(a), and any hazardous waste export, import, and transit documents prepared, used and submitted under 40 CFR §§ 262.82, 262.83, 262.84, 263.20, 264.12, 264.71, 265.12, 265.71, and 267.71 available to the public under this section when these electronic or paper documents are considered by EPA to be final documents. These submitted electronic and paper documents related to hazardous waste exports, imports and transits and cathode ray tube exports are considered by EPA to be final documents on March 1 of the calendar year after the related cathode ray tube exports or hazardous waste exports, imports, or transits occur.

3) Revise paragraph (a) of Section 260.11 and add paragraphs (a)(2) through (a)(4) to read as follows:  

§ 260.11 Incorporation by reference.

(a)(1) When used in parts 260 through 268 and part 100 of these regulations, the following publications are incorporated by reference.  Copies of materials incorporated by reference in the federal regulations may be inspected at the Library, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW. (3403T), Washington, DC 20460, libraryhq@epa.gov; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.   

(2) All cited references are for that reference that is valid on the particular date of adoption of the pertinent section of these regulations and do not include later amendments or editions of the incorporated material. 

(3) Materials or regulations incorporated by reference in these regulations are available for examination at the Colorado Department of Public Health and Environment and at the state publications depository libraries. Information concerning all materials or regulations incorporated by reference in 6 CCR 1007-3 may be obtained by contacting:
 
Regulatory and Program Authorization Coordinator
Colorado Department of Public Health and Environment
Hazardous Materials & Waste Management Division
4300 Cherry Creek Drive South
Denver, CO  80246-1530

(4) Federal statutes and regulations that are cited in parts 260 through 268 and part 100 of these regulations that are not specifically adopted by reference shall be used as guidance in interpreting the Federal regulations in 40 CFR Parts 260 through 266, 268, 270 and 124. 

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4)  Revise paragraphs (b)(5) and (f)(9) of Section 262.83  to read as follows:

§ 262.83  Exports of hazardous waste.

(a) ******* 

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(b) Notifications--(1) General notifications. At least sixty (60) days before the first shipment of hazardous waste is expected to leave the United States, the exporter must provide notification in English to EPA of the proposed transboundary movement. Notifications must be submitted electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The notification may cover up to one year of shipments of one or more hazardous wastes being sent to the same recovery or disposal facility, and must include all of the following information:

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(5) For cases where the proposed country of import and recovery or disposal operations are not covered under an international agreement to which both the United States and the country of import are parties, EPA will coordinate with the Department of State to provide the complete notification to country of import and any countries of transit. In all other cases, EPA will provide the notification directly to the country of import and any countries of transit. A notification is complete when EPA receives a notification which EPA determines satisfies the requirements of paragraph (b)(1)(i) through (b)(1)(xiii) of this section. 

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(f) Export contract requirements. (1) Exports of hazardous waste are prohibited unless they occur under the terms of a valid written contract, chain of contracts, or equivalent arrangements (when the movement occurs between parties controlled by the same corporate or legal entity). Such contracts or equivalent arrangements must be executed by the exporter, foreign importer (if different from the foreign receiving facility), and the owner or operator of the foreign receiving facility, and must specify responsibilities for each. Contracts or equivalent arrangements are valid for the purposes of this section only if persons assuming obligations under the contracts or equivalent arrangements have appropriate legal status to conduct the operations specified in the contract or equivalent arrangements.

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(9) Upon request by EPA, U.S. exporters, importers, or recovery facilities must submit to EPA copies of contracts, chain of contracts, or equivalent arrangements (when the movement occurs between parties controlled by the same corporate or legal entity). 

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5) Revise paragraphs (b)(4) and (f)(8) of Section 262.84 to read as follows:

§ 262.84  Imports of hazardous waste.

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(b) Notifications. In cases where the competent authority of the country of export does not regulate the waste as hazardous waste and, thus, does not require the foreign exporter to submit to it a notification proposing export and obtain consent from EPA and the competent authorities for the countries of transit, but EPA does regulate the waste as hazardous waste:
	
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	(4) A notification is complete when EPA determines the notification satisfies the requirements of paragraph (b)(1)(i) through (xiii) of this section. 

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(f) Import contract requirements. (1) Imports of hazardous waste must occur under the terms of a valid written contract, chain of contracts, or equivalent arrangements (when the movement occurs between parties controlled by the same corporate or legal entity). Such contracts or equivalent arrangements must be executed by the foreign exporter, importer, and the owner or operator of the receiving facility, and must specify responsibilities for each. Contracts or equivalent arrangements are valid for the purposes of this section only if persons assuming obligations under the contracts or equivalent arrangements have appropriate legal status to conduct the operations specified in the contract or equivalent arrangements.

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(8) Upon request by EPA, importers or disposal or recovery facilities must submit to EPA copies of contracts, chain of contracts, or equivalent arrangements (when the movement occurs between parties controlled by the same corporate or legal entity). 

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6) Add Section 8.95 (Statement of Basis for the Rulemaking Hearing of May 19, 2020) to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of August 20, 2019

8.95	Basis and Purpose.

These amendments to 6 CCR 1007-3, Parts 260 and 262 are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.
Confidentiality Determinations for Hazardous Waste Export and Import Documents

These amendments revise existing regulations of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) regarding the export and import of hazardous wastes from and into the United States. These amendments correspond to the Environmental Protection Agency (EPA) rule that was published in the Federal Register on December 26, 2017 {82 FR 60894-60901}, and the amendments to § 260.2(c) included in the Hazardous Waste E-Manifest rule published in the Federal Register on February 7, 2014 (79 FR 7518-7563).

The § 260.2 amendments apply a consistent approach in addressing confidentiality claims for export and import documentation, such that EPA will no longer accept confidential business information (CBI) claims that might be asserted in connection with:

a) processing, using, or retaining individual paper or electronic manifests or aggregate data (see § 260.2(c)(1));  and

b) individual documents and/or aggregate data related to the export, import, and transit of hazardous waste and export of excluded cathode ray tubes (CRTs) (see § 260.2(d)(1)).

The application of confidentiality determinations to RCRA export, import, and transit documents in this action generally affects three groups:

a) all persons who export or import (or arrange for the export or import of) of hazardous waste for recycling or disposal, including those hazardous wastes subject to the alternate management standards for:
(1) universal waste for recycling or disposal, 
(2) spent lead-acid batteries (SLABs) being shipped for reclamation,
(3) industrial ethyl alcohol being shipped for reclamation,
(4) hazardous waste samples of more than 25 kilograms being shipped for waste characterization or treatability studies, and
(5) hazardous recyclable materials being shipped for precious metal recovery;

(b) all recycling and disposal facilities who receive imports of such hazardous wastes for recycling or disposal; and

(c) all persons who export (or arrange for the export of) conditionally excluded cathode ray tubes (CRTs) being shipped for recycling.

Conforming revisions are being made to paragraphs (b)(5) and (f)(9) of section 262.83 (Exports of Hazardous Waste) and paragraphs (b)(4) and (f)(8) of section 262.84 (Imports of Hazardous Waste) to remove language regarding asserting CBI claims for notification and contract documents related to the export and import of hazardous waste. 

As part of this rulemaking, Colorado is also revising § 260.2 of its regulations to correspond to 40 CFR § 260.2 (Availability of information; confidentiality of information). These amendments include moving the incorporation by reference provisions currently found in § 260.2 of the state regulations and consolidating the information into § 260.11(Incorporation by reference).

Because of the federal government's special role in matters of foreign policy, EPA does not authorize States to administer Federal import/export functions in any section of the RCRA hazardous waste regulations. This approach of having Federal, rather than State, administering of the import/export functions promotes national coordination, uniformity and the expeditious transmission of information between the United States and foreign countries.

Although States do not receive authorization to administer the Federal government's import/export functions in 40 CFR part 262 subpart H, or the import/export relation functions in any other section of the RCRA hazardous waste regulations, State programs are still required to adopt the provisions in this rule to maintain their equivalency with the Federal program (see 40 CFR § 271.10(e)).

Colorado is not adopting the amendments to 40 CFR § 261.39 (Conditional Exclusion for Used, Broken Cathode Ray Tubes (CRTs) and Processed CRT Glass Undergoing Recycling), as Colorado has not adopted state analogs to these optional federal provisions. 

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 82 FR 60894-60901, December 26, 2017, and the preamble language for the amendment of § 260.2 as published in the Federal Register at 79 FR 7518-7563, February 7, 2014.