DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

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

6 CCR 1007-3

hazardous waste

Modernizing Ignitable Liquids Determinations 

(Adopted by the Solid and Hazardous Waste Commission on May 18, 2021)

1) Revise Section 260.11 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 (IBR).  Copies of all approved materials incorporated by reference in the federal regulations are available for inspection at the OLEM Docket in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC.  The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.  The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the OLEM Docket is (202) 566-0270. These approved materials are also available for inspection at the National Archives and Records Administration (NARA0. For information on the availability of this material at NARA, email fedreg.legal@nara.gov, or go to: www.archives.gov/federal-register/cfr/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. 
(b) American Petroleum Institute (API). The following materials are available from the American Petroleum Institute (API), 1220 L Street, Northwest, Washington, DC 20005, (855) 999-9870, www.api.org.
(1) API Publication 2517, Third Edition, February 1989, “Evaporative Loss from External Floating-Roof Tanks,” IBR approved for § 265.1084.
(2) [Reserved]
(c) ASTM International (ASTM). The following materials are available from ASTM International (ASTM), 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959, (877) 909-ASTM, www.astm.org.
(1) ASTM D93-79, “Standard Test Methods for Flash Point by Pensky-Martens Closed Cup Tester,” IBR approved for § 261.21(a).
(2) ASTM D93-80, “Standard Test Methods for Flash Point by Pensky-Martens Closed Cup Tester,” IBR approved for § 261.21(a).
(3) ASTM D1946-82, “Standard Method for Analysis of Reformed Gas by Gas Chromatography,” IBR approved for §§ 264.1033 and 265.1033.
(4) ASTM D2267-88, “Standard Test Method for Aromatics in Light Naphthas and Aviation Gasolines by Gas Chromatography,” IBR approved for § 264.1063.
(5) ASTM D2382-83, “Standard Test Method for Heat of Combustion of Hydrocarbon Fuels by Bomb Calorimeter (High-Precision Method),'' IBR approved for §§ 264.1033 and 265.1033.
(6) ASTM D2879-92, “Standard Test Method for Vapor Pressure--Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope,” IBR approved for § 265.1084.
(7) ASTM D3278-78, “Standard Test Methods for Flash Point for Liquids by Setaflash Closed Tester,” IBR approved for § 261.21(a).
(8) ASTM D8174–18 ‘‘Standard Test Method for Finite Flash Point Determination of Liquid Wastes by Small Scale Closed Cup Tester.’’ Approved March 15, 2018, IBR approved for § 261.21(a).
(9) ASTM D8175–18 ‘‘Standard Test Method for Finite Flash Point Determination of Liquid Wastes by Pensky-Martens Closed Cup Tester.’’ Approved March 15, 2018, IBR approved for § 261.21(a).
(10) ASTM E168-88, “Standard Practices for General Techniques of Infrared Quantitative Analysis,” IBR approved for § 264.1063.
(11) ASTM E169-87, “Standard Practices for General Techniques of Ultraviolet-Visible Quantitative Analysis,” IBR approved for § 264.1063.
(12) ASTM E260-85, “Standard Practice for Packed Column Gas Chromatography,” IBR approved for § 264.1063.
(13) ASTM E681–85 ‘‘Standard Test Method for Concentration Limits of Flammability of Chemicals (Vapors and gases),’’ Approved November 14, 1985, IBR approved for § 261.21(a).
(d) Environmental Protection Agency (EPA). Materials cited in paragraphs (d)(1) through (d)(3) is available from: National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161; the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, (202) 512-1800; EPA’s National Service Center for Environmental Publications at https://www.epa.gov/nscep. Material cited in paragraph (d)(4) of this section is available at https://www.epa.gov/hw-sw846.
.
(1) “APTI Course 415: Control of Gaseous Emissions,” EPA Publication EPA-450/2-81-005, December 1981, IBR approved for §§ 264.1035, 265.1035, and 100.41 (40 CFR § 270.24, 270.25).
(2) Method 1664, n-Hexane Extractable Material (HEM; Oil and Grease) and Silica Gel Treated n-Hexane Extractable Material (SGT-HEM; Non-polar Material) by Extraction and Gravimetry.
(i) Revision A, EPA–821–R–98–002, February 1999, IBR approved for Appendix IX to 40 CFR Part 261.
(ii) Revision B, EPA–821–R–10–001, February 2010, IBR approved for Appendix IX to 40 CFR Part 261.
(3) ‘‘Screening Procedures for Estimating the Air Quality Impact of Stationary Sources, Revised’’, October 1992, EPA Publication No. EPA–450/R–92–019, IBR approved for Appendix IX to § 264.348 (40 CFR Part 266, Appendix IX).
(4) The following methods as published in the test methods compendium known as “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846, Third Edition.  
(i) Method 0010, Modified Method 5 Sampling Train, Revision 1, dated August 2018, IBR approved for 40 CFR Part 261, Appendix IX.
(ii) Method 0011, Sampling for Selected Aldehyde and Ketone Emissions from Stationary Sources, Revision 1, dated August 2018, IBR approved for 40 CFR Part 261, Appendix IX, and Appendix IX to § 264.348 (40 CFR Part 266, Appendix IX).
(iii) Method 0020, Source Assessment Sampling System (SASS), Revision 1, dated August 2018, IBR approved for 40 CFR Part 261, Appendix IX.
(iv) Method 0023A, Sampling Method for Polychlorinated Dibenzo-p-Dioxins and Polychlorinated Dibenzofuran Emissions from Stationary Sources, Revision 2, dated August 2018, IBR approved for 40 CFR Part 261, Appendix IX, Appendx IX to § 264.348 (40 CFR Part 266, Appendix IX), and § 264.342(b) (40 CFR § 266.104).
(v) Method 0030, Volatile Organic Sampling Train, dated September 1986 and in the Basic Manual, IBR approved for 40 CFR Part 261, Appendix IX.
(vi) Method 0031, Sampling Method for Volatile Organic Compounds (SMVOC), dated December 1996 and in Update III, IBR approved for 40 CFR Part 261, Appendix IX.
(vii) Method 0040, Sampling of Principal Organic Hazardous Constituents from Combustion Sources Using Tedlar® Bags, dated December 1996 and in Update III, IBR approved for 40 CFR Part 261, Appendix IX.
(viii) Method 0050, Isokinetic HCl/Cl2 Emission Sampling Train, dated December 1996 and in Update III, IBR approved for 40 CFR Part 261, Appendix IX, Appendix IX to § 264,348 (40 CFR Part 266, Appendix IX), and § 264.345 (40 CFR § 266.107).
(ix) Method 0051, Midget Impinger HCl/Cl2 Emission Sampling Train, Revision 1, dated August 2018, IBR approved for 40 CFR Part 261, Appendix IX, Appendix IX to § 264.348 (40 CFR Part 266, Appendix IX), and § 264,345 (40 CFR § 266.107).
(x) Method 0060, Determination of Metals in Stack Emissions, dated December 1996 and in Update III, IBR approved for 40 CFR Part 261, Appendix IX, § 264,344 (40 CFR § 266.106), and Appendix IX to § 264.348 (40 CFR Part 266, Appendix IX).
(xi) Method 0061, Determination of Hexavalent Chromium Emissions from Stationary Sources, dated December 1996 and in Update III, IBR approved for 40 CFR Part 261, Appendix IX, § 264.344(40 CFR § 266.106), and Appendix IX to § 264.348 (40 CFR Part 266, Appendix IX).
(xii) Method 1010B, Test Methods for Flash Point by Pensky-Martens Closed-Cup Tester, dated December 2018, IBR approved for § 261.21 and 40 CFR Part 261, Appendix IX.
(xiii) Method 1020C, Standard Test Methods for Flash Point by Setaflash (Small Scale) Closed-Cup Apparatus, dated December 2018, IBR approved for § 261.21 and 40 CFR Part 261, Appendix IX.
(xiv) Method 1110A, Corrosivity Toward Steel, dated November 2004 and in Update IIIB, IBR approved for § 261.22 and 40 CFR Part 261, Appendix IX.
(xv) Method 1310B, Extraction Procedure (EP) Toxicity Test Method and Structural Integrity Test, dated November 2004 and in Update IIIB, IBR approved for 40 CFR Part 261, Appendix IX.
(xvi) Method 1311, Toxicity Characteristic Leaching Procedure, dated September 1992 and in Update I, IBR approved for 40 CFR Part 261, Appendix IX, and §§ 261.24, 268.7, 268.40.
(xvii) Method 1312, Synthetic Precipitation Leaching Procedure, dated September 1994 and in Update III, IBR approved for Part 261, Appendix IX.
(xviii) Method 1320, Multiple Extraction Procedure, dated September 1986 and in the Basic Manual, IBR approved for 40 CFR Part 261, Appendix IX.
(xix) Method 1330A, Extraction Procedure for Oily Wastes, dated September 1992 and in Update I, IBR approved for 40 CFR Part 261, Appendix IX.
(xx) Method 9010C, Total and Amenable Cyanide: Distillation, dated November 2004 and in Update IIIB, IBR approved for 40 CFR Part 261, Appendix IX and §§ 268.40, 268.44, 268.48.
(xxi) Method 9012B, Total and Amenable Cyanide (Automated Colorimetric, with Off-Line Distillation), dated November 2004 and in Update IIIB, IBR approved for 40 CFR Part 261, Appendix IX and §§ 268.40, 268.44, 268.48.
(xxii) Method 9040C, pH Electrometric Measurement, dated November 2004 and in Update IIIB, IBR approved for 40 CFR Part 261, Appendix IX and § 261.22.
(xxiii) Method 9045D, Soil and Waste pH, dated November 2004 and in Update IIIB, IBR approved for 40 CFR Part 261, Appendix IX.
(xxiv) Method 9060A, Total Organic Carbon, dated November 2004 and in Update IIIB, IBR approved for 40 CFR Part 261, Appendix IX, and §§ 264.1034, 264.1063, 265.1034, 265.1063.
(xxv) Method 9070A, n-Hexane Extractable material (HEM) for Aqueous Samples, dated November 2004 and in Update IIIB, IBR approved for 40 CFR Part 261, Appendix IX.
(xxvi) Method 9071B, n-Hexane Extractable Material (HEM) for Sludge, Sediment, and Solid Samples, dated April 1998 and in Update IIIA, IBR approved for 40 CFR Part 261, Appendix IX.
(xxvii) Method 9095B, Paint Filter Liquids Test, dated November 2004 and in Update IIIB, IBR approved, 40 CFR Part 261, Appendix IX, and §§ 264.190, 264.314, 265.190, 265.314, 265.1081, 268.32, and 40 CFR § 267.202.
(e) National Fire Protection Association (NFPA). The following materials are available from the National Fire Protection Association, 1 Batterymarch Park, P.O. Box 9101, Quincy, MA 02269-9101 (800) 344-3555, www.nfpa.org.
(1) NFPA 30, “Flammable and Combustible Liquids Code,” 1977 edition, IBR approved for §§ 262.16(b), 264.198(b), 265.198(b), and 40 CFR § 267.202.
(2) NFPA 30, “Flammable and Combustible Liquids Code,” 1981 edition, IBR approved for §§ 262.16(b), 264.198(b), 265.198(b) and 40 CFR § 267.202.
(f) Organization for Economic Cooperation and Development (OECD). The following materials are available from the Organization for Economic Cooperation and Development, Environment Directorate, 2 rue Andre Pascal, F-75775 Paris Cedex 16, France, owww.oecd-ilibrary.org/.
(1) Guidance Manual for the Control of Transboundary Movements of Recoverable Wastes, copyright 2009, Annex B: OECD Consolidated List of Wastes Subject to the Green Control Procedure and Annex C: OECD Consolidated List of Wastes Subject to the Amber Control Procedure, IBR approved for §§ 262.82(a), 262.83(b), (d), and (g), and 262.84(b) and (d) of these regulations.
(2) [Reserved]

2) Revise Section 261.21 to read as follows:  

§ 261.21 Characteristic of ignitability.
(a) A solid waste exhibits the characteristic of ignitability if a representative sample of the waste has any of the following properties: 
(1) It is a liquid, other than a solution containing less than 24 percent alcohol by volume and at least 50 percent water by weight, that has a flash point less than 60º C (140º  F), as determined by using one of the following ASTM standards: ASTM D93-79, ASTM D93-80, D3278-78, D8174-18, or D8175-18 as specified in SW-846 Test Methods 1010(B) or 1020(C) (all incorporated by reference, see § 260.11).
(2) It is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture, or spontaneous chemical changes and, when ignited, burns so vigorously and persistently that it creates a hazard.
(3) It is an ignitable compressed gas.  
(i) The term “compressed gas” shall designate any material or mixture having in the container an absolute pressure exceeding 40 p.s.i. at 70ºF or, regardless of the pressure at 70ºF, having an absolute pressure exceeding 104 p.s.i. at 130ºF; or any liquid flammable material having a vapor pressure exceeding 40 p.s.i. absolute at 100ºF as determined by ASTM Test D-323.
(ii) A compressed gas shall be characterized as ignitable if any one of the following occurs:
(A) Either a mixture of 13 percent or less (by volume) with air forms a flammable mixture or the flammable range with air is wider than 12 percent regardless of the lower limit. These limits shall be determined at atmospheric temperature and pressure. The method of sampling and test procedure shall be the ASTM E681-85 (incorporated by reference, see § 260.11), or other equivalent methods approved by the Associate Administrator, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation.
(B) It is determined to be flammable or extremely flammable using 49 CFR § 173.115(l). 
(4) It is an oxidizer.  An oxidizer for the purpose of this subchapter is a substance such as a chlorate, permanganate, inorganic peroxide, or a nitrate, that yields oxygen readily to stimulate the combustion of organic matter.
(i) An organic compound containing the bivalent -O-O- structure and which may be considered a derivative of hydrogen peroxide where one or more of the hydrogen atoms have been replaced by organic radicals must be classed as an organic peroxide unless:
(A) The material meets the definition of a Division 1.1, 1.2, or 1.3 explosive, as defined in § 261.23(a)(8), in which case it must be classed as an explosive,
(B) The material is forbidden to be offered for transportation according to 49 CFR 172.101 and 49 CFR 173.21,
(C) It is determined that the predominant hazard of the material containing an organic peroxide is other than that of an organic peroxide, or
(D) According to data on file with the Pipeline and Hazardous Materials Safety Administration in the U.S. Department of Transportation, it has been determined that the material does not present a hazard in transportation.
(b) A solid waste that exhibits the characteristic of ignitability has the EPA Hazardous Waste Number of D001.

3) Revise the following paragraph in Section 5.0 (Hazardous Waste Combustion Air Quality Screening Procedure) of Appendix IX to Section 264.348 to read as follows: 

Section 5.0  Hazardous Waste Combustion Air Quality Screening Procedure

******

If any of these criteria are met or the Director determines that this procedure is not appropriate, then detailed site-specific modeling or modeling using the "Screening Procedures for Estimating the Air Quality Impact of Stationary Sources, Revised", October 1992, EPA Publication No. 450/R-92-019, Office of Air Quality Planning and Standards, is required. Detailed site-specific dispersion modeling must conform to the EPA "Guidance on Air Quality Models (Revised)", EPA 450/2-78-027R, Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina, July 1986. This document provides guidance on both the proper selection and regulatory application of air quality models.

4) Add Section 8.97 (Statement of Basis for the Rulemaking Hearing of May 18, 2021) to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of May 18, 2021

8.97	Basis and Purpose.

These amendments to 6 CCR 1007-3, Parts 260, 261 and 264 are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Modernizing Ignitable Liquids Determinations

These amendments to Parts 260, 261 and 264 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) correspond to and provide equivalency with the Environmental Protection Agency (EPA) Modernizing Ignitable Liquids Determinations final rule published in the Federal Register on July 7, 2020 {85 FR 40594-40608}, and which became effective on September 8, 2020. 

The federal rule finalized updates to the regulations for the identification of ignitable hazardous waste under the Resource Conservation and Recovery Act (RCRA), and codified existing guidance regarding the definition of aqueous for purposes of 40 CFR 261.21(a)(1).  The federal rule also updated cross references to Department of Transportation (DOT) regulations, made certain other conforming amendments and technical corrections to the § 261.21 regulations, and added mercury thermometer alternatives in the air sampling and stack emissions test methods in SW-846 Test Methods 0010, 0011, 0020, 0023A, and 0051. 

The specific amendments being adopted as part of this rulemaking include the following:

1) Section 260.11 (Incorporation by reference) – is being amended by:

A) revising the section to list the test methods identified in § 260.11 in alphabetical and numerical order, and to update the information regarding the availability of the incorporated-by-reference (IBR) materials.

B)  adding SW–846 Method 1010B, SW– 846 Method 1020C, ASTM D8174–18, ASTM D8175–18, and ASTM E681–85 to the list of test methods incorporated by reference in § 261.11.  SW–846 Method 1010B and SW–846 Method 1020C list the required methods to determine flashpoint for ignitable hazardous waste. SW–846 Method 1010B lists the Pensky-Martens flash point methods, which are ASTM Standards D93–79, D93–80, and D8175–18. SW–846 Method 1020C lists the Setaflash (small-scale) closed cup flash point methods, which are the ASTM Standards D3278–78 and D8174–18. ASTM D8174–18 is a test method to determine the flash point of liquid wastes using a small-scale (Setaflash) apparatus. ASTM D8175–18 is a test method used to determine the flash point of liquid wastes using a Pensky-Martens apparatus. ASTM E681–85 is a test method used to determine the upper and lower concentration limits of flammability for chemicals having sufficient vapor pressure to form flammable mixtures with air.

C) updating the incorporation by reference listings for SW-846 Methods 0010, 0011, 0020, 0023A and 0051.  These test methods were updated to allow the use of non-mercury thermometers in these air sampling and stack emission test methods.

D) deleting test method ASTM E 926-88, “Standard Test Methods for Preparing Refuse-Derived Fuel (RDF) Samples for Analyses of Metals,” Test Method C--Bomb, Acid Digestion Method.  

2) Section 261.21 (Characteristic of ignitability) is being amended by: 

A) revising paragraph (a)(1) to update the test methods required for measuring the flash point of a liquid waste when determining if that waste is an ignitable waste.  The references to Methods 1010B and 1020C are updated to include ASTM standards D8174-18 and D8175-18.

B) revising paragraph (a)(1) to define aqueous as ‘‘at least 50 percent water by weight’’. 

C) revising paragraph (a)(3)(ii)(A) to specify the ASTM standard E 681–85 as the approved test for determining whether any waste that is a compressed gas exhibits the RCRA ignitability characteristic, and to remove reference to the Bureau of Explosives as an approving agency for sampling and test methods. 

D) revising paragraph (a)(3)(ii)(B) to update the definition of ignitable compressed gas within paragraph(a)(3)(ii), removing references to Bureau of Explosives test methods, and mirroring the definition and testing that DOT now requires. 

E) deleting paragraphs (a)(3)(ii)(C) and (D). 

F) revising paragraph (a)(4)(i)(A) to replace the currently referenced “Class A explosive or a Class B explosive” with “Division 1.1, 1.2, or 1.3 explosive” to be consistent with DOT’s revised classification system for explosives.  

G) deleting the four notes at the end of § 261.21, which are outdated and no longer necessary.

These amendments are considered to be neither more nor less stringent than the existing provisions, and Colorado is not required to adopt these provisions.  However, the Division believes that the adoption of these amendments will help provide greater clarity to hazardous waste identification, provide flexibility in testing requirements, and enhance protection of human health and the environment.

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 85 FR 40594-40608, July 7, 2020.