DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

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

6 CCR 1007-3

hazardous waste

Conforming Changes to Canada-Specific Hazardous Waste Import-Export Recovery and Disposal Operation Codes 

(Adopted by the Solid and Hazardous Waste Commission on May 16, 2023)

1) Revise paragraphs (13) through (17) of the definition of “Disposal operations” in Section 262.81 to read as follows:  

§ 262.81  Definitions.
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“Disposal operations” means activities which do not lead to the possibility of resource recovery, recycling, reclamation, direct re-use or alternate uses, which include:
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(13) D13 Interim blending or mixing, before an operation that bears any of the disposal operations D1 to D12.
(14) D14 Interim repackaging, before an operation that bears any of the disposal operations D1 to D12.
(15) D15 Interim storage, before an operation that bears any of the disposal operations D1 to D12.
(16) DC1 Release, including the venting of compressed or liquified gases, or treatment, other than by any of disposal operation codes D1 to D12 (for transboundary movements with Canada only).
(17)  DC2 Testing of a new technology to dispose of a hazardous waste (for transboundary movements with Canada only). 
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2) Revise paragraphs (11) through (16) of the definition of “Recovery operations” in Section 262.81 to read as follows:  

§ 262.81  Definitions.  

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"Recovery operations" means activities leading to resource recovery, recycling, reclamation, direct re-use or alternative uses, which include:
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(11) R11 Use of residual materials obtained from any of the recovery operation codes numbered R1 through R10 or RC1.
(12) R12 Interim exchange of wastes before recycling using any of the recovery operation codes numbered R1 through R11 or RC1.
(13) R13 Interim accumulation of wastes before recycling using any of the recovery operation codes numbered R1 through R11 or RC1.
(14) RC1 Recovery or regeneration of a substance or use or re-use of a recyclable material, other than by any of operations R1 to R10 (for transboundary shipments with Canada only).
(15) RC2 Testing of a new technology to recycle a hazardous recyclable material (for transboundary shipments with Canada only).
(16) RC3 Interim storage prior to any of operations R1 to R11 or RC1 (for transboundary shipments with Canada only). 
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3) Revise paragraphs (b)(3) and (f)(6) of Section 262.83 to read as follows:  

§ 262.83  Exports of hazardous waste.

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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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(3) Notifications listing interim recycling operations or interim disposal operations. If the foreign receiving facility listed in paragraph (b)(1)(ii) of this section will engage in any of the interim recovery operations R12 or R13 or interim disposal operations D13 through D15, or in the case of transboundary movements with Canada, any of the interim recovery operations R12, R13, or RC3, or interim disposal operations D13 to D14, or D15, the notification submitted according to paragraph (b)(1) of this section must also include the final foreign recovery or disposal facility name, address, telephone, fax numbers, email address, technologies employed, and which of the applicable recovery or disposal operations R1 through R11 and D1 through D12, or in the case of transboundary movements with Canada, which of the applicable recovery or disposal operations R1 through R11, RC1 to RC2, D1 through D12, and DC1 to DC2  will be employed at the final foreign recovery or disposal facility. The recovery and disposal operations in this paragraph are defined in § 262.81.

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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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(6) Contracts must specify that the foreign importer or the foreign receiving facility that performed interim recycling operations R12, R13, or RC3, or interim disposal operations D13 through D15, (recovery and disposal operations defined in § 262.81) as appropriate, will:

(i) Provide the notification required in paragraph (f)(3)(ii) of this section prior to any re-export of the hazardous wastes to a final foreign recovery or disposal facility in a third country; and

(ii) Promptly send copies of the confirmation of recovery or disposal that it receives from the final foreign recovery or disposal facility within one year of shipment delivery to the final foreign recovery or disposal facility that performed one of recovery operations R1 through R11, or RC1, or one of disposal operations D1 through D12, DC1 or DC2 to the competent authority of the country of import. For contracts that will be in effect on or after the electronic import-export reporting compliance date, the contracts must additionally specify that the foreign facility send copies to EPA at the same time using the allowable method listed in paragraph (b)(1) of this section on or after that date.

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4) Revise paragraphs (b)(2), (f)(5), (g)(2), and (h)(2)(iii) 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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(2) Notifications listing interim recycling operations or interim disposal operations. If the receiving facility listed in paragraph (b)(1)(ii) of this section will engage in any of the interim recovery operations R12, R13, or RC3 or interim disposal operations D13 through D15, the notification submitted according to paragraph (b)(1) of this section must also include the final recovery or disposal facility name, address, telephone, fax numbers, email address, technologies employed, and which of the applicable recovery or disposal operations R1 through R11, RC1, and D1 through D12, will be employed at the final recovery or disposal facility. The recovery and disposal operations in this paragraph are defined in § 262.81.

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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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(5) Contracts must specify that the importer or the receiving facility that performed interim recycling operations R12, R13, or RC3, or interim disposal operations D13 through D15, as appropriate, will provide the notification required in § 262.83(b)(7) prior to the re-export of hazardous wastes. The recovery and disposal operations in this paragraph are defined in § 262.81.

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(g) Confirmation of recovery or disposal. The receiving facility must do the following:

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(2) If the receiving facility performed any of recovery operations R12, R13, or RC3, or disposal operations D13 through D15, the receiving facility shall promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC1 to RC2, or one of disposal operations D1 through D12, or DC1 to DC2, to the competent authority of the country of export, and for confirmations received on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The recovery and disposal operations in this paragraph are defined in § 262.81.

(h) Recordkeeping. (1) The importer shall keep the following records and provide them to EPA or authorized state personnel upon request:

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(2) The receiving facility shall keep the following records:

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(iii) For the receiving facility that performed any of recovery operations R12, R13, or RC3, or disposal operations D13 through D15 (recovery and disposal operations defined in § 262.81), a copy of each confirmation of recovery or disposal that the final recovery or disposal facility sent to it for at least three (3) years from the date that the final recovery or disposal facility completed processing the waste shipment; and

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5) Revise paragraph (a)(4)(ii) of Section 264.12 to read as follows:

§ 264.12 Required notices.

(a) The owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to Part 262, Subpart H from a foreign source must submit the following required notices: 

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(4) As per § 262.84(g), such owner or operator shall:

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(ii) If the facility performed any of recovery operations R12, R13, or RC3, or disposal operations D13 through D15, promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC1, or one of disposal operations D1 through D12, or DC1 to DC2, to the competent authority of the country of export that controls the shipment as an export of hazardous waste, and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The recovery and disposal operations in this paragraph are defined in § 262.81.

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6) Revise paragraph (a)(4)(ii) of Section 265.12 to read as follows:

§ 265.12 Required notices. 

(a) The owner or operator of a facility that is arranging or has arranged to receive hazardous waste subject to Part 262, Subpart H from a foreign source must submit the following required notices: 

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(4) As per § 262.84(g), such owner or operator shall:

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(ii) If the facility performed any of recovery operations R12, R13, or RC3, or disposal operations D13 through D15, promptly send copies of the confirmation of recovery or disposal that it receives from the final recovery or disposal facility within one year of shipment delivery to the final recovery or disposal facility that performed one of recovery operations R1 through R11, or RC1, or one of disposal operations D1 through D12, or DC1 to DC2, to the competent authority of the country of export that controls the shipment as an export of hazardous waste, and on or after the electronic import-export reporting compliance date, to EPA electronically using EPA's Waste Import Export Tracking System (WIETS), or its successor system. The recovery and disposal operations in this paragraph are defined in § 262.81.

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7) Add Section 8.102 (Statement of Basis for the Rulemaking Hearing of May 16, 2023) to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of May 16, 2023

8.102	Basis and Purpose.

These amendments to 6 CCR 1007-3, Parts 262, 264 and 265 are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Amendment of Hazardous Waste Import-Export Recovery and Disposal Operation Codes

These amendments to Parts 262, 264 and 265 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) correspond to and provide equivalency with the Environmental Protection Agency (EPA) Conforming Changes to Canada-Specific Hazardous Waste Import-Export Recovery and Disposal Operation Codes final rule published in the Federal Register on October 1, 2021 {86 FR 45381-45386}, and which became effective in all states on October 31, 2021. These import and export requirements are administered by the Federal government as a foreign policy matter, and are not administered by States.

The EPA issued the October 31, 2021 final rule to reflect changes to regulations related to Canadian import-export recovery and disposal operations that Canada promulgated in the Canada Gazette Part II on March 17, 2021 and that become effective in Canada on October 31, 2021. The EPA revised twelve of its import-export recovery and disposal code numbers and descriptions in 40 CFR 262.81 to reflect the revised Canadian regulatory definitions so that export and import notices and subsequent movement documents exchanged between Canada and the United States on or after October 31, 2021, do not contain conflicting information.

Because of the federal government’s special role in matters of foreign policy, the 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 the federal rule to maintain their equivalency with the Federal program (see 40 CFR 271.10(e)). 

These amendments make conforming changes to Part 262, Subpart H of Colorado’s Hazardous Waste Regulations (6 CCR 1007-3) related to twelve hazardous waste import-export recovery and disposal operations used in hazardous waste export and import notices submitted to EPA by U.S. exporters and importers, and in movement documents that accompany export and import shipments.

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 86 FR 445381-45386, October 1, 2021.