DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

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

6 CCR 1007-3

hazardous waste

Proposed Amendment of  § 268.7 Testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities.

1) Section 268.7 is amended by revising paragraphs (a)(1) and (a)(2) to read as follows:  

§ 268.7 	Testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities.

(a) Requirements for generators:

(1) A generator of hazardous waste must determine if the waste has to be treated before it can be land disposed.  This is done by determining if the hazardous waste meets the treatment standards in § 268.40, § 268.45, or § 268.49.  This determination can be made concurrently with the hazardous waste determination required in § 262.11 of these regulations, in either of two ways: testing the waste or using knowledge of the waste.  If the generator tests the waste, testing would normally determine the total concentration of hazardous constituents, or the concentration of hazardous constituents in an extract of the waste obtained using test method 1311 in "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW 846, ( incorporated by reference, see § 260.11 of these regulations), depending on whether the treatment standard for the waste is expressed as a total concentration or concentration of hazardous constituent in the waste's extract.  (Alternatively, the generator must send the waste to a RCRA-permitted hazardous waste treatment facility, where the waste treatment facility must comply with the requirements of § 264.13 of these regulations and paragraph (b) of this section. In addition, some hazardous wastes must be treated by particular treatment methods before they can be land disposed and some soils are contaminated by such hazardous wastes.  These treatment standards are also found in § 268.40, and are described in detail in § 268.42, Table 1.  These wastes, and soils contaminated with such wastes, do not need to be tested (however, if they are in a waste mixture, other wastes with concentration level treatment standards would have to be tested).  If a generator determines they are managing a waste or soil contaminated with a waste, that displays a hazardous characteristic of ignitability, corrosivity, reactivity, or toxicity, they must comply with the special requirements of § 268.9 of this part in addition to any applicable requirements in this section.

(2) If the waste or contaminated soil does not meet the treatment standards, or if the generator chooses not to make the determination of whether his waste must be treatedwith the initial shipment of waste to each treatment or storage facility, the generator must send a one-time written notice to each treatment or storage facility receiving the waste, and place a copy in the file.  The notice must include the information in column "268.7(a)(2)" of the Generator Paperwork Requirements Table in § 268.7(a)(4) of this section.  (Alternatively, if the generator chooses not to make the determination of whether the waste must be treated, the notification must include the EPA Hazardous Waste Numbers and Manifest Number of the first shipment and must state “This hazardous waste may or may not be subject to the LDR treatment standards.  The treatment facility must make the determination.”) No further notification is necessary until such time that the waste or facility change, in which case a new notification must be sent and a copy placed in the generator's file.

2) Section 268.7 is amended by revising paragraph (b)(6) to read as follows:  

§ 268.7 	Testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities.

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(b) Treatment facilities must test their wastes according to the frequency specified in their waste analysis plans as required by § 264.13 (for permitted TSDs) or § 265.13 (for interim status facilities).  Such testing must be performed as provided in paragraphs (b)(1), (b)(2) and (b)(3) of this section.

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(6) Where the wastes are recyclable materials used in a manner constituting disposal subject to the provisions of § 267.20(b) regarding treatment standards and prohibition levels, the owner or operator of a treatment facility (i.e., the recycler) must, for the initial shipment of waste, prepare a one-time certification described in paragraph (b)(4) of this section, and a one-time notice which includes the information listed in paragraph (b)(3) of this section (except the manifest number).  The certification and notification must be placed in the facility’s on-site files.  If the waste or the receiving facility changes, a new certification and notification must be prepared and placed in the on-site files.  In addition, the recycling facility must also keep records of the name and location of each entity receiving the hazardous waste-derived product.

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3) Section 8.87 {Statement of Basis and Purpose for the Rulemaking Hearing of February 21, 2017} is added to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of February 21, 2017

8.87	Basis and Purpose.

These amendments to 6 CCR 1007-3, Part 268.7 are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Amendment of § 268.7 Testing, tracking, and recordkeeping requirements for generators, treaters, and disposal facilities.

These amendments to Section 268.7 clarify the generator waste analysis and notification requirements under RCRA’s land disposal restrictions (LDR).  Section 268.7(a)(1) is being amended to add a cross reference to § 262.11, in order to reduce duplicative  testing requirements and clarify that that the two generator waste analysis functions can be performed concurrently, thus avoiding redundant waste analysis. 

To provide additional flexibility to generators of hazardous waste, § 268.7(a)(1) is also being modified to clarify that if a generator does not want to determine, based on waste analysis or knowledge of the waste, whether the waste must be treated, he may assume that he is subject to the full array of LDR requirements.  The generator then must send the waste to a RCRA-permitted hazardous waste treatment facility where the treatment facility must make the determination when the waste has met the LDR treatment standards (possibly even upon receipt as generated).  A conforming change is also being made to the notification requirement in § 268.7(a)(2) for such cases. 

Section 268.7(b)(6) is being amended to eliminate the requirement to submit notifications and certifications to the Division, and instead require that the information be placed in the treating/recycling facility’s on-site files.  In accordance with the requirements of § 268.7(b)(6), facilities (i.e., recyclers) must prepare and maintain notifications and certifications with the initial shipment of waste, and prepare new documentation only if the waste, the treatment process, or the receiving facility changes.  Maintaining these records on-site, and available for inspection, provides sufficient documentation of waste treatment, and reduces the burden on the facility.  

These amendments are equivalent to, or less stringent than the existing provisions, and Colorado is not required to adopt these provisions.  Nevertheless, the Division believes that these amendments will provide some burden reduction to the regulated community, without compromising human health or environmental protection.

This Basis and Purpose incorporates by reference the applicable preamble language for the Environmental Protection Agency regulations that were published in the Federal Register at 71 FR 16862-16915, April 4, 2006 for which state analogs are being adopted at this time.