6 Colo. Code Regs. § 1007-3-8.72
These amendments to 6 CCR 1007-3, Part 261 are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.
Legitimate Recycling Amendments
These amendments to § § 261.1 and 261.2 codify the criteria to be used in determining when recycling of materials is legitimate, and provide state analogs to the applicable federal provisions of 40 CFR § 260.43 that were promulgated by the Environmental Protection Agency (EPA) as part of the Revisions to the Definition of Solid Waste (DSW) final rule published in the Federal Register on October 30, 2008 (73 FR 64668-64788).
EPA is currently reviewing a petition filed with the Administrator under RCRA section 7004(a) requesting that the Agency reconsider and repeal the DSW rule, and is soliciting comments and information to assist the agency in evaluating the petition. The Hazardous Materials and Waste Management Division (the "Division') may propose additional revisions to the Regulations as it completes its review of the October 2008 DSW rule, and any further amendments promulgated by the EPA as a result of its review of the petition to repeal the DSW rule.
The amendments being adopted at this time include:
Under the RCRA Subtitle C definition of solid waste, certain hazardous materials, if recycled, are not solid wastes, and therefore, are not subject to RCRA's "cradle to grave" management system. Because there are significant economic incentives to manage hazardous materials outside the RCRA regulatory system, there is a potential for some handlers to claim that they are recycling, when, in fact, they are conducting waste treatment, storage and /or disposal in the guise of recycling.
These amendments establish hazardous waste recycling legitimacy criteria as specific regulatory provisions for distinguishing legitimate recycling from "sham" recycling practices, and activities undertaken by an entity to avoid the requirements of managing a hazardous material as a hazardous waste. The legitimacy criteria are intended primarily to clarify in a regulatory context the concept of "legitimate recycling," which has been and is a key component of RCRA's regulatory program for recycling, but which to date has been implemented without regulatory criteria. These amendments include specific regulatory provisions for determining when hazardous materials are recycled legitimately.
A legitimacy determination involves evaluating case-specific information to determine whether or not a material being recycled is in effect being used as a commodity, rather than as a waste. The legitimacy determination would be a case-specific judgment as to whether a particular recycling practice is consistent with the criteria in § 261.2 (f) of the Regulations.
The four general criteria of § 261.2(f) for use in determining whether recycling of hazardous materials is legitimate are:
The legitimacy criteria of § 261.2(f) are intended to apply to a wide range of recycling scenarios across a wide array of industries. Although the Division expects that most, if not all, legitimate recycling practices will conform to each of the four criteria, the application of the criteria will require some subjective evaluation and balancing. Depending on the case-specific facts and circumstances, certain criteria may weigh more heavily than others in making legitimacy determinations. These determinations will require specific evaluation by the Division on what is considered "significant concentrations" of any hazardous constituents in accordance with § 261.2(f)(2)(iv)(A) & (B).
If the Department determines that a process is not legitimate recycling, the activity would be considered waste treatment or disposal and would thus be subject to regulation under the RCRA Subtitle C, if hazardous. These proposed criteria are intended to apply to all recycling of hazardous materials.
If an owner/operator claims they are conducting legitimate recycling but the Division determines that the process is sham recycling, the recycler and the generator(s) of the recycled material may be subject to enforcement action.
This Basis and Purpose incorporates by reference the applicable portions of the preamble language for the Environmental Protection Agency regulations published in the Federal Register at 73 FR 64668-64788, October 30, 2008.
Statement of Basis and Purpose - Rulemaking Hearing of February 16, 2010
6 CCR 1007-3-8.72