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 § 261.2(f)(1) Documentation of claims that materials are not solid wastes or are conditionally exempt from regulation

1) Paragraph (f)(1) of § 261.2 is revised to read as follows:  
§ 261.2 Definition of solid waste.
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(f)(1) Documentation of claims that materials are not solid wastes or are conditionally exempt from regulation.  Respondents in actions to enforce regulations implementing Subtitle C of RCRA who raise a claim that a certain material is not a solid waste or is conditionally exempt from regulation, Iin order to claim that a certain material is not a solid waste or is conditionally exempt from regulation, owners or operators must demonstrate that there is a known market or disposition for the material, and that they meet the terms of the exclusion or exemption. In doing so, they must provide appropriate documentation (such as contracts showing that a second person uses the material as an ingredient in a production process) to demonstrate that the material is not a waste, or is exempt from regulation. In addition, owners or operators of facilities claiming that they actually are recycling materials must show that they have the necessary equipment to do so.  Materials that are not legitimately recycled are discarded and are solid waste.  In determining whether their recycling is legitimate, owners or operators must address the requirements below.
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2) Section 8.80 {Statement of Basis and Purpose for the Rulemaking Hearing of November 20, 2012} is added to Part 8 of the Regulations to read as follows:
Statement of Basis and Purpose
Rulemaking Hearing of November 20, 2012
8.80	Basis and Purpose.
This amendment to 6 CCR 1007-3, Part 261 is made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.
Amendment of § 261.2(f)(1) Documentation of claims that materials are not solid wastes or are conditionally exempt from regulation
This amendment modifies paragraph (f)(1) of § 261.2 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) to clarify that any person conducting recycling must be able to demonstrate that the recycling is legitimate, irrespective of whether or not the Division is pursuing an enforcement action.
A person claiming that a waste is not a solid waste or that a waste is conditionally exempt from regulation (e.g., because it is recycled in accordance with § 261.2(e)) must be prepared to demonstrate that the conditions for the exclusion are being met.  Generators must be able to provide documentation supporting their claim, such as proof the material is being reused in a production process or that there is a known market for the material (§ 261.2(f)).  An example of appropriate documentation would include a contract showing that a second person uses the material as an ingredient in a production process. In addition, owners or operators of facilities claiming that they actually are recycling materials must show that they have the necessary equipment to do so.  
In determining whether their recycling is legitimate, owners or operators must address the requirements in § 261.2(f)(2), which specify that legitimate recycling must involve a material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process, and the recycling process must produce a valuable product or intermediate. Materials that are not legitimately recycled are discarded and are solid waste.
This change will assist owners and operators in proactively maintaining documentation of claims that a material is not solid waste or is conditionally exempt from regulation rather than trying to re-create documentation retroactively as part of an enforcement action.  This change may also potentially reduce the incidence of enforcement actions if documentation is readily available.