Statement of Basis and Purpose
Rulemaking Hearing of August 20, 2024
These amendments to 6 CCR 1007-3, Parts 260, 261, 262, 264, 265, and 267 are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.
Technical Corrections of the Hazardous Waste Regulations
These amendments to the Colorado Hazardous Waste Regulations (6 CCR 1007-3) finalize revisions to the state's hazardous waste generator regulatory program. These amendments correspond to the Environmental Protection Agency (EPA) rule published in the Federal Register on August 9, 2023 {89 FR 54086-54115}, and amended on December 6, 2023 {89 FR 84710-84713}.
The August 9, 2023 federal rule made over 100 technical corrections to correct or clarify specific provisions in the existing federal regulations that were promulgated in the Hazardous Waste Generator Improvements rule (November 28, 2016; 81 FR 85732), the Hazardous Waste Pharmaceuticals rule (February 22, 2019; 84 FR 5816), and the Definition of Solid Waste (DSW) rule (January 13, 2015; 80 FR 1694). Corresponding amendments to the Colorado HW Regulations in response to these federal rules were adopted by the Solid and Hazardous Waste Commission on May 15, 2018 (See § 8.91), May 19, 2020 (See § 8.95) and February 16, 2016 (§ 8.85).
On December 6, 2023, a correction to the August 9, 2023 final rule was published in the Federal Register for the withdrawal of eight amendments in the August 9, 2023 final rule following EPA's receipt of adverse comments on the eight amendments.
These amendments to the Colorado hazardous waste regulations correct typographical errors, correct incorrect or outdated citations, make minor clarifications to the regulations, and update outdated address information.
This rulemaking includes the following amendments:
1) Revising the definition of "Final closure" in § 260.10 to update the citation from § 262.34 to §§ 262.16 and 262.17.2) Revising § 261.1(a)(1) to remove the reference to hazardous waste "produced by very small quantity generators", because the regulations for very small quantity generators are now in Part 262.3) Revising § 261.6(c)(1) to add a reference to containment buildings (Subpart DD of Parts 264 and 265) to the list of management methods applicable to recyclable materials.4) Revising § 261.11 by removing and reserving paragraph (c).5) Revising the text of § 261.30(d) to delete the reference to § 261.32 and by changing "exclusion limits" to "generator category limits" to match the same language as the title to Table 1: Generator Category Limits.6)Notification Requirements: The regulatory text in §§ 262.1 (definition of "Condition for exemption); 262.16; and in § 262.17 introductory paragraph, and paragraphs (b), (c), (d), (e), and (f) is being revised to make it clear that the generators that are operating in compliance with the generator regulations are exempted from the notification requirements in Part 99 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) specifically as they pertain to treatment, storage, and disposal facilities.7) Section 262.10 is amended by adding the following notes at the end of § 262.10: Note 1 to § 262.10: The provisions of §§ 262.15 through 262.17 are applicable to the on-site accumulation of hazardous waste by generators. Therefore, the provisions of §§ 262.15 through 262.17 only apply to owners or operators who are shipping hazardous waste which they generated at that facility.
Note 2 to § 262.10: A generator who treats, stores, or disposes of hazardous waste on-site must comply with the applicable standards and permit requirements set forth in Parts 264, 265, 267, 268, and 100 of these regulations.
8) Section 262.14 is amended by revising paragraphs (a)(3) and (a)(4) to restore the independent requirements that were inadvertently left out of the specific list of provisions that apply to the waste when a VSQG exceeds the accumulation threshold: one for acute hazardous wastes and one for non-acute hazardous wastes. This amendment revises both lists - in section 262.14(a)(3) and (4) to restore the independent requirements that were inadvertently left out of the lists, including the notification; preparation and use of the Uniform Hazardous Waste Manifest when shipping the waste off site; and complying with pre-transport requirements, recordkeeping and reporting requirements, and transboundary shipment requirements.9) Section 262.16 is amended by: a. Revising paragraph (b) to include a reference to section 262.16(e) in the list of provisions in this section describing when a small quantity generator can accumulate hazardous waste for more than 180 days.b. Revising paragraph (b)(5) to remove an "of" from the paragraph where it does not belong. The text of the paragraph is revised to change "comply with of Part 265" to "comply with Part 265".c. Revising paragraphs (b)(8)(iv)(A) and (B) to replace the internal cross reference to paragraph (a)(8)(ii) of this section to the correct citation: paragraph (b)(8)(ii) of this section.10) Section 262.17 is amended by: a. Revising paragraph (a)(7)(i)(A) to make the internal cross reference more specific by including the fourth paragraph level. The correct cross reference is to § 262.17(a)(7)(iv)(C), which describes what elements must be included in a large quantity generator's (LQG) training program. This revision is also consistent with the cross referencing in § 265.16, which applied to LQGs before the Generator Improvements rule reorganization.b. Revising paragraph (a)(2) to replace the offsetting commas with a set of parentheses to ensure clarity about which requirements apply to LQGs that accumulate hazardous waste in tanks.11) Section 262.42 is amended by renumbering paragraphs (a), (b) (c) and (d) as (a)(1), (a)(2), (b), and (c). Paragraphs (a)(1), (a)(2) and (b) are also revised to replace descriptions of generator categories (e.g., "generators of 1000 kilograms or greater of hazardous waste in a calendar month") with either "small quantity generator" or "large quantity generator", which were terms promulgated and/or updated in the 2016 Generator Improvements rule.12) Revising § 262.82(e)(2) to update the current address for hand deliveries of submittals required in Part 262, Subpart H, for transboundary movements of hazardous waste for recovery or disposal.13) Revising § 264.1(g)(3) to add generators that are accumulating waste on site in compliance with the generator standards in Subpart L of Part 262 to the list of compliant generators to which Part 264 does not apply.14) Revising § 264.72(a)(3) to include a reference to the new empty container standards in § 267.507 that were added as a component of Part 267 Subpart P (Hazardous Waste Pharmaceuticals).15) Revising § 264.340(d)(3) (the state analog to 40 CFR 266.100(c)(3)) to replace the term "special requirements" with "conditions for exemption"; and to replace an outdated reference to § 262.13 with the updated correct reference to § 262.14.16) Revising § 265.72(a)(3) to include a reference to the new empty container standards in § 267.507 that were added as a component of Part 267 Subpart P (Hazardous Waste Pharmaceuticals).17) Amending § 267.502 by:a. revising paragraph (d)(4) to add a parenthetical with a reference to the complete list of metal-bearing waste codes in Appendix XI to Part 268, and adding a second parenthetical to reference Appendix IV to Part 268 following the new language about the lab pack prohibition. This second parenthetical is being added to clarify that non-creditable hazardous waste pharmaceuticals that are prohibited from being lab packed for incineration must accumulated in separate containers at health care facilities..b. revising the procedures for healthcare facilities managing rejected shipments of non-creditable hazardous waste pharmaceuticals in § 267.502(h) to replace the word "returned" with "rejected" in two places, and to remove the words "or returned" from a third place.c. adding the word "calendar" to modify the word "days" in the following five citations in section 267.502: § 267.502(h); § 267.502(h)(3); § 267.502(h)(4); § 267.502(i)(2)(i)(A); and § 267.502(i)(2)(ii)(A).18) Revising § 267.503(b)(1) to add the same parenthetical with the definition of "control" that appears in § 267.502(l)(1), which states: "("control," for the purposes of this section, means the power to direct the policies of the healthcare facility, whether by the ownership of stock voting rights, or otherwise, except that contractors who operate healthcare facilities on behalf of a different person as defined in § 260.10 of these regulations shall not be deemed to "control" such healthcare facilities).."19) Amending § 267.504 by:a. revising the heading of section 267.504 to add "that are not operating under this subpart"b. revising paragraph (b) to correct the spelling of "off site", and to replace the term "healthcare facility" with the word "generator" toward the end of the paragraph.20) Amending § 267.505 (Prohibition of sewering hazardous waste pharmaceuticals) by: a. revising the title of the section to "Prohibition on sewering hazardous waste pharmaceuticals"b. revising the citation "40 CFR § 403.5(b)(1)" to "40 CFR § 403.5(b)" in the last sentence of the section. This amendment is being made to clarify that healthcare facilities and reverse distributors remain subject to all the prohibitions in CFR § 403.5(b), not just the prohibition in CFR § 403.5(b)(1).21) Section 267.506 is amended by: a. revising the title of § 267.506 to remove the reference to take-back event or program, and to add the phrase "by an authorized collector".b. revising paragraph (a)(2) to remove the reference to take-back event or program.c. adding "; or" to the end of subparagraphs (b)(3)(iii) and (b)(3)(iv).22) Section 267.507 (Residues of hazardous waste pharmaceuticals in empty containers) is amended by: a. revising paragraph b (Syringes), paragraph c (Intravenous (IV) bags), and paragraph d (Other containers, including delivery devices) to clarify that the requirements apply to healthcare facilities operating under the Subpart P (Hazardous Waste Pharmaceuticals) requirements in Part 267 of the regulations.b. revising the language in paragraph c (Intravenous (IV) bags) to clarify when an IV bag is considered RCRA empty.23) Section 267.508 (Standards for shipping non-creditable hazardous waste pharmaceuticals from a healthcare facility or evaluated hazardous waste pharmaceuticals from a reverse distributor) is being amended by:a. Revising paragraph (a)(1)(iii)(C) to insert the noun "tag" following the phrase "radio frequency identification".b. Revising paragraphs (a)(1)(iii)(C) and (a)(2)(i) to use consistent language when referring to EPA hazardous waste numbers, and to consistently reflect that EPA hazardous waste are often referred to as hazardous waste codes. The regulatory language is being revised to read, "...applicable EPA Hazardous Waste Numbers (i.e., hazardous waste codes)."24) Section 267.510 is amended by:a. revising paragraph (a)(9)(i)(C) to by adding the parenthetical "(or other entity)" after healthcare facility, to reflect the possibility that a reverse distributor could wrongly receive a shipment from another entity that includes unauthorized waste.b. revising paragraph (c)(4)(vi) to replace the example in the parenthetical with a reference to the complete list of metal-bearing waste codes in Appendix XI to Part 268, and adding a second parenthetical to reference Appendix IV to Part 268 following the new language about the lab pack prohibition. This second parenthetical is being added to clarify that evaluated hazardous waste pharmaceuticals that are prohibited from being lab packed for incineration must be accumulated in separate containers at reverse distributors.c. revising paragraph (c)(5) to add a cross-reference to the lab marking exception in section 267.508(a)(1)(iii)(C). Specifically, the paragraph allows that lab packs that will be incinerated in compliance with section 268.42(c) are not required to be marked with EPA hazardous waste numbers, except D004, D005, D006, D007, D008, D010, and D011, where applicable.d. revising paragraph (c)(5) to use consistent language when referring to EPA hazardous waste numbers, and to consistently reflect that EPA hazardous waste are often referred to as hazardous waste codes. The regulatory language is being revised to read, "...applicable EPA Hazardous Waste Numbers (i.e., hazardous waste codes)."e. revising the procedures for reverse distributors managing rejected shipments in § 267.510(c)(7) to replace the word "returned" with "rejected" in two places, and to remove the words "or returned" from a third place.f. adding the word "calendar" to modify the word "days" in the following 10 citations in § 267.510: (§ 267.510(b)(1); § 267.510(b)(2); § 267.510(c)(2); § 267.510(c)(7); § 267.510(c)(7)(iii); § 267.510(c)(7)(iv); § 267.510(c)(9)(ii)(A)(1); § 267.510(c)(9)(ii)(A)(2); § 267.510(c)(9)(ii)(B)(1); and § 267.510(c)(9)(ii)(B)(2). These amendments are considered to be neither more nor less stringent than the current standards, and Colorado is not required to modify its program to adopt these technical corrections. However, the Department feels that adoption of these technical corrections will help avoid any confusion or misunderstanding by the regulated community and the public.
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 89 FR 54086-54115, August 9, 2023; and amended at 89 FR 84710-84713, December 6, 2023.
47 CR 18, September 25, 2024, effective 10/15/2024