DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

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

6 CCR 1007-3

hazardous waste

Legitimate Recycling Amendments

1) The definition of “reclaimed” in § 261.1(d)(4) is amended to read as follows:
§ 261.1  Purpose and Scope.
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 (d)(4)  A material is “reclaimed” if it is processed to recover a useable product, or if it is regenerated.  Examples are recovery of lead values from spent batteries and regeneration of spent solvents. A process that does not produce either an intermediate which is fed directly into a manufacturing process, or a useable product, is considered treatment and must be conducted in accordance with: 
(i)  The applicable treatment requirements of § 100.21(d);
(ii)  The testing, tracking, and recordkeeping requirements of § 268.7;
(iii)  The permit requirements under § 100.10; or
(iv)  A permit issued by the Department.
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2) Paragraph (f) of § 261.2 is amended 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, In 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.
(2)  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.
i.  The material provides a useful contribution if it:
A.  Contributes valuable ingredients to a product or intermediate; or
B.  Replaces a catalyst or carrier in the recycling process; or
C.   Is the source of a valuable constituent recovered in the recycling process; or
D.  Is recovered or regenerated by the recycling process; or
E.  Is used as an effective substitute for a commercial product.
ii. The product or intermediate is valuable if it is:
A.  Sold to a third party; or
B.   Used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process.
iii.  The generator and the recycler must manage the material as a valuable commodity. Where there is an analogous raw material, the material must be managed, at a minimum, in a manner consistent with the management of the raw material. Where there is no analogous raw material, the material must be contained.  Materials that are released to the environment and are not recovered immediately are discarded.
iv.  The product of the recycling process must not:
A.  Contain significant concentrations of any hazardous constituents found in Appendix VIII of part 261 that are not found in analogous products; or
B.   Contain concentrations of any hazardous constituents found in Appendix VIII of part 261 at levels that are significantly elevated from those found in analogous products; or
C.   Exhibit a hazardous characteristic (as defined in part 261 subpart C) that analogous products do not exhibit.

3) Section 8.72 {Statement of Basis and Purpose for the Rulemaking Hearing of November 17, 2009} is added to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of November 17, 2009

8.72 	Basis and Purpose.
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 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:
1)	modifying the definition of  “reclaimed” in  § 261.1(d)(4); and
2)	codifying the criteria to be used in determining when recycling of materials is legitimate into § 261.2(f).
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:
1)	The material provides a useful contribution to the recycling process or to a product or intermediate of the recycling process, and the recycling process produces a valuable product or intermediate;
2)	The recycling process yields a valuable product or intermediate that is:
a.	Sold to a third party; or
b.	Used by the recycler or the generator as an effective substitute for a commercial product or as a useful ingredient or intermediate which is fed directly into a manufacturing process;
3)	The material to be recycled is managed as a valuable commodity; and
4)	The product of the recycling process: 
a.	Does not contain significant concentrations of any hazardous waste constituents that are not found in analogous products;
b.	Does not contain significantly elevated levels of any hazardous constituents that are found in analogous products; and
c.	Does not exhibit a hazardous waste characteristic that analogous products do no exhibit.
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.