[Code of Federal Regulations] [Title 40, Volume 23] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 40CFR261.3] [Page 33-38] TITLE 40--PROTECTION OF ENVIRONMENT CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED) PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE--Table of Contents Subpart A--General Sec. 261.3 Definition of hazardous waste. (a) A solid waste, as defined in Sec. 261.2, is a hazardous waste if: (1) It is not excluded from regulation as a hazardous waste under Sec. 261.4(b); and (2) It meets any of the following criteria: (i) It exhibits any of the characteristics of hazardous waste identified in subpart C of this part. However, any mixture of a waste from the extraction, beneficiation, and processing of ores and minerals excluded under Sec. 261.4(b)(7) and any other solid waste [[Page 34]] exhibiting a characteristic of hazardous waste under subpart C is a hazardous waste only if it exhibits a characteristic that would not have been exhibited by the excluded waste alone if such mixture had not occurred, or if it continues to exhibit any of the characteristics exhibited by the non-excluded wastes prior to mixture. Further, for the purposes of applying the Toxicity Characteristic to such mixtures, the mixture is also a hazardous waste if it exceeds the maximum concentration for any contaminant listed in table I to Sec. 261.24 that would not have been exceeded by the excluded waste alone if the mixture had not occurred or if it continues to exceed the maximum concentration for any contaminant exceeded by the nonexempt waste prior to mixture. (ii) It is listed in subpart D of this part and has not been excluded from the lists in subpart D of this part under Secs. 260.20 and 260.22 of this chapter. (iii) [Reserved] (iv) It is a mixture of solid waste and one or more hazardous wastes listed in subpart D of this part and has not been excluded from paragraph (a)(2) of this section under Secs. 260.20 and 260.22, paragraph (g) of this section, or paragraph (h) of this section; however, the following mixtures of solid wastes and hazardous wastes listed in subpart D of this part are not hazardous wastes (except by application of paragraph (a)(2)(i) or (ii) of this section) if the generator can demonstrate that the mixture consists of wastewater the discharge of which is subject to regulation under either section 402 or section 307(b) of the Clean Water Act (including wastewater at facilities which have eliminated the discharge of wastewater) and; (A) One or more of the following solvents listed in Sec. 261.31--carbon tetrachloride, tetrachloroethylene, trichloroethylene--Provided, That the maximum total weekly usage of these solvents (other than the amounts that can be demonstrated not to be discharged to wastewater) divided by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pretreatment system does not exceed 1 part per million; or (B) One or more of the following spent solvents listed in Sec. 261.31-- methylene chloride, 1,1,1-trichloroethane, chlorobenzene, o- dichlorobenzene, cresols, cresylic acid, nitrobenzene, toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, spent chlorofluorocarbon solvents--provided that the maximum total weekly usage of these solvents (other than the amounts that can be demonstrated not to be discharged to wastewater) divided by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pretreatment system does not exceed 25 parts per million; or (C) One of the following wastes listed in Sec. 261.32, provided that the wastes are discharged to the refinery oil recovery sewer before primary oil/water/solids separation--heat exchanger bundle cleaning sludge from the petroleum refining industry (EPA Hazardous Waste No. K050), crude oil storage tank sediment from petroleum refining operations (EPA Hazardous Waste No. K169), clarified slurry oil tank sediment and/or in-line filter/separation solids from petroleum refining operations (EPA Hazardous Waste No. K170), spent hydrotreating catalyst(EPA Hazardous Waste No. K171), and spent hydrorefining catalyst (EPA Hazardous Waste No. K172); or (D) A discarded commercial chemical product, or chemical intermediate listed in Sec. 261.33, arising from de minimis losses of these materials from manufacturing operations in which these materials are used as raw materials or are produced in the manufacturing process. For purposes of this paragraph (a)(2)(iv)(D), ``de minimis'' losses include those from normal material handling operations (e.g., spills from the unloading or transfer of materials from bins or other containers, leaks from pipes, valves or other devices used to transfer materials); minor leaks of process equipment, storage tanks or containers; leaks from well maintained pump packings and seals; sample purgings; relief device discharges; discharges from safety showers and rinsing and cleaning of personal safety equipment; and rinsate from empty containers or from containers that are rendered empty by that rinsing; or [[Page 35]] (E) Wastewater resulting from laboratory operations containing toxic (T) wastes listed in subpart D of this part, Provided, That the annualized average flow of laboratory wastewater does not exceed one percent of total wastewater flow into the headworks of the facility's wastewater treatment or pre-treatment system or provided the wastes, combined annualized average concentration does not exceed one part per million in the headworks of the facility's wastewater treatment or pre- treatment facility. Toxic (T) wastes used in laboratories that are demonstrated not to be discharged to wastewater are not to be included in this calculation; or (F) One or more of the following wastes listed in Sec. 261.32-- wastewaters from the production of carbamates and carbamoyl oximes (EPA Hazardous Waste No. K157)--Provided that the maximum weekly usage of formaldehyde, methyl chloride, methylene chloride, and triethylamine (including all amounts that can not be demonstrated to be reacted in the process, destroyed through treatment, or is recovered, i.e., what is discharged or volatilized) divided by the average weekly flow of process wastewater prior to any dilutions into the headworks of the facility's wastewater treatment system does not exceed a total of 5 parts per million by weight; or (G) Wastewaters derived from the treatment of one or more of the following wastes listed in Sec. 261.32--organic waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates) from the production of carbamates and carbamoyl oximes (EPA Hazardous Waste No. K156).--Provided, that the maximum concentration of formaldehyde, methyl chloride, methylene chloride, and triethylamine prior to any dilutions into the headworks of the facility's wastewater treatment system does not exceed a total of 5 milligrams per liter. (v) Rebuttable presumption for used oil. Used oil containing more than 1000 ppm total halogens is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in subpart D of part 261 of this chapter. Persons may rebut this presumption by demonstrating that the used oil does not contain hazardous waste (for example, by using an analytical method from SW-846, Third Edition, to show that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in appendix VIII of part 261 of this chapter). EPA Publication SW-846, Third Edition, is available for the cost of $110.00 from the Government Printing Office, Superintendent of Documents, PO Box 371954, Pittsburgh, PA 15250-7954. 202-512-1800 (document number 955-001-00000-1). (A) The rebuttable presumption does not apply to metalworking oils/ fluids containing chlorinated paraffins, if they are processed, through a tolling agreement, to reclaim metalworking oils/fluids. The presumption does apply to metalworking oils/fluids if such oils/fluids are recycled in any other manner, or disposed. (B) The rebuttable presumption does not apply to used oils contaminated with chlorofluorocarbons (CFCs) removed from refrigeration units where the CFCs are destined for reclamation. The rebuttable presumption does apply to used oils contaminated with CFCs that have been mixed with used oil from sources other than refrigeration units. (b) A solid waste which is not excluded from regulation under paragraph (a)(1) of this section becomes a hazardous waste when any of the following events occur: (1) In the case of a waste listed in subpart D of this part, when the waste first meets the listing description set forth in subpart D of this part. (2) In the case of a mixture of solid waste and one or more listed hazardous wastes, when a hazardous waste listed in subpart D is first added to the solid waste. (3) In the case of any other waste (including a waste mixture), when the waste exhibits any of the characteristics identified in subpart C of this part. (c) Unless and until it meets the criteria of paragraph (d) of this section: (1) A hazardous waste will remain a hazardous waste. (2)(i) Except as otherwise provided in paragraph (c)(2)(ii), (g) or (h) of this section, any solid waste generated from the treatment, storage, or disposal of a [[Page 36]] hazardous waste, including any sludge, spill residue, ash emission control dust, or leachate (but not including precipitation run-off) is a hazardous waste. (However, materials that are reclaimed from solid wastes and that are used beneficially are not solid wastes and hence are not hazardous wastes under this provision unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal.) (ii) The following solid wastes are not hazardous even though they are generated from the treatment, storage, or disposal of a hazardous waste, unless they exhibit one or more of the characteristics of hazardous waste: (A) Waste pickle liquor sludge generated by lime stabilization of spent pickle liquor from the iron and steel industry (SIC Codes 331 and 332). (B) Waste from burning any of the materials exempted from regulation by Sec. 261.6(a)(3)(iii) and (iv). (C)(1) Nonwastewater residues, such as slag, resulting from high temperature metals recovery (HTMR) processing of K061, K062 or F006 waste, in units identified as rotary kilns, flame reactors, electric furnaces, plasma arc furnaces, slag reactors, rotary hearth furnace/ electric furnace combinations or industrial furnaces (as defined in paragraphs (6), (7), and (13) of the definition for ``Industrial furnace'' in 40 CFR 260.10), that are disposed in subtitle D units, provided that these residues meet the generic exclusion levels identified in the tables in this paragraph for all constituents, and exhibit no characteristics of hazardous waste. Testing requirements must be incorporated in a facility's waste analysis plan or a generator's self-implementing waste analysis plan; at a minimum, composite samples of residues must be collected and analyzed quarterly and/or when the process or operation generating the waste changes. Persons claiming this exclusion in an enforcement action will have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements. ------------------------------------------------------------------------ Maximum for any single Constituent composite sample--TCLP (mg/l) ------------------------------------------------------------------------ Generic exclusion levels for K061 and K062 nonwastewater HTMR residues ------------------------------------------------------------------------ Antimony............................................... 0.10 Arsenic................................................ 0.50 Barium................................................. 7.6 Beryllium.............................................. 0.010 Cadmium................................................ 0.050 Chromium (total)....................................... 0.33 Lead................................................... 0.15 Mercury................................................ 0.009 Nickel................................................. 1.0 Selenium............................................... 0.16 Silver................................................. 0.30 Thallium............................................... 0.020 Zinc................................................... 70 ------------------------------------------------------------------------ Generic exclusion levels for F006 nonwastewater HTMR residues ------------------------------------------------------------------------ Antimony............................................... 0.10 Arsenic................................................ 0.50 Barium................................................. 7.6 Beryllium.............................................. 0.010 Cadmium................................................ 0.050 Chromium (total)....................................... 0.33 Cyanide (total) (mg/kg)................................ 1.8 Lead................................................... 0.15 Mercury................................................ 0.009 Nickel................................................. 1.0 Selenium............................................... 0.16 Silver................................................. 0.30 Thallium............................................... 0.020 Zinc................................................... 70 ------------------------------------------------------------------------ (2) A one-time notification and certification must be placed in the facility's files and sent to the EPA region or authorized state for K061, K062 or F006 HTMR residues that meet the generic exclusion levels for all constituents and do not exhibit any characteristics that are sent to subtitle D units. The notification and certification that is placed in the generators or treaters files must be updated if the process or operation generating the waste changes and/or if the subtitle D unit receiving the waste changes. However, the generator or treater need only notify the EPA region or an authorized state on an annual basis if such changes occur. Such notification and certification should be sent to the EPA region or authorized state by the end of the calendar year, but no later than December 31. The notification must include the following information: The name and address of the subtitle D unit receiving the waste shipments; the EPA Hazardous Waste Number(s) and [[Page 37]] treatability group(s) at the initial point of generation; and, the treatment standards applicable to the waste at the initial point of generation. The certification must be signed by an authorized representative and must state as follows: ``I certify under penalty of law that the generic exclusion levels for all constituents have been met without impermissible dilution and that no characteristic of hazardous waste is exhibited. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.'' (D) Biological treatment sludge from the treatment of one of the following wastes listed in Sec. 261.32--organic waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates) from the production of carbamates and carbamoyl oximes (EPA Hazardous Waste No. K156), and wastewaters from the production of carbamates and carbamoyl oximes (EPA Hazardous Waste No. K157). (E) Catalyst inert support media separated from one of the following wastes listed in Sec. 261.32--Spent hydrotreating catalyst (EPA Hazardous Waste No. K171), and Spent hydrorefining catalyst (EPA Hazardous Waste No. K172). (d) Any solid waste described in paragraph (c) of this section is not a hazardous waste if it meets the following criteria: (1) In the case of any solid waste, it does not exhibit any of the characteristics of hazardous waste identified in subpart C of this part. (However, wastes that exhibit a characteristic at the point of generation may still be subject to the requirements of part 268, even if they no longer exhibit a characteristic at the point of land disposal.) (2) In the case of a waste which is a listed waste under subpart D of this part, contains a waste listed under subpart D of this part or is derived from a waste listed in subpart D of this part, it also has been excluded from paragraph (c) of this section under Secs. 260.20 and 260.22 of this chapter. (e) [Reserved] (f) Notwithstanding paragraphs (a) through (d) of this section and provided the debris as defined in part 268 of this chapter does not exhibit a characteristic identified at subpart C of this part, the following materials are not subject to regulation under 40 CFR parts 260, 261 to 266, 268, or 270: (1) Hazardous debris as defined in part 268 of this chapter that has been treated using one of the required extraction or destruction technologies specified in Table 1 of Sec. 268.45 of this chapter; persons claiming this exclusion in an enforcement action will have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements; or (2) Debris as defined in part 268 of this chapter that the Regional Administrator, considering the extent of contamination, has determined is no longer contaminated with hazardous waste. (g)(1) A hazardous waste that is listed in subpart D of this part solely because it exhibits one or more characteristics of ignitability as defined under Sec. 261.21, corrosivity as defined under Sec. 261.22, or reactivity as defined under Sec. 261.23 is not a hazardous waste, if the waste no longer exhibits any characteristic of hazardous waste identified in subpart C of this part. (2) The exclusion described in paragraph (g)(1) of this section also pertains to: (i) Any mixture of a solid waste and a hazardous waste listed in subpart D of this part solely because it exhibits the characteristics of ignitability, corrosivity, or reactivity as regulated under paragraph (a)(2)(iv) of this section; and (ii) Any solid waste generated from treating, storing, or disposing of a hazardous waste listed in subpart D of this part solely because it exhibits the characteristics of ignitability, corrosivity, or reactivity as regulated under paragraph (c)(2)(i) of this section. (3) Wastes excluded under this section are subject to part 268 of this chapter (as applicable), even if they no longer exhibit a characteristic at the point of land disposal. (4) any mixture of a solid waste excluded from regulation under Sec. 261.4(b)(7) and a hazardous waste listed in subpart D of this part solely because it exhibits one or more of the characteristics of ignitability, [[Page 38]] corrosivity, or reactivity as regulated under paragraph (a)(2)(iv) of this section is not a hazardous waste, if the mixture no longer exhibits any characteristic of hazardous waste identified in subpart C of this part for which the hazardous waste listed in subpart D of this part was listed. (h)(1) Hazardous waste containing radioactive waste is no longer a hazardous waste when it meets the eligibility criteria and conditions of 40 CFR part 266, Subpart N (``eligible radioactive mixed waste''). (2) The exemption described in paragraph (h)(1) of this section also pertains to: (i) Any mixture of a solid waste and an eligible radioactive mixed waste; and (ii) Any solid waste generated from treating, storing, or disposing of an eligible radioactive mixed waste. (3) Waste exempted under this section must meet the eligibility criteria and specified conditions in 40 CFR 266.225 and 40 CFR 266.230 (for storage and treatment) and in 40 CFR 266.310 and 40 CFR 266.315 (for transportation and disposal). Waste that fails to satisfy these eligibility criteria and conditions is regulated as hazardous waste. [57 FR 7632, Mar. 3, 1992; 57 FR 23063, June 1, 1992, as amended at 57 FR 37263, Aug. 18, 1992; 57 FR 41611, Sept. 10, 1992; 57 FR 49279, Oct. 30, 1992; 59 FR 38545, July 28, 1994; 60 FR 7848, Feb. 9, 1995; 63 FR 28637, May 26, 1998; 63 FR 42184, Aug. 6, 1998; 66 FR 27297, May 16, 2001; 66 FR 50333, Oct. 3, 2001]