[Code of Federal Regulations]
[Title 40, Volume 24]
[Revised as of July 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR261.4]
[Page 38-52]
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. 261.4 Exclusions.
(a) Materials which are not solid wastes. The following materials
are not solid wastes for the purpose of this part:
(1)(i) Domestic sewage; and
(ii) Any mixture of domestic sewage and other wastes that passes
through a sewer system to a publicly-owned treatment works for
treatment. ``Domestic sewage'' means untreated sanitary wastes that pass
through a sewer system.
(2) Industrial wastewater discharges that are point source
discharges subject to regulation under section 402 of the Clean Water
Act, as amended.
[Comment: This exclusion applies only to the actual point source
discharge. It does not exclude industrial wastewaters while they are
being collected, stored or treated before discharge, nor does it exclude
sludges that are generated by industrial wastewater treatment.]
(3) Irrigation return flows.
(4) Source, special nuclear or by-product material as defined by the
Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq.
(5) Materials subjected to in-situ mining techniques which are not
removed from the ground as part of the extraction process.
(6) Pulping liquors (i.e., black liquor) that are reclaimed in a
pulping liquor recovery furnace and then reused in the pulping process,
unless it is accumulated speculatively as defined in Sec. 261.1(c) of
this chapter.
(7) Spent sulfuric acid used to produce virgin sulfuric acid, unless
it is accumulated speculatively as defined in Sec. 261.1(c) of this
chapter.
(8) Secondary materials that are reclaimed and returned to the
original process or processes in which they were generated where they
are reused in the production process provided:
(i) Only tank storage is involved, and the entire process through
completion of reclamation is closed by being entirely connected with
pipes or other comparable enclosed means of conveyance;
(ii) Reclamation does not involve controlled flame combustion (such
as occurs in boilers, industrial furnaces, or incinerators);
(iii) The secondary materials are never accumulated in such tanks
for over twelve months without being reclaimed; and
(iv) The reclaimed material is not used to produce a fuel, or used
to produce products that are used in a manner constituting disposal.
(9)(i) Spent wood preserving solutions that have been reclaimed and
are reused for their original intended purpose; and
(ii) Wastewaters from the wood preserving process that have been
reclaimed and are reused to treat wood.
(iii) Prior to reuse, the wood preserving wastewaters and spent wood
preserving solutions described in paragraphs (a)(9)(i) and (a)(9)(ii) of
this section, so long as they meet all of the following conditions:
[[Page 39]]
(A) The wood preserving wastewaters and spent wood preserving
solutions are reused on-site at water borne plants in the production
process for their original intended purpose;
(B) Prior to reuse, the wastewaters and spent wood preserving
solutions are managed to prevent release to either land or groundwater
or both;
(C) Any unit used to manage wastewaters and/or spent wood preserving
solutions prior to reuse can be visually or otherwise determined to
prevent such releases;
(D) Any drip pad used to manage the wastewaters and/or spent wood
preserving solutions prior to reuse complies with the standards in part
265, subpart W of this chapter, regardless of whether the plant
generates a total of less than 100 kg/month of hazardous waste; and
(E) Prior to operating pursuant to this exclusion, the plant owner
or operator submits to the appropriate Regional Administrator or State
Director a one-time notification stating that the plant intends to claim
the exclusion, giving the date on which the plant intends to begin
operating under the exclusion, and containing the following language:
``I have read the applicable regulation establishing an exclusion for
wood preserving wastewaters and spent wood preserving solutions and
understand it requires me to comply at all times with the conditions set
out in the regulation.'' The plant must maintain a copy of that document
in its on-site records for a period of no less than 3 years from the
date specified in the notice. The exclusion applies only so long as the
plant meets all of the conditions. If the plant goes out of compliance
with any condition, it may apply to the appropriate Regional
Administrator or State Director for reinstatement. The Regional
Administrator or State Director may reinstate the exclusion upon finding
that the plant has returned to compliance with all conditions and that
violations are not likely to recur.
(10) EPA Hazardous Waste Nos. K060, K087, K141, K142, K143, K144,
K145, K147, and K148, and any wastes from the coke by-products processes
that are hazardous only because they exhibit the Toxicity Characteristic
(TC) specified in section 261.24 of this part when, subsequent to
generation, these materials are recycled to coke ovens, to the tar
recovery process as a feedstock to produce coal tar, or mixed with coal
tar prior to the tar's sale or refining. This exclusion is conditioned
on there being no land disposal of the wastes from the point they are
generated to the point they are recycled to coke ovens or tar recovery
or refining processes, or mixed with coal tar.
(11) Nonwastewater splash condenser dross residue from the treatment
of K061 in high temperature metals recovery units, provided it is
shipped in drums (if shipped) and not land disposed before recovery.
(12) (i) Oil-bearing hazardous secondary materials (i.e., sludges,
byproducts, or spent materials) that are generated at a petroleum
refinery (SIC code 2911) and are inserted into the petroleum refining
process (SIC code 2911--including, but not limited to, distillation,
catalytic cracking, fractionation, or thermal cracking units (i.e.,
cokers)) unless the material is placed on the land, or speculatively
accumulated before being so recycled. Materials inserted into thermal
cracking units are excluded under this paragraph, provided that the coke
product also does not exhibit a characteristic of hazardous waste. Oil-
bearing hazardous secondary materials may be inserted into the same
petroleum refinery where they are generated, or sent directly to another
petroleum refinery, and still be excluded under this provision. Except
as provided in paragraph (a)(12)(ii) of this section, oil-bearing
hazardous secondary materials generated elsewhere in the petroleum
industry (i.e., from sources other than petroleum refineries) are not
excluded under this section. Residuals generated from processing or
recycling materials excluded under this paragraph (a)(12)(i), where such
materials as generated would have otherwise met a listing under subpart
D of this part, are designated as F037 listed wastes when disposed of or
intended for disposal.
(ii) Recovered oil that is recycled in the same manner and with the
same conditions as described in paragraph (a)(12)(i) of this section.
Recovered oil
[[Page 40]]
is oil that has been reclaimed from secondary materials (including
wastewater) generated from normal petroleum industry practices,
including refining, exploration and production, bulk storage, and
transportation incident thereto (SIC codes 1311, 1321, 1381, 1382, 1389,
2911, 4612, 4613, 4922, 4923, 4789, 5171, and 5172.) Recovered oil does
not include oil-bearing hazardous wastes listed in subpart D of this
part; however, oil recovered from such wastes may be considered
recovered oil. Recovered oil does not include used oil as defined in 40
CFR 279.1.
(13) Excluded scrap metal (processed scrap metal, unprocessed home
scrap metal, and unprocessed prompt scrap metal) being recycled.
(14) Shredded circuit boards being recycled provided that they are:
(i) Stored in containers sufficient to prevent a release to the
environment prior to recovery; and
(ii) Free of mercury switches, mercury relays and nickel-cadmium
batteries and lithium batteries.
(15) Condensates derived from the overhead gases from kraft mill
steam strippers that are used to comply with 40 CFR 63.446(e). The
exemption applies only to combustion at the mill generating the
condensates.
(16) Comparable fuels or comparable syngas fuels (i.e., comparable/
syngas fuels) that meet the requirements of Sec. 261.38.
(17) Spent materials (as defined in Sec. 261.1) (other than
hazardous wastes listed in subpart D of this part) generated within the
primary mineral processing industry from which minerals, acids, cyanide,
water, or other values are recovered by mineral processing or by
beneficiation, provided that:
(i) The spent material is legitimately recycled to recover minerals,
acids, cyanide, water or other values;
(ii) The spent material is not accumulated speculatively;
(iii) Except as provided in paragraph (a)(17)(iv) of this section,
the spent material is stored in tanks, containers, or buildings meeting
the following minimum integrity standards: a building must be an
engineered structure with a floor, walls, and a roof all of which are
made of non-earthen materials providing structural support (except
smelter buildings may have partially earthen floors provided the
secondary material is stored on the non-earthen portion), and have a
roof suitable for diverting rainwater away from the foundation; a tank
must be free standing, not be a surface impoundment (as defined in 40
CFR 260.10), and be manufactured of a material suitable for containment
of its contents; a container must be free standing and be manufactured
of a material suitable for containment of its contents. If tanks or
containers contain any particulate which may be subject to wind
dispersal, the owner/operator must operate these units in a manner which
controls fugitive dust. Tanks, containers, and buildings must be
designed, constructed and operated to prevent significant releases to
the environment of these materials.
(iv) The Regional Administrator or State Director may make a site-
specific determination, after public review and comment, that only solid
mineral processing spent material may be placed on pads rather than
tanks containers, or buildings. Solid mineral processing spent materials
do not contain any free liquid. The decision-maker must affirm that pads
are designed, constructed and operated to prevent significant releases
of the secondary material into the environment. Pads must provide the
same degree of containment afforded by the non-RCRA tanks, containers
and buildings eligible for exclusion.
(A) The decision-maker must also consider if storage on pads poses
the potential for significant releases via groundwater, surface water,
and air exposure pathways. Factors to be considered for assessing the
groundwater, surface water, air exposure pathways are: The volume and
physical and chemical properties of the secondary material, including
its potential for migration off the pad; the potential for human or
environmental exposure to hazardous constituents migrating from the pad
via each exposure pathway, and the possibility and extent of harm to
human and environmental receptors via each exposure pathway.
(B) Pads must meet the following minimum standards: Be designed of
[[Page 41]]
non-earthen material that is compatible with the chemical nature of the
mineral processing spent material, capable of withstanding physical
stresses associated with placement and removal, have run on/runoff
controls, be operated in a manner which controls fugitive dust, and have
integrity assurance through inspections and maintenance programs.
(C) Before making a determination under this paragraph, the Regional
Administrator or State Director must provide notice and the opportunity
for comment to all persons potentially interested in the determination.
This can be accomplished by placing notice of this action in major local
newspapers, or broadcasting notice over local radio stations.
(v) The owner or operator provides notice to the Regional
Administrator or State Director providing the following information: The
types of materials to be recycled; the type and location of the storage
units and recycling processes; and the annual quantities expected to be
placed in land-based units. This notification must be updated when there
is a change in the type of materials recycled or the location of the
recycling process.
(vi) For purposes of paragraph (a)(7) of this section, mineral
processing spent materials must be the result of mineral processing and
may not include any listed hazardous wastes. Listed hazardous wastes and
characteristic hazardous wastes generated by non-mineral processing
industries are not eligible for the conditional exclusion from the
definition of solid waste.
(18) Petrochemical recovered oil from an associated organic chemical
manufacturing facility, where the oil is to be inserted into the
petroleum refining process (SIC code 2911) along with normal petroleum
refinery process streams, provided:
(i) The oil is hazardous only because it exhibits the characteristic
of ignitability (as defined in Sec. 261.21) and/or toxicity for benzene
(Sec. 261.24, waste code D018); and
(ii) The oil generated by the organic chemical manufacturing
facility is not placed on the land, or speculatively accumulated before
being recycled into the petroleum refining process. An ``associated
organic chemical manufacturing facility'' is a facility where the
primary SIC code is 2869, but where operations may also include SIC
codes 2821, 2822, and 2865; and is physically co-located with a
petroleum refinery; and where the petroleum refinery to which the oil
being recycled is returned also provides hydrocarbon feedstocks to the
organic chemical manufacturing facility. ``Petrochemical recovered oil''
is oil that has been reclaimed from secondary materials (i.e., sludges,
byproducts, or spent materials, including wastewater) from normal
organic chemical manufacturing operations, as well as oil recovered from
organic chemical manufacturing processes.
(19) Spent caustic solutions from petroleum refining liquid treating
processes used as a feedstock to produce cresylic or naphthenic acid
unless the material is placed on the land, or accumulated speculatively
as defined in Sec. 261.1(c).
(20) Hazardous secondary materials used to make zinc fertilizers,
provided that the following conditions specified are satisfied:
(i) Hazardous secondary materials used to make zinc micronutrient
fertilizers must not be accumulated speculatively, as defined in Sec.
261.1 (c)(8).
(ii) Generators and intermediate handlers of zinc-bearing hazardous
secondary materials that are to be incorporated into zinc fertilizers
must:
(A) Submit a one-time notice to the Regional Administrator or State
Director in whose jurisdiction the exclusion is being claimed, which
contains the name, address and EPA ID number of the generator or
intermediate handler facility, provides a brief description of the
secondary material that will be subject to the exclusion, and identifies
when the manufacturer intends to begin managing excluded, zinc-bearing
hazardous secondary materials under the conditions specified in this
paragraph (a)(20).
(B) Store the excluded secondary material in tanks, containers, or
buildings that are constructed and maintained in a way that prevents
releases of the secondary materials into the environment. At a minimum,
any building
[[Page 42]]
used for this purpose must be an engineered structure made of non-
earthen materials that provide structural support, and must have a
floor, walls and a roof that prevent wind dispersal and contact with
rainwater. Tanks used for this purpose must be structurally sound and,
if outdoors, must have roofs or covers that prevent contact with wind
and rain. Containers used for this purpose must be kept closed except
when it is necessary to add or remove material, and must be in sound
condition. Containers that are stored outdoors must be managed within
storage areas that:
(1) Have containment structures or systems sufficiently impervious
to contain leaks, spills and accumulated precipitation; and
(2) Provide for effective drainage and removal of leaks, spills and
accumulated precipitation; and
(3) Prevent run-on into the containment system.
(C) With each off-site shipment of excluded hazardous secondary
materials, provide written notice to the receiving facility that the
material is subject to the conditions of this paragraph (a)(20).
(D) Maintain at the generator's or intermediate handlers's facility
for no less than three years records of all shipments of excluded
hazardous secondary materials. For each shipment these records must at a
minimum contain the following information:
(1) Name of the transporter and date of the shipment;
(2) Name and address of the facility that received the excluded
material, and documentation confirming receipt of the shipment; and
(3) Type and quantity of excluded secondary material in each
shipment.
(iii) Manufacturers of zinc fertilizers or zinc fertilizer
ingredients made from excluded hazardous secondary materials must:
(A) Store excluded hazardous secondary materials in accordance with
the storage requirements for generators and intermediate handlers, as
specified in paragraph (a)(20)(ii)(B) of this section.
(B) Submit a one-time notification to the Regional Administrator or
State Director that, at a minimum, specifies the name, address and EPA
ID number of the manufacturing facility, and identifies when the
manufacturer intends to begin managing excluded, zinc-bearing hazardous
secondary materials under the conditions specified in this paragraph
(a)(20).
(C) Maintain for a minimum of three years records of all shipments
of excluded hazardous secondary materials received by the manufacturer,
which must at a minimum identify for each shipment the name and address
of the generating facility, name of transporter and date the materials
were received, the quantity received, and a brief description of the
industrial process that generated the material.
(D) Submit to the Regional Administrator or State Director an annual
report that identifies the total quantities of all excluded hazardous
secondary materials that were used to manufacture zinc fertilizers or
zinc fertilizer ingredients in the previous year, the name and address
of each generating facility, and the industrial process(s) from which
they were generated.
(iv) Nothing in this section preempts, overrides or otherwise
negates the provision in Sec. 262.11 of this chapter, which requires
any person who generates a solid waste to determine if that waste is a
hazardous waste.
(v) Interim status and permitted storage units that have been used
to store only zinc-bearing hazardous wastes prior to the submission of
the one-time notice described inparagraph (a)(20)(ii)(A) of this
section, and that afterward will be used only to store hazardous
secondary materials excluded under this paragraph, are not subject to
the closure requirements of 40 CFR Parts 264 and 265.
(21) Zinc fertilizers made from hazardous wastes, or hazardous
secondary materials that are excluded under paragraph (a)(20) of this
section, provided that:
(i) The fertilizers meet the following contaminant limits:
(A) For metal contaminants:
[[Page 43]]
------------------------------------------------------------------------
Maximum
Allowable
Total
Concentration
Constituent in
Fertilizer,
per Unit (1%)
of Zinc (ppm)
------------------------------------------------------------------------
Arsenic.................................................. 0.3
Cadmium.................................................. 1.4
Chromium................................................. 0.6
Lead..................................................... 2.8
Mercury.................................................. 0.3
------------------------------------------------------------------------
(B) For dioxin contaminants the fertilizer must contain no more than
eight (8) parts per trillion of dioxin, measured as toxic equivalent
(TEQ).
(ii) The manufacturer performs sampling and analysis of the
fertilizer product to determine compliance with the contaminant limits
for metals no less than every six months, and for dioxins no less than
every twelve months. Testing must also be performed whenever changes
occur to manufacturing processes or ingredients that could significantly
affect the amounts of contaminants in the fertilizer product. The
manufacturer may use any reliable analytical method to demonstrate that
no constituent of concern is present in the product at concentrations
above the applicable limits. It is the responsibility of the
manufacturer to ensure that the sampling and analysis are unbiased,
precise, and representative of the product(s) introduced into commerce.
(iii) The manufacturer maintains for no less than three years
records of all sampling and analyses performed for purposes of
determining compliance with the requirements of paragraph (a)(21)(ii) of
this section. Such records must at a minimum include:
(A) The dates and times product samples were taken, and the dates
the samples were analyzed;
(B) The names and qualifications of the person(s) taking the
samples;
(C) A description of the methods and equipment used to take the
samples;
(D) The name and address of the laboratory facility at which
analyses of the samples were performed;
(E) A description of the analytical methods used, including any
cleanup and sample preparation methods; and
(F) All laboratory analytical results used to determine compliance
with the contaminant limits specified in this paragraph (a)(21).
(b) Solid wastes which are not hazardous wastes. The following solid
wastes are not hazardous wastes:
(1) Household waste, including household waste that has been
collected, transported, stored, treated, disposed, recovered (e.g.,
refuse-derived fuel) or reused. ``Household waste'' means any material
(including garbage, trash and sanitary wastes in septic tanks) derived
from households (including single and multiple residences, hotels and
motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic
grounds and day-use recreation areas). A resource recovery facility
managing municipal solid waste shall not be deemed to be treating,
storing, disposing of, or otherwise managing hazardous wastes for the
purposes of regulation under this subtitle, if such facility:
(i) Receives and burns only
(A) Household waste (from single and multiple dwellings, hotels,
motels, and other residential sources) and
(B) Solid waste from commercial or industrial sources that does not
contain hazardous waste; and
(ii) Such facility does not accept hazardous wastes and the owner or
operator of such facility has established contractual requirements or
other appropriate notification or inspection procedures to assure that
hazardous wastes are not received at or burned in such facility.
(2) Solid wastes generated by any of the following and which are
returned to the soils as fertilizers:
(i) The growing and harvesting of agricultural crops.
(ii) The raising of animals, including animal manures.
(3) Mining overburden returned to the mine site.
(4) Fly ash waste, bottom ash waste, slag waste, and flue gas
emission control waste, generated primarily from the combusion of coal
or other fossil fuels, except as provided by Sec. 266.112 of this
chapter for facilities that burn or process hazardous waste.
(5) Drilling fluids, produced waters, and other wastes associated
with the
[[Page 44]]
exploration, development, or production of crude oil, natural gas or
geothermal energy.
(6)(i) Wastes which fail the test for the Toxicity Characteristic
because chromium is present or are listed in subpart D due to the
presence of chromium, which do not fail the test for the Toxicity
Characteristic for any other constituent or are not listed due to the
presence of any other constituent, and which do not fail the test for
any other characteristic, if it is shown by a waste generator or by
waste generators that:
(A) The chromium in the waste is exclusively (or nearly exclusively)
trivalent chromium; and
(B) The waste is generated from an industrial process which uses
trivalent chromium exlcusively (or nearly exclusively) and the process
does not generate hexavalent chromium; and
(C) The waste is typically and frequently managed in non-oxidizing
environments.
(ii) Specific waste which meet the standard in paragraphs (b)(6)(i)
(A), (B), and (C) (so long as they do not fail the test for the toxicity
characteristic for any other constituent, and do not exhibit any other
characteristic) are:
(A) Chrome (blue) trimmings generated by the following subcategories
of the leather tanning and finishing industry; hair pulp/chrome tan/
retan/wet finish; hair save/chrome tan/retan/wet finish; retan/wet
finish; no beamhouse; through-the-blue; and shearling.
(B) Chrome (blue) shavings generated by the following subcategories
of the leather tanning and finishing industry: Hair pulp/chrome tan/
retan/wet finish; hair save/chrome tan/retan/wet finish; retan/wet
finish; no beamhouse; through-the-blue; and shearling.
(C) Buffing dust generated by the following subcategories of the
leather tanning and finishing industry; hair pulp/chrome tan/retan/wet
finish; hair save/chrome tan/retan/wet finish; retan/wet finish; no
beamhouse; through-the-blue.
(D) Sewer screenings generated by the following subcategories of the
leather tanning and finishing industry: Hair pulp/crome tan/retan/wet
finish; hair save/chrome tan/retan/wet finish; retan/wet finish; no
beamhouse; through-the-blue; and shearling.
(E) Wastewater treatment sludges generated by the following
subcategories of the leather tanning and finishing industry: Hair pulp/
chrome tan/retan/wet finish; hair save/chrome tan/retan/wet finish;
retan/wet finish; no beamhouse; through-the-blue; and shearling.
(F) Wastewater treatment sludes generated by the following
subcategories of the leather tanning and finishing industry: Hair pulp/
chrome tan/retan/wet finish; hair save/chrometan/retan/wet finish; and
through-the-blue.
(G) Waste scrap leather from the leather tanning industry, the shoe
manufacturing industry, and other leather product manufacturing
industries.
(H) Wastewater treatment sludges from the production of
TiO2 pigment using chromium-bearing ores by the chloride
process.
(7) Solid waste from the extraction, beneficiation, and processing
of ores and minerals (including coal, phosphate rock, and overburden
from the mining of uranium ore), except as provided by Sec. 266.112 of
this chapter for facilities that burn or process hazardous waste.
(i) For purposes of Sec. 261.4(b)(7) beneficiation of ores and
minerals is restricted to the following activities; crushing; grinding;
washing; dissolution; crystallization; filtration; sorting; sizing;
drying; sintering; pelletizing; briquetting; calcining to remove water
and/or carbon dioxide; roasting, autoclaving, and/or chlorination in
preparation for leaching (except where the roasting (and/or autoclaving
and/or chlorination)/leaching sequence produces a final or intermediate
product that does not undergo further beneficiation or processing);
gravity concentration; magnetic separation; electrostatic separation;
flotation; ion exchange; solvent extraction; electrowinning;
precipitation; amalgamation; and heap, dump, vat, tank, and in situ
leaching.
(ii) For the purposes of Sec. 261.4(b)(7), solid waste from the
processing of ores and minerals includes only the following wastes as
generated:
[[Page 45]]
(A) Slag from primary copper processing;
(B) Slag from primary lead processing;
(C) Red and brown muds from bauxite refining;
(D) Phosphogypsum from phosphoric acid production;
(E) Slag from elemental phosphorus production;
(F) Gasifier ash from coal gasification;
(G) Process wastewater from coal gasification;
(H) Calcium sulfate wastewater treatment plant sludge from primary
copper processing;
(I) Slag tailings from primary copper processing;
(J) Fluorogypsum from hydrofluoric acid production;
(K) Process wastewater from hydrofluoric acid production;
(L) Air pollution control dust/sludge from iron blast furnaces;
(M) Iron blast furnace slag;
(N) Treated residue from roasting/leaching of chrome ore;
(O) Process wastewater from primary magnesium processing by the
anhydrous process;
(P) Process wastewater from phosphoric acid production;
(Q) Basic oxygen furnace and open hearth furnace air pollution
control dust/sludge from carbon steel production;
(R) Basic oxygen furnace and open hearth furnace slag from carbon
steel production;
(S ) Chloride process waste solids from titanium tetrachloride
production;
(T) Slag from primary zinc processing.
(iii) A residue derived from co-processing mineral processing
secondary materials with normal beneficiation raw materials or with
normal mineral processing raw materials remains excluded under paragraph
(b) of this section if the owner or operator:
(A) Processes at least 50 percent by weight normal beneficiation raw
materials or normal mineral processing raw materials; and,
(B) Legitimately reclaims the secondary mineral processing
materials.
(8) Cement kiln dust waste, except as provided by Sec. 266.112 of
this chapter for facilities that burn or process hazardous waste.
(9) Solid waste which consists of discarded arsenical-treated wood
or wood products which fails the test for the Toxicity Characteristic
for Hazardous Waste Codes D004 through D017 and which is not a hazardous
waste for any other reason if the waste is generated by persons who
utilize the arsenical-treated wood and wood product for these materials'
intended end use.
(10) Petroleum-contaminated media and debris that fail the test for
the Toxicity Characteristic of Sec. 261.24 (Hazardous Waste Codes D018
through D043 only) and are subject to the corrective action regulations
under part 280 of this chapter.
(11) Injected groundwater that is hazardous only because it exhibits
the Toxicity Characteristic (Hazardous Waste Codes D018 through D043
only) in Sec. 261.24 of this part that is reinjected through an
underground injection well pursuant to free phase hydrocarbon recovery
operations undertaken at petroleum refineries, petroleum marketing
terminals, petroleum bulk plants, petroleum pipelines, and petroleum
transportation spill sites until January 25, 1993. This extension
applies to recovery operations in existence, or for which contracts have
been issued, on or before March 25, 1991. For groundwater returned
through infiltration galleries from such operations at petroleum
refineries, marketing terminals, and bulk plants, until [insert date six
months after publication]. New operations involving injection wells
(beginning after March 25, 1991) will qualify for this compliance date
extension (until January 25, 1993) only if:
(i) Operations are performed pursuant to a written state agreement
that includes a provision to assess the groundwater and the need for
further remediation once the free phase recovery is completed; and
(ii) A copy of the written agreement has been submitted to: Waste
Identification Branch (5304), U.S. Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460.
[[Page 46]]
(12) Used chlorofluorocarbon refrigerants from totally enclosed heat
transfer equipment, including mobile air conditioning systems, mobile
refrigeration, and commercial and industrial air conditioning and
refrigeration systems that use chlorofluorocarbons as the heat transfer
fluid in a refrigeration cycle, provided the refrigerant is reclaimed
for further use.
(13) Non-terne plated used oil filters that are not mixed with
wastes listed in subpart D of this part if these oil filters have been
gravity hot-drained using one of the following methods:
(i) Puncturing the filter anti-drain back valve or the filter dome
end and hot-draining;
(ii) Hot-draining and crushing;
(iii) Dismantling and hot-draining; or
(iv) Any other equivalent hot-draining method that will remove used
oil.
(14) Used oil re-refining distillation bottoms that are used as
feedstock to manufacture asphalt products.
(15) Leachate or gas condensate collected from landfills where
certain solid wastes have been disposed, provided that:
(i) The solid wastes disposed would meet one or more of the listing
descriptions for Hazardous Waste Codes K169, K170, K171, K172, K174,
K175, K176, K177, and K178, if these wastes had been generated after the
effective date of the listing;
(ii) The solid wastes described in paragraph (b)(15)(i) of this
section were disposed prior to the effective date of the listing:
(iii) The leachate or gas condensate do not exhibit any
characteristic of hazardous waste nor are derived from any other listed
hazardous waste;
(iv) Discharge of the leachate or gas condensate, including leachate
or gas condensate transferred from the landfill to a POTW by truck,
rail, or dedicated pipe, is subject to regulation under sections 307(b)
or 402 of the Clean Water Act.
(v) As of February 13, 2001, leachate or gas condensate derived from
K169-K172 is no longer exempt if it is stored or managed in a surface
impoundment prior to discharge. After November 21, 2003, leachate or gas
condensate derived from K176, K177, and K178 will no longer be exempt if
it is stored or managed in a surface impoundment prior to discharge.
There is one exception: if the surface impoundment is used to
temporarily store leachate or gas condensate in response to an emergency
situation (e.g., shutdown of wastewater treatment system), provided the
impoundment has a double liner, and provided the leachate or gas
condensate is removed from the impoundment and continues to be managed
in compliance with the conditions of this paragraph (b)(15)(v) after the
emergency ends.
(16) Sludges resulting from the treatment of wastewaters (not
including spent plating solutions) generated by the copper metallization
process at the International Business Machines Corporation (IBM)
semiconductor manufacturing facility in Essex Junction, VT, are exempt
from the F006 listing, provided that:
(i) IBM provides the Agency with semi-annual reports (by January 15
and July 15 of each year) detailing constituent analyses measuring the
concentrations of volatiles, semi-volatiles, and metals using methods
presented in part 264, appendix IX of this chapter of both the plating
solution utilized by, and the rinsewaters generated by, the copper
metallization process;
(ii) IBM provides the agency with semi-annual reports (by January 15
and July 15 of each year), through the year 2004, or when IBM has
achieved its facility-wide goal of a 40% reduction in greenhouse gas
emissions from a 1995 base year (when normalized to production),
whichever is first, that contain the following:
(A) Estimated greenhouse gas emissions, and estimated greenhouse gas
emission reductions. Greenhouse gas emissions will be reported in terms
of total mass emitted and mass emitted normalized to production; and
(B) The number of chemical vapor deposition chambers used in the
semiconductor manufacturing production line that have been converted to
either low flow C2F6 or NF3 during the
reporting period and the number of such chambers remaining to be
converted to achieve the facility goal for global warming gas emission
reductions.
(iii) No significant changes are made to the copper metallization
process such that any of the constituents listed
[[Page 47]]
in 40 CFR part 261, appendix VII as the basis for the F006 listing are
introduced into the process.
(17) [Reserved]
(18) By-products resulting from the production of automobile air bag
gas generants at the Autoliv ASP Inc. facility in Promontory Utah,
(Autoliv) are exempt from the D003 listing, for a period of five years
from May 9, 2001, provided that:
(i) The by-product gas generants are processed on-site in Autoliv's
Metal Recovery Furnace (MRF).
(A) By-product gas generants must only be fed to the MRF when it is
operating in conformance with the State of Utah, Division of Air
Quality's Approval Order DAQE-549-97.
(B) Combustion gas temperature must be maintained below 400 degrees
Fahrenheit at the baghouse inlet.
(ii) Prior to processing in the MRF, the by-product gas generants
are managed in accordance with the requirements specified in 40 CFR
262.34.
(iii) The Autoliv facility and the MRF are operated and managed in
accordance with the requirements of 40 CFR Part 265, Subparts B, C, D,
E, G, H, I, and O.
(iv) Residues derived from the processing of by-product gas
generants in the MRF are managed in accordance with the requirements
specified in 40 CFR Parts 262 and 268.
(v) The following testing of the MRF's stack gas emissions is
conducted:
(A) An initial test shall be conducted within 30 operating days of
starting feed of by-product gas generants to the MRF. EPA may extend
this deadline, at the request of Autoliv, when good cause is shown. The
initial test shall consist of three duplicate runs sampling for:
(1) Particulate matter using Method 5 as specified in 40 CFR Part
60, Appendix A.
(2) The metals Aluminum, Arsenic, Barium, Beryllium, Boron, Cadmium,
Chromium, Cobalt, Copper, Lead, and Nickel using Method 29 as specified
in 40 CFR Part 60, Appendix A.
(3) Polychlorinated di-benzo dioxins and furans using Method 23
0023A as specified in 40 CFR Part 60, Appendix A.
(4) Carbon monoxide using Method 10 as specified in 40 CFR Part 60,
Appendix A.
(B) After the initial test is completed, an annual stack test (12
months from the previous initial stack test) of the MRF shall be
conducted. The annual tests shall consist of three duplicate runs using
Method 29 and Method 5 as specified in 40 CFR Part 60, Appendix A.
(C) Testing shall be conducted while by-product gas generants are
fed to the MRF at no less than 90% of the planned maximum feed rate, and
with the MRF operating parameters within normal ranges.
(D) Initial stack testing results and additional project performance
data and information, including the quantity of by-product gas generants
processed and the operating parameter values during the test runs, will
be submitted by Autoliv to the State of Utah and EPA within 60 days of
the completion of the initial stack test.
(E) Annual stack test results and additional project performance
data and information, including the quantity of by-product gas generants
processed and the operating parameter values during the test runs, will
be submitted by Autoliv to EPA and the State of Utah within 60 days of
the completion of the annual test.
(vi) Combustion gas discharged to the atmosphere from the MRF meets
the following limits:
(A) Dioxin emissions do not exceed 0.4 ng per dry standard cubic
meter on a toxicity equivalent quotient (TEQ) basis corrected to 7%
Oxygen.
(B) Combined lead and cadmium emissions do not exceed 240 ug per dry
standard cubic meter corrected to 7% Oxygen.
(C) Combined arsenic, beryllium, and chromium emissions do not
exceed 97 ug per dry standard cubic meter corrected to 7% Oxygen.
(D) Particulate matter emissions do not exceed 34 mg per dry
standard cubic meter corrected to 7% Oxygen.
(E) If the limits specified in paragraphs (b)(18)(vi)(A) through (D)
of this section are exceeded, Autoliv shall discontinue feeding gas
generants to the MRF until such time as Autoliv can demonstrate to EPA
and the state of
[[Page 48]]
Utah satisfaction that the MRF combustion gas emissions can meet the
limits specified in paragraphs (b)(18)(vi) (A) through (D) of this
section
(vii) No by-product gas generants or other pyrotechnic wastes
generated off-site will be received at the Autoliv facility in
Promontory, Utah or processed in the MRF unless otherwise allowed by law
(permit or regulation).
(viii) Autoliv will provide EPA and the state of Utah with semi-
annual reports (by January 30 and July 30 of each year).
(A) The semi-annual reports will document the amounts of by-product
gas generants processed during the reporting period.
(B) The semi-annual reports will provide a summary of the MRF
Operating Record during the reporting period, including information on
by-product gas generant composition, average feed rates, upset
conditions, and spills or releases.
(ix) No significant changes are made to the operating parameter
production values of Autoliv's production of air bag gas generants such
that any of the constituents listed in appendix VIII of this part are
introduced into the process.
(x) Autoliv reports to the EPA any noncompliance which may endanger
health or the environment orally within 24 hours from the time Autoliv
becomes aware of the circumstances, including:
(A) Any information of a release, discharge, fire, or explosion from
the MRF, which could threaten the environment or human health.
(B) The description of the occurrence and its cause shall include:
(1) Name, address, and telephone number of the facility;
(2) Date, time, and type of incident;
(3) Name and quantity of material(s) involved;
(4) The extent of injuries, if any;
(5) An assessment of actual or potential hazards to the environment
and human health, and
(6) Estimated quantity and disposition of recovered material that
resulted from the incident.
(C) A written notice shall also be provided within five days of the
time Autoliv becomes aware of the circumstances. The written notice
shall contain a description of the non-compliance and its cause; the
period of noncompliance including exact dates and times, and if the
noncompliance has not been corrected, the anticipated time it is
expected to continue; and steps taken or planned to reduce, eliminate,
and prevent reoccurrence of the noncompliance. The EPA may waive the
five day written notice requirement in favor of a written report within
fifteen days.
(xi) Notifications and submissions made under paragraph (b)(18) of
this section shall be sent to the Regional Assistant Administrator for
the Office of Partnerships and Regulatory Assistance, U.S. EPA, Region 8
and the Executive Secretary of the Utah Solid and Hazardous Waste
Control Board.
(c) Hazardous wastes which are exempted from certain regulations. A
hazardous waste which is generated in a product or raw material storage
tank, a product or raw material transport vehicle or vessel, a product
or raw material pipeline, or in a manufacturing process unit or an
associated non-waste-treatment-manufacturing unit, is not subject to
regulation under parts 262 through 265, 268, 270, 271 and 124 of this
chapter or to the notification requirements of section 3010 of RCRA
until it exits the unit in which it was generated, unless the unit is a
surface impoundment, or unless the hazardous waste remains in the unit
more than 90 days after the unit ceases to be operated for
manufacturing, or for storage or transportation of product or raw
materials.
(d) Samples. (1) Except as provided in paragraph (d)(2) of this
section, a sample of solid waste or a sample of water, soil, or air,
which is collected for the sole purpose of testing to determine its
characteristics or composition, is not subject to any requirements of
this part or parts 262 through 268 or part 270 or part 124 of this
chapter or to the notification requirements of section 3010 of RCRA,
when:
(i) The sample is being transported to a laboratory for the purpose
of testing; or
[[Page 49]]
(ii) The sample is being transported back to the sample collector
after testing; or
(iii) The sample is being stored by the sample collector before
transport to a laboratory for testing; or
(iv) The sample is being stored in a laboratory before testing; or
(v) The sample is being stored in a laboratory after testing but
before it is returned to the sample collector; or
(vi) The sample is being stored temporarily in the laboratory after
testing for a specific purpose (for example, until conclusion of a court
case or enforcement action where further testing of the sample may be
necessary).
(2) In order to qualify for the exemption in paragraphs (d)(1) (i)
and (ii) of this section, a sample collector shipping samples to a
laboratory and a laboratory returning samples to a sample collector
must:
(i) Comply with U.S. Department of Transportation (DOT), U.S. Postal
Service (USPS), or any other applicable shipping requirements; or
(ii) Comply with the following requirements if the sample collector
determines that DOT, USPS, or other shipping requirements do not apply
to the shipment of the sample:
(A) Assure that the following information accompanies the sample:
(1) The sample collector's name, mailing address, and telephone
number;
(2) The laboratory's name, mailing address, and telephone number;
(3) The quantity of the sample;
(4) The date of shipment; and
(5) A description of the sample.
(B) Package the sample so that it does not leak, spill, or vaporize
from its packaging.
(3) This exemption does not apply if the laboratory determines that
the waste is hazardous but the laboratory is no longer meeting any of
the conditions stated in paragraph (d)(1) of this section.
(e) Treatability Study Samples. (1) Except as provided in paragraph
(e)(2) of this section, persons who generate or collect samples for the
purpose of conducting treatability studies as defined in section 260.10,
are not subject to any requirement of parts 261 through 263 of this
chapter or to the notification requirements of Section 3010 of RCRA, nor
are such samples included in the quantity determinations of Sec. 261.5
and Sec. 262.34(d) when:
(i) The sample is being collected and prepared for transportation by
the generator or sample collector; or
(ii) The sample is being accumulated or stored by the generator or
sample collector prior to transportation to a laboratory or testing
facility; or
(iii) The sample is being transported to the laboratory or testing
facility for the purpose of conducting a treatability study.
(2) The exemption in paragraph (e)(1) of this section is applicable
to samples of hazardous waste being collected and shipped for the
purpose of conducting treatability studies provided that:
(i) The generator or sample collector uses (in ``treatability
studies'') no more than 10,000 kg of media contaminated with non-acute
hazardous waste, 1000 kg of non-acute hazardous waste other than
contaminated media, 1 kg of acute hazardous waste, 2500 kg of media
contaminated with acute hazardous waste for each process being evaluated
for each generated waste stream; and
(ii) The mass of each sample shipment does not exceed 10,000 kg; the
10,000 kg quantity may be all media contaminated with non-acute
hazardous waste, or may include 2500 kg of media contaminated with acute
hazardous waste, 1000 kg of hazardous waste, and 1 kg of acute hazardous
waste; and
(iii) The sample must be packaged so that it will not leak, spill,
or vaporize from its packaging during shipment and the requirements of
paragraph A or B of this subparagraph are met.
(A) The transportation of each sample shipment complies with U.S.
Department of Transportation (DOT), U.S. Postal Service (USPS), or any
other applicable shipping requirements; or
(B) If the DOT, USPS, or other shipping requirements do not apply to
the shipment of the sample, the following information must accompany the
sample:
(1) The name, mailing address, and telephone number of the
originator of the sample;
[[Page 50]]
(2) The name, address, and telephone number of the facility that
will perform the treatability study;
(3) The quantity of the sample;
(4) The date of shipment; and
(5) A description of the sample, including its EPA Hazardous Waste
Number.
(iv) The sample is shipped to a laboratory or testing facility which
is exempt under Sec. 261.4(f) or has an appropriate RCRA permit or
interim status.
(v) The generator or sample collector maintains the following
records for a period ending 3 years after completion of the treatability
study:
(A) Copies of the shipping documents;
(B) A copy of the contract with the facility conducting the
treatability study;
(C) Documentation showing:
(1) The amount of waste shipped under this exemption;
(2) The name, address, and EPA identification number of the
laboratory or testing facility that received the waste;
(3) The date the shipment was made; and
(4) Whether or not unused samples and residues were returned to the
generator.
(vi) The generator reports the information required under paragraph
(e)(v)(C) of this section in its biennial report.
(3) The Regional Administrator may grant requests on a case-by-case
basis for up to an additional two years for treatability studies
involving bioremediation. The Regional Administrator may grant requests
on a case-by-case basis for quantity limits in excess of those specified
in paragraphs (e)(2) (i) and (ii) and (f)(4) of this section, for up to
an additional 5000 kg of media contaminated with non-acute hazardous
waste, 500 kg of non-acute hazardous waste, 2500 kg of media
contaminated with acute hazardous waste and 1 kg of acute hazardous
waste:
(i) In response to requests for authorization to ship, store and
conduct treatabilty studies on additional quantities in advance of
commencing treatability studies. Factors to be considered in reviewing
such requests include the nature of the technology, the type of process
(e.g., batch versus continuous), size of the unit undergoing testing
(particularly in relation to scale-up considerations), the time/quantity
of material required to reach steady state operating conditions, or test
design considerations such as mass balance calculations.
(ii) In response to requests for authorization to ship, store and
conduct treatability studies on additional quantities after initiation
or completion of initial treatability studies, when: There has been an
equipment or mechanical failure during the conduct of a treatability
study; there is a need to verify the results of a previously conducted
treatability study; there is a need to study and analyze alternative
techniques within a previously evaluated treatment process; or there is
a need to do further evaluation of an ongoing treatability study to
determine final specifications for treatment.
(iii) The additional quantities and timeframes allowed in paragraph
(e)(3) (i) and (ii) of this section are subject to all the provisions in
paragraphs (e) (1) and (e)(2) (iii) through (vi) of this section. The
generator or sample collector must apply to the Regional Administrator
in the Region where the sample is collected and provide in writing the
following information:
(A) The reason why the generator or sample collector requires
additional time or quantity of sample for treatability study evaluation
and the additional time or quantity needed;
(B) Documentation accounting for all samples of hazardous waste from
the waste stream which have been sent for or undergone treatability
studies including the date each previous sample from the waste stream
was shipped, the quantity of each previous shipment, the laboratory or
testing facility to which it was shipped, what treatability study
processes were conducted on each sample shipped, and the available
results on each treatability study;
(C) A description of the technical modifications or change in
specifications which will be evaluated and the expected results;
(D) If such further study is being required due to equipment or
mechanical failure, the applicant must include information regarding the
reason for the failure or breakdown and also include
[[Page 51]]
what procedures or equipment improvements have been made to protect
against further breakdowns; and
(E) Such other information that the Regional Administrator considers
necessary.
(f) Samples Undergoing Treatability Studies at Laboratories and
Testing Facilities. Samples undergoing treatability studies and the
laboratory or testing facility conducting such treatability studies (to
the extent such facilities are not otherwise subject to RCRA
requirements) are not subject to any requirement of this part, part 124,
parts 262-266, 268, and 270, or to the notification requirements of
Section 3010 of RCRA provided that the conditions of paragraphs (f) (1)
through (11) of this section are met. A mobile treatment unit (MTU) may
qualify as a testing facility subject to paragraphs (f) (1) through (11)
of this section. Where a group of MTUs are located at the same site, the
limitations specified in (f) (1) through (11) of this section apply to
the entire group of MTUs collectively as if the group were one MTU.
(1) No less than 45 days before conducting treatability studies, the
facility notifies the Regional Administrator, or State Director (if
located in an authorized State), in writing that it intends to conduct
treatability studies under this paragraph.
(2) The laboratory or testing facility conducting the treatability
study has an EPA identification number.
(3) No more than a total of 10,000 kg of ``as received'' media
contaminated with non-acute hazardous waste, 2500 kg of media
contaminated with acute hazardous waste or 250 kg of other ``as
received'' hazardous waste is subject to initiation of treatment in all
treatability studies in any single day. ``As received'' waste refers to
the waste as received in the shipment from the generator or sample
collector.
(4) The quantity of ``as received'' hazardous waste stored at the
facility for the purpose of evaluation in treatability studies does not
exceed 10,000 kg, the total of which can include 10,000 kg of media
contaminated with non-acute hazardous waste, 2500 kg of media
contaminated with acute hazardous waste, 1000 kg of non-acute hazardous
wastes other than contaminated media, and 1 kg of acute hazardous waste.
This quantity limitation does not include treatment materials (including
nonhazardous solid waste) added to ``as received'' hazardous waste.
(5) No more than 90 days have elapsed since the treatability study
for the sample was completed, or no more than one year (two years for
treatability studies involving bioremediation) have elapsed since the
generator or sample collector shipped the sample to the laboratory or
testing facility, whichever date first occurs. Up to 500 kg of treated
material from a particular waste stream from treatability studies may be
archived for future evaluation up to five years from the date of initial
receipt. Quantities of materials archived are counted against the total
storage limit for the facility.
(6) The treatability study does not involve the placement of
hazardous waste on the land or open burning of hazardous waste.
(7) The facility maintains records for 3 years following completion
of each study that show compliance with the treatment rate limits and
the storage time and quantity limits. The following specific information
must be included for each treatability study conducted:
(i) The name, address, and EPA identification number of the
generator or sample collector of each waste sample;
(ii) The date the shipment was received;
(iii) The quantity of waste accepted;
(iv) The quantity of ``as received'' waste in storage each day;
(v) The date the treatment study was initiated and the amount of
``as received'' waste introduced to treatment each day;
(vi) The date the treatability study was concluded;
(vii) The date any unused sample or residues generated from the
treatability study were returned to the generator or sample collector
or, if sent to a designated facility, the name of the facility and the
EPA identification number.
(8) The facility keeps, on-site, a copy of the treatability study
contract and all shipping papers associated with the transport of
treatability study samples to and from the facility for a period
[[Page 52]]
ending 3 years from the completion date of each treatability study.
(9) The facility prepares and submits a report to the Regional
Administrator, or State Director (if located in an authorized State), by
March 15 of each year that estimates the number of studies and the
amount of waste expected to be used in treatability studies during the
current year, and includes the following information for the previous
calendar year:
(i) The name, address, and EPA identification number of the facility
conducting the treatability studies;
(ii) The types (by process) of treatability studies conducted;
(iii) The names and addresses of persons for whom studies have been
conducted (including their EPA identification numbers);
(iv) The total quantity of waste in storage each day;
(v) The quantity and types of waste subjected to treatability
studies;
(vi) When each treatability study was conducted;
(vii) The final disposition of residues and unused sample from each
treatability study.
(10) The facility determines whether any unused sample or residues
generated by the treatability study are hazardous waste under Sec.
261.3 and, if so, are subject to parts 261 through 268, and part 270 of
this chapter, unless the residues and unused samples are returned to the
sample originator under the Sec. 261.4(e) exemption.
(11) The facility notifies the Regional Administrator, or State
Director (if located in an authorized State), by letter when the
facility is no longer planning to conduct any treatability studies at
the site.
(g) Dredged material that is not a hazardous waste. Dredged material
that is subject to the requirements of a permit that has been issued
under 404 of the Federal Water Pollution Control Act (33 U.S.C.1344) or
section 103 of the Marine Protection, Research, and Sanctuaries Act of
1972 (33 U.S.C. 1413) is not a hazardous waste. For this paragraph (g),
the following definitions apply:
(1) The term dredged material has the same meaning as defined in 40
CFR 232.2;
(2) The term permit means:
(i) A permit issued by the U.S. Army Corps of Engineers (Corps) or
an approved State under section 404 of the Federal Water Pollution
Control Act (33 U.S.C. 1344);
(ii) A permit issued by the Corps under section 103 of the Marine
Protection, Research, and Sanctuaries Act of 1972 (33 U.S.C. 1413); or
(iii) In the case of Corps civil works projects, the administrative
equivalent of the permits referred to in paragraphs (g)(2)(i) and (ii)
of this section, as provided for in Corps regulations (for example, see
33 CFR 336.1, 336.2, and 337.6).
[45 FR 33119, May 19, 1980]
Editorial Note: For Federal Register citations affecting Sec.
261.4, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.