Section

[Code of Federal Regulations]

[Title 40, Volume 26]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR268.7]

[Page 179-185]

TITLE 40--PROTECTION OF ENVIRONMENT

CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

PART 268_LAND DISPOSAL RESTRICTIONS--Table of Contents

Subpart A_General

Sec. 268.7 Testing, tracking, and recordkeeping requirements for

generators, treaters, and disposal facilities.

(a) Requirements for generators: (1) A generator of hazardous waste

must determine if the waste has to be treated before it can be land

disposed. This is done by determining if the hazardous waste meets the

treatment standards in Sec. 268.40, 268.45, or Sec. 268.49. This

determination can be made concurrently with the hazardous waste

determination required in Sec. 262.11 of this chapter, in either of two

ways: testing the waste or using knowledge of the waste. If the

generator tests the waste, testing would normally determine the total

concentration of hazardous constituents, or the concentration of

hazardous constituents in an extract of the waste obtained using test

method 1311 in ``Test Methods of Evaluating Solid Waste, Physical/

Chemical Methods,'' EPA Publication SW-846, (incorporated by reference,

see Sec. 260.11 of this chapter), depending on whether the treatment

standard for the waste is expressed as a total concentration or

concentration of hazardous constituent in the waste's extract.

(Alternatively, the generator must send the waste to a RCRA-permitted

hazardous waste treatment facility, where the waste treatment facility

must comply with the requirements of Sec. 264.13 of this chapter and

paragraph (b) of this section. In addition, some hazardous wastes must

be treated by particular treatment methods before they can be land

disposed and some soils are contaminated by such hazardous wastes. These

treatment standards are also found in Sec. 268.40, and are described in

detail in Sec. 268.42, Table 1. These wastes, and solids contaminated

with such wastes, do not need to be tested (however, if they are in a

waste mixture, other wastes with concentration level treatment standards

would have to be tested). If a generator determines they are managing a

waste or soil contaminated with a waste, that displays a hazardous

characteristic of ignitability, corrosivity, reactivity, or toxicity,

they must comply with the special requirements of Sec. 268.9 of this

part in addition to any applicable requirements in this section.

(2) If the waste or contaminated soil does not meet the treatment

standards, or if the generator chooses not to make the determination of

whether his waste must be treated, with the initial shipment of waste to

each treatment or storage facility, the generator must

[[Page 180]]

send a one-time written notice to each treatment or storage facility

receiving the waste, and place a copy in the file. The notice must

include the information in column ``268.7(a)(2)'' of the Generator

Paperwork Requirements Table in paragraph (a)(4) of this section.

(Alternatively, if the generator chooses not to make the determination

of whether the waste must be treated, the notification must include the

EPA Hazardous Waste Numbers and Manifest Number of the first shipment

and must state ``This hazardous waste may or may not be subject to the

LDR treatment standards. The treatment facility must make the

determination.'') No further notification is necessary until such time

that the waste or facility change, in which case a new notification must

be sent and a copy placed in the generator's file.

(3) If the waste or contaminated soil meets the treatment standard

at the original point of generation:

(i) With the initial shipment of waste to each treatment, storage,

or disposal facility, the generator must send a one-time written notice

to each treatment, storage, or disposal facility receiving the waste,

and place a copy in the file. The notice must include the information

indicated in column ``268.7(a)(3)'' of the Generator Paperwork

Requirements Table in Sec. 268.7(a)(4) and the following certification

statement, signed by an authorized representative:

I certify under penalty of law that I personally have examined and

am familiar with the waste through analysis and testing or through

knowledge of the waste to support this certification that the waste

complies with the treatment standards specified in 40 CFR part 268

subpart D. I believe that the information I submitted is true, accurate,

and complete. I am aware that there are significant penalties for

submitting a false certification, including the possibility of a fine

and imprisonment.

(ii) For contaminated soil, with the initial shipment of wastes to

each treatment, storage, or disposal facility, the generator must send a

one-time written notice to each facility receiving the waste and place a

copy in the file. The notice must include the information in

``268.7(a)(3) of the Generator Paperwork Requirements Table in Sec.

268.7(a)(4).

(iii) If the waste changes, the generator must send a new notice and

certification to the receiving facility, and place a copy in their

files. Generators of hazardous debris excluded from the definition of

hazardous waste under Sec. 261.3(f) of this chapter are not subject to

these requirements.

(4) For reporting, tracking, and recordkeeping when exceptions allow

certain wastes or contaminated soil that do not meet the treatment

standards to be land disposed: There are certain exemptions from the

requirement that hazardous wastes or contaminated soil meet treatment

standards before they can be land disposed. These include, but are not

limited to case-by-case extensions under Sec. 268.5, disposal in a no-

migration unit under Sec. 268.6, or a national capacity variance or

case-by-case capacity variance under subpart C of this part. If a

generator's waste is so exempt, then with the initial shipment of waste,

the generator must send a one-time written notice to each land disposal

facility receiving the waste. The notice must include the information

indicated in column ``268.7(a)(4)'' of the Generator Paperwork

Requirements Table below. If the waste changes, the generator must send

a new notice to the receiving facility, and place a copy in their files.

Generator Paperwork Requirements Table

----------------------------------------------------------------------------------------------------------------

Sec. 268.7 Sec. 268.7 Sec. 268.7 Sec. 268.7

Required information (a)(2) (a)(3) (a)(4) (a)(9)

----------------------------------------------------------------------------------------------------------------

1. EPA Hazardous Waste Numbers and Manifest Number of [bcheck] [bcheck] [bcheck] [bcheck]

first shipment.........................................

2. Statement: this waste is not prohibited from land [bcheck]

disposal...............................................

3. The waste is subject to the LDRs. The constituents of [bcheck] [bcheck]

concern for F001-F005, and F039, and underlying

hazardous constituents in characteristic wastes, unless

the waste will be treated and monitored for all

constituents. If all constituents will be treated and

monitored, there is no need to put them all on the LDR

notice.................................................

[[Page 181]]

4. The notice must include the applicable wastewater/ [bcheck] [bcheck]

nonwastewater category (see Sec. Sec. 268.2(d) and

(f)) and subdivisions made within a waste code based on

waste-specific criteria (such as D003 reactive cyanide)

5. Waste analysis data (when available)................. [bcheck] [bcheck] [bcheck]

6. Date the waste is subject to the prohibition......... [bcheck]

7. For hazardous debris, when treating with the [bcheck] [bcheck]

alternative treatment technologies provided by Sec.

268.45: the contaminants subject to treatment, as

described in Sec. 268.45(b); and an indication that

these contaminants are being treated to comply with

Sec. 268.45..........................................

8. For contaminated soil subject to LDRs as provided in [bcheck] [bcheck]

Sec. 268.49(a), the constituents subject to treatment

as described in Sec. 268.49(d), and the following

statement: This contaminated soil [does/does not]

contain listed hazardous waste and [does/does not]

exhibit a characteristic of hazardous waste and [is

subject to/complies with the soil treatment standards

as provided by Sec. 268.49(c) or the universal

treatment standards....................................

9. A certification is needed (see applicable section for [bcheck] [bcheck]

exact wording).........................................

----------------------------------------------------------------------------------------------------------------

(5) If a generator is managing and treating prohibited waste or

contaminated soil in tanks, containers, or containment buildings

regulated under 40 CFR 262.34 to meet applicable LDR treatment standards

found at Sec. 268.40, the generator must develop and follow a written

waste analysis plan which describes the procedures they will carry out

to comply with the treatment standards. (Generators treating hazardous

debris under the alternative treatment standards of Table 1, Sec.

268.45, however, are not subject to these waste analysis requirements.)

The plan must be kept on site in the generator's records, and the

following requirements must be met:

(i) The waste analysis plan must be based on a detailed chemical and

physical analysis of a representative sample of the prohibited waste(s)

being treated, and contain all information necessary to treat the

waste(s) in accordance with the requirements of this part, including the

selected testing frequency.

(ii) Such plan must be kept in the facility's on-site files and made

available to inspectors.

(iii) Wastes shipped off-site pursuant to this paragraph must comply

with the notification requirements of Sec. 268.7(a)(3).

(6) If a generator determines that the waste or contaminated soil is

restricted based solely on his knowledge of the waste, all supporting

data used to make this determination must be retained on-site in the

generator's files. If a generator determines that the waste is

restricted based on testing this waste or an extract developed using the

test method 1311 in ``Test Methods for Evaluating Solid Waste, Physical/

Chemical Methods,'' EPA Publication SW-846, as referenced in Sec.

260.11 of this chapter, and all waste analysis data must be retained on-

site in the generator's files.

(7) If a generator determines that he is managing a prohibited waste

that is excluded from the definition of hazardous or solid waste or is

exempted from Subtitle C regulation under 40 CFR 261.2 through 261.6

subsequent to the point of generation (including deactivated

characteristic hazardous wastes managed in wastewater treatment systems

subject to the Clean Water Act (CWA) as specified at 40 CFR 261.4(a)(2)

or that are CWA-equivalent, or are managed in an underground injection

well regulated by the SDWA), he must place a one-time notice describing

such generation, subsequent exclusion from the definition of hazardous

or solid waste or exemption from RCRA Subtitle C regulation, and the

disposition of the waste, in the facility's on-site files.

(8) Generators must retain on-site a copy of all notices,

certifications, waste analysis data, and other documentation produced

pursuant to this section for at least three years from the date that the

waste that is the subject of such documentation was last

[[Page 182]]

sent to on-site or off-site treatment, storage, or disposal. The three

year record retention period is automatically extended during the course

of any unresolved enforcement action regarding the regulated activity or

as requested by the Administrator. The requirements of this paragraph

apply to solid wastes even when the hazardous characteristic is removed

prior to disposal, or when the waste is excluded from the definition of

hazardous or solid waste under 40 CFR 261.2 through 261.6, or exempted

from Subtitle C regulation, subsequent to the point of generation.

(9) If a generator is managing a lab pack containing hazardous

wastes and wishes to use the alternative treatment standard for lab

packs found at Sec. 268.42(c):

(i) With the initial shipment of waste to a treatment facility, the

generator must submit a notice that provides the information in column

``Sec. 268.7(a)(9)'' in the Generator Paperwork Requirements Table of

paragraph (a)(4) of this section, and the following certification. The

certification, which must be signed by an authorized representative and

must be placed in the generator's files, must say the following:

I certify under penalty of law that I personally have examined and

am familiar with the waste and that the lab pack contains only wastes

that have not been excluded under appendix IV to 40 CFR part 268 and

that this lab pack will be sent to a combustion facility in compliance

with the alternative treatment standards for lab packs at 40 CFR

268.42(c). I am aware that there are significant penalties for

submitting a false certification, including the possibility of fine or

imprisonment.

(ii) No further notification is necessary until such time that the

wastes in the lab pack change, or the receiving facility changes, in

which case a new notice and certification must be sent and a copy placed

in the generator's file.

(iii) If the lab pack contains characteristic hazardous wastes

(D001-D043), underlying hazardous constituents (as defined in Sec.

268.2(i)) need not be determined.

(iv) The generator must also comply with the requirements in

paragraphs (a)(6) and (a)(7) of this section.

(10) Small quantity generators with tolling agreements pursuant to

40 CFR 262.20(e) must comply with the applicable notification and

certification requirements of paragraph (a) of this section for the

initial shipment of the waste subject to the agreement. Such generators

must retain on-site a copy of the notification and certification,

together with the tolling agreement, for at least three years after

termination or expiration of the agreement. The three-year record

retention period is automatically extended during the course of any

unresolved enforcement action regarding the regulated activity or as

requested by the Administrator.

(b) Treatment facilities must test their wastes according to the

frequency specified in their waste analysis plans as required by 40 CFR

264.13 (for permitted TSDs) or 40 CFR 265.13 (for interim status

facilities). Such testing must be performed as provided in paragraphs

(b)(1), (b)(2) and (b)(3) of this section.

(1) For wastes or contaminated soil with treatment standards

expressed in the waste extract (TCLP), the owner or operator of the

treatment facility must test an extract of the treatment residues, using

test method 1311 (the Toxicity Characteristic Leaching Procedure,

described in ``Test Methods for Evaluating Solid Waste, Physical/

Chemical Methods,'' EPA Publication SW-846 as incorporated by reference

in Sec. 260.11 of this chapter) to assure that the treatment residues

extract meet the applicable treatment standards.

(2) For wastes or contaminated soil with treatment standards

expressed as concentrations in the waste, the owner or operator of the

treatment facility must test the treatment residues (not an extract of

such residues) to assure that they meet the applicable treatment

standards.

(3) A one-time notice must be sent with the initial shipment of

waste or contaminated soil to the land disposal facility. A copy of the

notice must be placed in the treatment facility's file.

(i) No further notification is necessary until such time that the

waste or receiving facility change, in which case a new notice must be

sent and a copy placed in the treatment facility's file.

[[Page 183]]

(ii) The one-time notice must include these requirements:

Treatment Facility Paperwork Requirements Table

------------------------------------------------------------------------

Sec.

Required information 268.7(b)

------------------------------------------------------------------------

1. EPA Hazardous Waste Numbers and Manifest Number of [bcheck]

first shipment...........................................

2. The waste is subject to the LDRs. The constituents of [bcheck]

concern for F001-F005, and F039, and underlying hazardous

constituents in characteristic wastes, unless the waste

will be treated and monitored for all constituents. If

all constituents will be treated and monitored, there is

no need to put them all on the LDR notice................

3. The notice must include the applicable wastewater/ [bcheck]

nonwastewater category (see Sec. Sec. 268.2(d) and

(f)) and subdivisions made within a waste code based on

waste-specific criteria (such as D003 reactive cyanide)..

4. Waste analysis data (when available)................... [bcheck]

5. For contaminated soil subject to LDRs as provided in [bcheck]

268.49(a), the constituents subject to treatment as

described in 268.49(d) and the following statement,

``this contaminated soil [does/does not] exhibit a

characteristic of hazardous waste and [is subject to/

complies with] the soil treatment standards as provided

by 268.49(c).............................................

6. A certification is needed (see applicable section for [bcheck]

exact wording)...........................................

------------------------------------------------------------------------

(4) The treatment facility must submit a one-time certification

signed by an authorized representative with the initial shipment of

waste or treatment residue of a restricted waste to the land disposal

facility. The certification must state:

I certify under penalty of law that I have personally examined and

am familiar with the treatment technology and operation of the treatment

process used to support this certification. Based on my inquiry of those

individuals immediately responsible for obtaining this information, I

believe that the treatment process has been operated and maintained

properly so as to comply with the treatment standards specified in 40

CFR 268.40 without impermissible dilution of the prohibited waste. I am

aware there are significant penalties for submitting a false

certification, including the possibility of fine and imprisonment.

A certification is also necessary for contaminated soil and it must

state:

I certify under penalty of law that I have personally examined and

am familiar with the treatment technology and operation of the treatment

process used to support this certification and believe that it has been

maintained and operated properly so as to comply with treatment

standards specified in 40 CFR 268.49 without impermissible dilution of

the prohibited wastes. I am aware there are significant penalties for

submitting a false certification, including the possibility of fine and

imprisonment.

(i) A copy of the certification must be placed in the treatment

facility's on-site files. If the waste or treatment residue changes, or

the receiving facility changes, a new certification must be sent to the

receiving facility, and a copy placed in the file.

(ii) Debris excluded from the definition of hazardous waste under

Sec. 261.3(e) of this chapter (i.e., debris treated by an extraction or

destruction technology provided by Table 1, Sec. 268.45, and debris

that the Director has determined does not contain hazardous waste),

however, is subject to the notification and certification requirements

of paragraph (d) of this section rather than the certification

requirements of this paragraph.

(iii) For wastes with organic constituents having treatment

standards expressed as concentration levels, if compliance with the

treatment standards is based in whole or in part on the analytical

detection limit alternative specified in Sec. 268.40(d), the

certification, signed by an authorized representative, must state the

following:

I certify under penalty of law that I have personally examined and

am familiar with the treatment technology and operation of the treatment

process used to support this certification. Based on my inquiry of those

individuals immediately responsible for obtaining this information, I

believe that the nonwastewater organic constituents have been treated by

combustion units as specified in 268.42, Table 1. I have been unable to

detect the nonwastewater organic constituents, despite having used best

good-faith efforts to analyze for such constituents. I am aware there

are significant penalties for submitting a false certification,

including the possibility of fine and imprisonment.

(iv) For characteristic wastes that are subject to the treatment

standards in Sec. 268.40 (other than those expressed as a method of

treatment), or Sec. 268.49, and that contain underlying hazardous

constituents as defined in Sec. 268.2(i); if

[[Page 184]]

these wastes are treated on-site to remove the hazardous characteristic;

and are then sent off-site for treatment of underlying hazardous

constituents, the certification must state the following:

I certify under penalty of law that the waste has been treated in

accordance with the requirements of 40 CFR 268.40 or 268.49 to remove

the hazardous characteristic. This decharacterized waste contains

underlying hazardous constituents that require further treatment to meet

treatment standards. I am aware that there are significant penalties for

submitting a false certification, including the possibility of fine and

imprisonment.

(v) For characteristic wastes that contain underlying hazardous

constituents as defined Sec. 268.2(i) that are treated on-site to

remove the hazardous characteristic to treat underlying hazardous

constituents to levels in Sec. 268.48 Universal Treatment Standards,

the certification must state the following:

I certify under penalty of law that the waste has been treated in

accordance with the requirements of 40 CFR 268.40 to remove the

hazardous characteristic and that underlying hazardous constituents, as

defined in Sec. 268.2(i) have been treated on-site to meet the Sec.

268.48 Universal Treatment Standards. I am aware that there are

significant penalties for submitting a false certification, including

the possibility of fine and imprisonment.

(5) If the waste or treatment residue will be further managed at a

different treatment, storage, or disposal facility, the treatment,

storage, or disposal facility sending the waste or treatment residue

off-site must comply with the notice and certification requirements

applicable to generators under this section.

(6) Where the wastes are recyclable materials used in a manner

constituting disposal subject to the provisions of Sec. 266.20(b) of

this chapter regarding treatment standards and prohibition levels, the

owner or operator of a treatment facility (i.e., the recycler) must, for

the initial shipment of waste, prepare a one-time certification

described in paragraph (b)(4) of this section, and a one-time notice

which includes the information in paragraph (b)(3) of this section

(except the manifest number). The certification and notification must be

placed in the facility's on-site files. If the waste or the receiving

facility changes, a new certification and notification must be prepared

and placed in the on site files. In addition, the recycling facility

must also keep records of the name and location of each entity receiving

the hazardous waste-derived product.

that is a recyclable material used in a manner constituting disposal

pursuant to 40 CFR 266.20(b), the owner or operator of any land disposal

facility disposing any waste subject to restrictions under this part

must:

(1) Have copies of the notice and certifications specified in

paragraph (a) or (b) of this section.

(2) Test the waste, or an extract of the waste or treatment residue

developed using test method 1311 (the Toxicity Characteristic Leaching

Procedure), described in ``Test Methods for Evaluating Solid Waste,

Physical/Chemical Methods,'' EPA Publication SW-846 as incorporated by

reference in Sec. 260.11 of this chapter), to assure that the wastes or

treatment residues are in compliance with the applicable treatment

standards set forth in subpart D of this part. Such testing must be

performed according to the frequency specified in the facility's waste

analysis plan as required by Sec. 264.13 or Sec. 265.13 of this

chapter.

(d) Generators or treaters who first claim that hazardous debris is

excluded from the definition of hazardous waste under Sec. 261.3(e) of

this chapter (i.e., debris treated by an extraction or destruction

technology provided by Table 1, Sec. 268.45, and debris that the EPA

Regional Administrator (or his designated representative) or State

authorized to implement part 268 requirements has determined does not

contain hazardous waste) are subject to the following notification and

certification requirements:

(1) A one-time notification, including the following information,

must be submitted to the EPA Regional hazardous waste management

division director (or his designated representative) or State authorized

to implement part 268 requirements, or State authorized to implement

part 268 requirements:

[[Page 185]]

(2) The notification must be updated if the debris is shipped to a

different facility, and, for debris excluded under Sec. 261.2(e)(1) of

this chapter, if a different type of debris is treated or if a different

technology is used to treat the debris.

(3) For debris excluded under Sec. 261.3(e)(1) of this chapter, the

owner or operator of the treatment facility must document and certify

compliance with the treatment standards of Table 1, Sec. 268.45, as

follows:

(i) Records must be kept of all inspections, evaluations, and

analyses of treated debris that are made to determine compliance with

the treatment standards;

(ii) Records must be kept of any data or information the treater

obtains during treatment of the debris that identifies key operating

parameters of the treatment unit; and

(iii) For each shipment of treated debris, a certification of

compliance with the treatment standards must be signed by an authorized

representative and placed in the facility's files. The certification

must state the following: ``I certify under penalty of law that the

debris has been treated in accordance with the requirements of 40 CFR

268.45. I am aware that there are significant penalties for making a

false certification, including the possibility of fine and

imprisonment.''

(e) Generators and treaters who first receive from EPA or an

authorized state a determination that a given contaminated soil subject

to LDRs as provided in Sec. 268.49(a) no longer contains a listed

hazardous waste and generators and treaters who first determine that a

contaminated soil subject to LDRs as provided in Sec. 268.49(a) no

longer exhibits a characteristic of hazardous waste must:

(1) Prepare a one-time only documentation of these determinations

including all supporting information; and,

(2) Maintain that information in the facility files and other

records for a minimum of three years.

[51 FR 40638, Nov. 7, 1986; 52 FR 21016, June 4, 1987]

Editorial Note: For Federal Register citations affecting Sec.

268.7, see the List of CFR Sections Affected, which appears in the

Finding Aids section of the printed volume and on GPO Access.