[Code of Federal Regulations]
[Title 40, Volume 25]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR261.3]
[Page 34-41]
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
[[Page 35]]
(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 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 1 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 Sec. Sec.
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 Sec. Sec. 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 spent solvents listed in Sec.
261.31--benzene, carbon tetrachloride, tetrachloroethylene,
trichloroethylene or the scrubber waters derived-from the combustion of
these spent 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 1 part per million, OR the total
measured concentration of these solvents entering the headworks of the
facility's wastewater treatment system (at facilities subject to
regulation under the Clean Air Act, as amended, at 40 CFR parts 60, 61,
or 63, or at facilities subject to an enforceable limit in a federal
operating permit that minimizes fugitive emissions), does not exceed 1
part per million on an average weekly basis. Any facility that uses
benzene as a solvent and claims this exemption must use an aerated
biological wastewater treatment system and must use only lined surface
impoundments or tanks prior to secondary clarification in the wastewater
treatment system. Facilities that choose to measure concentration levels
must file a copy of their sampling and analysis plan with the Regional
Administrator, or State Director, as the context requires, or an
authorized representative (``Director'' as defined in 40 CFR 270.2). A
facility must file a copy of a revised sampling and analysis plan only
if the initial plan is rendered inaccurate by changes in the facility's
operations. The sampling and analysis plan must include the monitoring
point location (headworks), the sampling frequency and methodology, and
a list of constituents to be monitored. A facility is eligible for the
direct monitoring option once they receive confirmation that the
sampling and analysis plan has been received by the Director. The
Director may reject the sampling and analysis plan if he/she finds that,
the sampling and analysis plan fails to include the above information;
or the plan parameters would not enable the facility to calculate the
weekly average concentration of these chemicals accurately. If the
Director rejects the sampling and analysis plan or if the Director finds
that the facility is not following the sampling and analysis plan,
[[Page 36]]
the Director shall notify the facility to cease the use of the direct
monitoring option until such time as the bases for rejection are
corrected; 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, 2-ethoxyethanol, or the scrubber waters
derived-from the combustion of these spent 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 the total measured concentration of these
solvents entering the headworks of the facility's wastewater treatment
system (at facilities subject to regulation under the Clean Air Act as
amended, at 40 CFR parts 60, 61, or 63, or at facilities subject to an
enforceable limit in a federal operating permit that minimizes fugitive
emissions), does not exceed 25 parts per million on an average weekly
basis. Facilities that choose to measure concentration levels must file
a copy of their sampling and analysis plan with the Regional
Administrator, or State Director, as the context requires, or an
authorized representative (``Director'' as defined in 40 CFR 270.2). A
facility must file a copy of a revised sampling and analysis plan only
if the initial plan is rendered inaccurate by changes in the facility's
operations. The sampling and analysis plan must include the monitoring
point location (headworks), the sampling frequency and methodology, and
a list of constituents to be monitored. A facility is eligible for the
direct monitoring option once they receive confirmation that the
sampling and analysis plan has been received by the Director. The
Director may reject the sampling and analysis plan if he/she finds that,
the sampling and analysis plan fails to include the above information;
or the plan parameters would not enable the facility to calculate the
weekly average concentration of these chemicals accurately. If the
Director rejects the sampling and analysis plan or if the Director finds
that the facility is not following the sampling and analysis plan, the
Director shall notify the facility to cease the use of the direct
monitoring option until such time as the bases for rejection are
corrected; 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 hazardous waste, commercial chemical product, or
chemical intermediate listed in Sec. Sec. 261.31 through 261.33,
arising from de minimis losses of these materials. For purposes of this
paragraph (a)(2)(iv)(D), de minimis losses are inadvertent releases to a
wastewater treatment system, including 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. Any manufacturing facility that
claims an exemption for de minimis quantities of wastes listed in
Sec. Sec. 261.31 through 261.32, or any nonmanufacturing facility that
claims an exemption for de minimis quantities of wastes listed in
subpart D of this part must either have eliminated the discharge of
wastewaters or have included in its Clean Water Act
[[Page 37]]
permit application or submission to its pretreatment control authority
the constituents for which each waste was listed (in 40 CFR 261 appendix
VII) of this part; and the constituents in the table ``Treatment
Standards for Hazardous Wastes'' in 40 CFR 268.40 for which each waste
has a treatment standard (i.e., Land Disposal Restriction constituents).
A facility is eligible to claim the exemption once the permit writer or
control authority has been notified of possible de minimis releases via
the Clean Water Act permit application or the pretreatment control
authority submission. A copy of the Clean Water permit application or
the submission to the pretreatment control authority must be placed in
the facility's on-site files; or
(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 cannot 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 dilution into the headworks of the facility's
wastewater treatment system does not exceed a total of 5 parts per
million by weight OR the total measured concentration of these chemicals
entering the headworks of the facility's wastewater treatment system (at
facilities subject to regulation under the Clean Air Act as amended, at
40 CFR parts 60, 61, or 63, or at facilities subject to an enforceable
limit in a federal operating permit that minimizes fugitive emissions),
does not exceed 5 parts per million on an average weekly basis.
Facilities that choose to measure concentration levels must file copy of
their sampling and analysis plan with the Regional Administrator, or
State Director, as the context requires, or an authorized representative
(``Director'' as defined in 40 CFR 270.2). A facility must file a copy
of a revised sampling and analysis plan only if the initial plan is
rendered inaccurate by changes in the facility's operations. The
sampling and analysis plan must include the monitoring point location
(headworks), the sampling frequency and methodology, and a list of
constituents to be monitored. A facility is eligible for the direct
monitoring option once they receive confirmation that the sampling and
analysis plan has been received by the Director. The Director may reject
the sampling and analysis plan if he/she finds that, the sampling and
analysis plan fails to include the above information; or the plan
parameters would not enable the facility to calculate the weekly average
concentration of these chemicals accurately. If the Director rejects the
sampling and analysis plan or if the Director finds that the facility is
not following the sampling and analysis plan, the Director shall notify
the facility to cease the use of the direct monitoring option until such
time as the bases for rejection are corrected; 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 OR
the total measured concentration of these chemicals entering the
[[Page 38]]
headworks of the facility's wastewater treatment system (at facilities
subject to regulation under the Clean Air Act as amended, at 40 CFR
parts 60, 61, or 63, or at facilities subject to an enforceable limit in
a federal operating permit that minimizes fugitive emissions), does not
exceed 5 milligrams per liter on an average weekly basis. Facilities
that choose to measure concentration levels must file copy of their
sampling and analysis plan with the Regional Administrator, or State
Director, as the context requires, or an authorized representative
(``Director'' as defined in 40 CFR 270.2). A facility must file a copy
of a revised sampling and analysis plan only if the initial plan is
rendered inaccurate by changes in the facility's operations. The
sampling and analysis plan must include the monitoring point location
(headworks), the sampling frequency and methodology, and a list of
constituents to be monitored. A facility is eligible for the direct
monitoring option once they receive confirmation that the sampling and
analysis plan has been received by the Director. The Director may reject
the sampling and analysis plan if he/she finds that, the sampling and
analysis plan fails to include the above information; or the plan
parameters would not enable the facility to calculate the weekly average
concentration of these chemicals accurately. If the Director rejects the
sampling and analysis plan or if the Director finds that the facility is
not following the sampling and analysis plan, the Director shall notify
the facility to cease the use of the direct monitoring option until such
time as the bases for rejection are corrected.
(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, 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).
(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 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
[[Page 39]]
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
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
[[Page 40]]
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 Sec. Sec. 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, 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
[[Page 41]]
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; 70 FR 34561, June 14, 2005; 70 FR
57784, Oct. 4, 2005; 71 FR 40258, July 14, 2006]