[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]