40 CFR §262.11 “Hazardous Waste Determination”

[which is incorporated into §391­3­11­.08(1) of the Georgia Rules 

for Hazardous Waste Management by reference]

§262.11 states, the following: 

“A person who generates a solid waste, as defined in 40 CFR 261.2 [Definition of Solid Waste], must determine

if that waste is a hazardous waste using the following method: 

(a) He should first determine if the waste is  excluded from regulation under 40 CFR 261.4 [“Exclusions” – 

the exclusions  include the following sections: Materials  which are not solid wastes; Solid wastes which 

are not  hazardous  wastes; Hazardous  wastes  which are exempted from certain regulations; Samples;

Treatability Study Samples; Samples  Undergoing Treatability Studies  at  Laboratories  and Testing 

Facilities; and Dredged material that is not a hazardous waste].

(b) He must then determine if the waste is listed as a hazardous waste in subpart D of 40 CFR part 261 [Lists 

of Hazardous Waste].

(c) For purposes  of compliance with 40 CFR part  268 [Land Disposal Restrictions], or if the waste is  not 

listed in subpart  D  of 40 CFR part  261 [Lists  of Hazardous Waste], the generator must then determine

whether the waste is identified in subpart C of 40 CFR part 261 [Characteristics of Hazardous Waste] by 

either: 

(1) Testing the waste according to the methods  set  forth in subpart  C of 40  CFR part  261 

[Characteristics  of Hazardous  Waste], or according to an equivalent  method approved by the

Administrator under 40 CFR 260.21 [Petitions for equivalent testing or analytical methods]; or

(2) Applying knowledge of the hazard characteristic of the waste in light  of the materials  or the

processes used.

(d) If the waste is determined to be hazardous, the generator must refer to parts 261 [Identification and Listing 

of Hazardous Waste], 264 [Standards for Owners or Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities], 265  [Interim Status standards  for Owners  or Operators  of Hazardous  Waste

Treatment, Storage, and Disposal Facilities], 266 [Standards for the Management of Specific Hazardous 

Wastes  and Specific Types  of Hazardous  Waste Management  Facilities], 268  [Land Disposal 

Restrictions], and 273  [Standards  for Universal Waste Management]  of this  chapter [Chapter 1  –  Environmental Protection] for possible exclusions or restrictions pertaining to management of the specific

waste.”

Generators of solid wastes are responsible for determining if their waste is a hazardous waste in accordance with 

§262.11 of the Georgia Rules for Hazardous Waste Management. To assist with this determination, below we

have provided “The most common problems  resulting in a violation of this  rules”, followed by “a flowchart 

which provides  a step­by­step  process  for making a hazardous  waste determination [from 40  CFR Part  260 

Appendix I]”, and lastly “additional references for making hazardous waste determinations”.

The most common problems resulting in a violation of this rule include: 

ÿ Only  evaluating  the waste by testing for TCLP (the toxicity  characteristic leaching  procedures), 

ignitability, and/or  pH  (three of the characteristics  of hazardous  waste). §262.11  of the Rules 

layout the three steps of making a hazardous waste determination which are as follows: (1) You must

first determine if the waste is excluded from regulation as either a solid waste or a hazardous waste. (2)

If your waste is  not  excluded, you  then need to determine if it  listed in Subpart  D  of §261 [Lists  of

Hazardous  Waste]. (3) You  then need to determine whether the waste is  characteristically hazardous 

waste as identified in subpart C of 40 CFR part 261 [Characteristics of Hazardous Waste]. However, some generators  skip  the first two steps  and only evaluate the waste by determining whether it  is 

characteristic by testing for ignitability, corrosivity and/or TCLP. Making a waste determination is  a

step­by­step  process, and should start  with the determining whether the waste is  excluded, then listed, and finally characteristic.
ÿ Not properly documenting the determination. If a waste is not excluded (from the definition of solid 

waste or hazardous waste) or is not  a listed waste in accordance with §262.11(a) & (b), the generator

may test the waste or use knowledge of the waste to determine if that waste is a characteristic waste. In 

addition to complying with §262.11  of the Rules, generators  of hazardous  waste are required by 

§268.7(a) [Land Disposal Restrictions  “Testing, tracking, and recordkeeping requirements for

generators, treaters, and disposal facilities”] to determine if the waste has to be treated before it is land 

disposed. This determination can be made by either testing the waste or using knowledge of the waste.

[The discussion below is specific to the decision of whether to test the waste or to apply knowledge of

the waste to (1) determine whether the waste is  restricted from land disposal, and (2) to make the

hazardous waste determination; therefore, remember throughout the discussion in this section, that it is 

assumed that the generator has already determined that the waste is not excluded and is not listed].

If knowledge is  used in the determination, the rationale for that  determination should be adequately 

documented. Documentation in this  case should include, but  is  not  limited to, specific information 

about  the chemical(s)  or material(s)  that  make up  the waste such as  chemical and physical properties 

from published or documented sources, and information about  the process  itself. Chemical specific

knowledge regarding the contents of the waste, and its physical properties may be able to tell you if that 

waste exhibits characteristics  such as  corrosivity (based on pH), ignitability (based on flashpoint),

reactivity (based on reactivity data), or toxicity (contains TCLP constituents at concentrations exceeding 

TCLP levels).  Information about the process generating the waste and how it affects the waste can be

helpful in determining whether the waste is  hazardous. Does  the material/product  pick up  additional 

hazardous constituents (contaminants) during the generation process?  Does the process make the waste

more dilute? More concentrated? More contaminated? In using generator knowledge, the determination 

must be valid, correct, and supported by documentation, especially when that determination is that the

waste is not a hazardous waste or does not carry certain waste codes (contain certain contaminants) one

might question whether are in the wastes.

Using knowledge alone to make a hazardous  waste determination may not  always  be adequate due to 

the variability of the waste, or the lack of knowledge of chemical processes in generating the waste. In 

those cases where the waste generated is variable, generators may choose to make a determination that 

the waste is  hazardous waste rather than testing the waste each time it is generated. Similarly, in the

case of a hazardous waste that is always hazardous, but is characteristic for certain constituents at times,

but not at others, the generator may choose to be inclusive of all potential waste codes, rather than test

the waste each time it is generated. If the generator with a variable waste chooses not to treat the waste

as described above in this paragraph, the waste must be tested as generated.

If test methods  are used to determine if the waste exhibits a characteristic, a description of how the

waste was sampled to obtain a representative sample and copies of the analytical results for that sample

should be included as  documentation of the hazardous waste determination. The generator may apply 

knowledge of the waste and the generation process  to determine which constituents/parameters  to 

include in analyses of the samples, rather than applying the full suite of analysis. However, if the full 

suite of analyses  is  not  applied, the generator must have sufficient  documentation to demonstrate why 

only certain analyses  were applied, and not  all. Adequate documentation includes  a list of

constituents/chemicals that make up the waste, their physical and chemical properties, the effects of the

process  on the product/materials  in the waste, and whether the product/material picks  up  additional 

hazardous  constituents (contaminants) in the process; all of which provide knowledge as  to what 

constituents should be included in the analyses.

ÿ Failing to  properly  identify  all hazardous waste generated at the facility. §262.11 first states, “A 

person who generates  a solid waste, as  defined in 40  CFR 261.2  [Definition of Solid Waste], must

determine if that  waste is  a hazardous  waste . . .” Many solid waste streams  at facilities  tend to be

overlooked as  hazardous  wastes  because the solid waste usually does  not  resemble what  one would
think a hazardous waste looks like [i.e., wastes that are not a liquid chemical waste (rags, absorbents, or

filters); or wastes that are not directly generated in manufacturing process (universal wastes, computers,

electronics, or sludge in drains or sumps); wastes that  are newly regulated (electronics); or wastes that 

are similar to household hazardous wastes (mercury thermometers, aerosol cans, batteries, and lamps), 

which are excluded as  hazardous  waste in accordance with §261.4(b)(1).]. Wastes  which tend to be

overlooked include: universal wastes  (such as  batteries, fluorescent  lamps, and lighting fixtures), 

partially­empty aerosol cans, rags, used electronic and computer equipment, mercury thermometers,

absorbents, filters, antifreeze, and sludge from drains or sumps near unloading/loading areas.

A flowchart  which provides  a step­by­step  process for making a hazardous waste determination can be found 

below [from 40 CFR Part 260 Appendix I]:


Additional references for making hazardous waste determinations can found at the following websites: 

ÿ RCRA Training  Module Introduction  to  Hazardous Waste  Identification, published  by U.S.

Environmental Protection Agency, EPA530­K­05­012, September 2005,

http://www.epa.gov/epawaste/inforesources/pubs/hotline/training/hwid05.pdf

ÿ Hazardous Waste Identification Flowchart at Fedcenter.com, http://www.fedcenter.gov/resources/facilitytour/hazardous/whatis/flowchart/.