CHAPTER IV QUALITY SERVICES



## PART 

## 371

IDENTIFICATION ANDLISTING OF HAZARDOUS WASTES

### § 371.1

(Statutory authority: Environmental Conservation Law. art. I. title I. art. 3. title 3. §§ 19-0301. 19-0303.19-0304.19-0306.23-2305.23-2307.23-2308. art. 27, §§ 27-0105. 27-0106.27-0305. titles 1. 3. 7. 9. §§ 70-0107. 70-0109. 70-0115. art. 71. § 71-2201. titles 27.35)

Sec. 371.1 General 371.2 Criteria for identifying the characteristics of hazardous waste and for listing hazardous wastes 371.3 Characteristics of hazardous waste 371.4 Lists of hazardous wastes

Historical Note Part (§§ 371.1-371.4) filed May 14. 1985 eff. 60 days after filing. 

### § 371.1 General.

(a) Purpose and scope. 

### This Part establishes the procedures for identifying those solid wastes which are subject to regulation as hazardous wastes under Parts 370 through 373, and 376 of this Title. However, even though a given material is defined as a hazardous waste under this Part, it may be exempt from one or more of the substantive provisions of those Parts, as specified in each respectively. Definitions for terms used in this Part are given in Part 370 of this Title. For the purposes ofsubdivisions (c) and (g) of this section: (1) 

### A material is accumulatedspeculatively 

### if it is accumulated before being recycled. A material is notaccumulatedspeculatively, however, if the person accumulating it can show that the material is potentially recyclable and has a feasible means of being recycled; and that during the calendar year (commencing on January 1st) the amount of material that is recycled. or transferred to a different site for recycling, equals at least 75 percent by weight or volume of the amount of that material accumulated at the beginning of the period. 

### In calculating the percentage of turnover. the 75-percent requirement is to be applied to each material of the same type (e.g., 

### slags from a single smelting process) that is recycled in the same way (i.e., 

### from which the same material is recovered or that is used in the same way). Materials accumulating in units that would be exempt from regulation under section 372.1(e)(7) 

### of this Title are not to be included in making the calculation. (Materials that are already defined as solid wastes also are not to be included in making the calculation.) Materials are no longer in this category once they are removed from accumulation by recycling, however.

(2) A byproduct

### is a material that is not one of the primary products of a production process and is not solely or separately produced by the production process. Examples are process residues such as slags or distillation column bottoms. The term does not include a coproduct that is produced for the generalpublic'suse and is ordinarily used in the same form as produced by the process.

(3) A material is reclaimed 

### if it is processed to recover a usable product. or if it is regenerated. Examples are recovery of lead values from spent batteries and regeneration of spent solvents.

(4) A material is recycled 

### if it is used, reused or reclaimed. (5) A material is regenerated 

### if it is restored to its original physical and chemical properties. (6) 

### Scrap metal

### is bits and pieces of metal parts (e.g.. 

### bars. turnings, rods, sheets, wire) or metal pieces that may be combined together with bolts and soldering (e.g., 

### radiators. scrap automobiles, railroad boxcars). which when worn or superfluous can be recycled.

(7) 

### Aspentmaterial

### is any material that has been used and as a result ofcontamination can no longer serve the purpose for which it was produced without processing.

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### § 371.1 TITLE 6 ENVIRONMENTAL CONSERVAnON



### (8) A material is 

### usedor 

### reused if it is either:

(i) employed as aningredient (including use as an intermediate) in anindustrial process to make a product (for example, distillation bottoms from one process used as feedstock in \ another process). However, a material will not satisfy this condition ifdistinct components of the material are recovered as separate end products (as when metals are recovered from metal containing secondary materials); or

(ii) 

### employed in a particular function or application as an effective substitute for a commercial product (for example, spent pickle liquor used as phosphorus precipitant and sludge conditionerin wastewatertreatment). 

### (9) Excluded scrap metal is processed scrap metal, unprocessed horne scrap metal, and unprocessed prompt scrap metal.

(10) 

### Processedscrapmetalis scrap metal which has been manually orphysically altered to either separate it into distinct materials to enhance economic value or to improve the handling of materials. Processed scrap metal includes, but is not limited to scrap metal which has been baled, shredded, sheared, chopped, crushed, flattened, cut. melted, or separated by metal type 

### (i.e., sorted), and, fines, drosses and related materials which have been agglomerated.

Note: Shredded circuit boards being sent for recycling are not considered processed scrap metal. They are covered under the exclusion from the definition of solid waste for shredded circuit boards being recycled (see subparagraph [e][l][xiv] of this section). 

### (11) Home scrap metalis scrap metal as generatedby steel mills, foundries, andrefineries such as turnings, cuttings, punchings, and borings.



### (12) Prompt scrap metal is scrap metal as generated by the metal working/fabrication industries and includes such scrap metal as turnings, cuttings, punchings, and borings. Prompt scrap is also known as industrial or new scrap metal. (b) 

### Applicability. The identification and listing of hazardous wastes given in this Part supersedes any other definition given in any other Part of this Title.

(c) 

### Definition ofsolid waste. (1) 

### A solid waste is any discarded material that is not excluded under paragraph (e)(1) of this section or that is not excluded by variance granted under section 370.3( d) and (e) of this Title.

(2) A 

### discardedmaterialis any material which is:

(i) abandoned as explained in paragraph (3) 

### of this subdivision; or (ii) recycled as explainedin paragraph (4) of this subdivision; or (iii) considered inherently waste-like as explained in paragraph (5) 

### of this subdivision;

or(iv) a military munition identified as a solid waste in section 374-1.13(c) of this Title. (3) 

### Materials are solid waste if they are abandoned by being:

(i) disposed of; or (ii) burned or incinerated; or (iii) accumulated, stored or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned orincinerated. (4) Materials are solid waste if they are recycled-oraccumulated, stored or treated before recycling-as specifiedin subparagraphs (i)-(iv) of this paragraph. (i) Used in amanner constituting disposal.

(a) 

### Materials noted with an asterisk in column I of Table I are solid wastes when they

are: (l) 

### applied to or placed on the land in a manner that constitutes disposal: or (2) contained in products that are applied to the land (in which case the product remains a solid waste).

6046 Conservation 03-15-2006CHAPTER IV QUALITY SERVICES 

### § 371.1

(b) Commercial products listed in section 371.4(d) of this Part are not solid wastes 

### if they are applied to the land and that is their ordinary mannerofuse. (ii) Burning for energy recovery.

(a) Materialsnoted with an asteriskin column 2 ofTable 1 are solid wastes whenthey

are: 

### (1) burned to recover energy; or (2) used toproduce a fuel or are otherwise containedin fuels (in whichcasethe fuel itselfremains a solid waste). (b) However, commercial products listed in section 371.4(d) ofthis Part are not solid waste 

### ifthey are fuels. (iii) Reclaimed materials noted with an asterisk in column 3 ofTable 1 are solid wastes when reclaimed.

(iv) Materials accumulated speculatively noted with an asteriskin column 4 ofTable 1

are solid waste when accumulated speculatively. (5) Inherently waste-like materials. The following materials are solid wastes whenthey are recycled in any manner: (i) Hazardous waste numbers F02D, F021 (unless used as an ingredient to make a product at the site ofgeneration). P022, P023, P026 and P028. (ii) Secondary materials fed to a halogen acid furnace that exhibit a characteristic ofa hazardous wasteor are listed as a hazardous waste as definedin section371.3 or 371.4ofthis Part, except for brominated material that meets the following criteria: (a) the material must contain a bromine concentration of at least45 percent; (b) the material must contain less than a total ofone percent oftoxic organic compounds listed in Appendix 23; and (c) the material is processed continually on-sitein the halogen acid furnace via direct conveyance (hard piping). (iii) The commissionerwill use the following criteriato add waste to that list:

(a) the materials are ordinarily disposed of, burned or incinerated; or (b) the materials contain toxic constituents listed in Appendix 23. 

### infra, and these constituents are not ordinarily found in raw materials or products for which the materials substitute (or are foundin raw materials or productsin smallerconcentrations) and are not used or reused during the recycling process; and

(c) the materials may pose a substantial hazard to human health and the environment when recycled. (6) Materials that are not solid waste when recycled. 0) Materials are not solid waste when they can be shown to be recycledby being: (a) used or reused as ingredients in an industrial process to make a product, provided the materials are not beingreclaimed; or (b) used or reused as effective substitutes forcommercial products; or (c) returned to the original process from which they are generated, withoutfirst being reclaimed or land disposed. The material must be returned as a substitute for feedstock materials. In cases where the original process to which the material is returned is a secondary process, the materials mustbe managed such that there is no placementon the land. (ii) The following materials are solid wastes, evenifthe recycling involvesuse, reuse, or return to the process as described in clauses (i)(a) through (c) of this paragraph: (a) materials used in a manner constituting disposal, or used to produce products that

arc applied to the land; or

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### § 371.1 TITLE6 ENVIRONMENTAL CONSERVATION

(b) materials burned for energy recovery, used to produce fuel, orcontainedin fuels;

or (c) materials accumulated speculatively; or

(d) materials listedin subparagraphs (5)(1)and (ii) ofthis subdivision. (7) Parties who raise a claimthat a certain material is not a solid or hazardous waste, or is exempt or conditionally exempt from regulation, based on the intent to reclaim, recycle or reuse, mustnotify the department, in writing, before utilizingthe exemption or exclusion. Such 

### notification shall give the names and locations of the generating and receiving facilities, if different, identify all exemptions or exclusions that the party is claiming, and describe the activity or activities which are believed to qualify for such exemptions or exclusions. Respondents in actionsto enforceregulations, implementing article 27, who raise aclaimthatacertain material is not a solid or hazardous waste, or is exempt or conditionally exempt from regulation, when intendedfor reclamation, recycling, or reuse, must demonstrate: (i) for on-site reclamation, recycling, or reuse, that the party meets the tenus of the exclusion orexemption; or

(ii) for off-site reclamation, recycling, or reuse:

(a) that there is aknown market ordisposition for the material; (b) that the owner or operator ofthe receiving facility has the necessary equipment and capacity to process the entire volume ofmaterial offered; and

(c) through appropriatedocumentation, such as contracts,that the receivingparty will reclaim, recycle, use, or reuse the material in such a manner as to qualify it for the exemption or exclusion,

Table 1

Use**Enei~y** Speculative constituting recovery/ accumuladisposal fuel Reclamation tion 

### (I) (2) (3) (4) Spent materials 

### * * * Sludges listed in 371.4(b) and (c) 

### * * * * Sludges exhibiting acharacteristic of 

### * * *

hazardous waste Byproducts listedin 371 A(b) and (c) 

### * * * Byproducts exhibiting acharacteristic of 

### * * *

hazardous waste Commercial chemical products listedin 

### * *

371.4(d) Scrap metal other than excluded scrap 

### * * * *

metal (see 371.1 [a][9])

Note: the terms spent materials, sludges, by-products, and scrap metal and processedscrap metal are definedin subdivision (a) of this section. (d) 

### Definition a/hazardous waste. (1) A solid waste, as defined in subdivision (c) ofthis section, is ahazardous waste if: (i) it is not excludedfrom regulation as ahazardous waste underparagraph (e)(2) ofthis section; and

(ii) it meets any of the following criteria:

(a) it exhibits any of the characteristics ofhazardous wasteidentifiedin section 371,3 of this Part. However, any mixture of a waste from the extraction, beneficiation, and processing of ores and minerals excluded under subdivision (e)(2)(vi) ofthis section and

6048 Conservation 01-15-2002CHAPTER IV QUALITY SERVICES 

### § 

### 371.1

any othersolid waste exhibiting acharacteristic ofhazardous waste under section 371.3 of this Part is a hazardous waste only 

### ifit exhibits a characteristic that would not have been exhibited 

### by the excluded waste alone 

### ifsuch mixture had not occurred, or ifit continues to exhibit any of the characteristics exhibited by the nonexcluded wastes priorto 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 in section 371.3(e) of this Part that would not have been exceeded by the excluded waste alone ifthe mixture had not occurred or ifit continues to exceed the maximum concentration for any contaminant exceeded by the nonexempt waste prior to mixture.

(b) It is listed in section 371.4 of this Part and has not been excluded from the lists in section 371.4 underthe provisions of section 370.3(a) and (c) of this Title.

(e) [Reserved] (d) 

### It is a mixture ofsolid waste and one or more hazardous wastes listed in section 371.4 of this Part and has not been excluded from this subparagraph under section 370.3(a) and (c) ofthis Title. or paragraph (6) or (7) of this subdivision; however, the following mixtures of solid wastes and hazardous wastes listed in section 371.4 ofthis Pan are not hazardous wastes (except by application ofclause (a) or (b) ofthis subparagraph) 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 (see section 370.1[e][7][iii] of this Title) (including wastewater at facilities which have eliminatedthe discharge ofwastewater) and: (1) one or more ofthe following spent solvents listed in section 371.4(b) of this Part-carbon tetrachloride. tetrachloroethylene, trichloroethylene-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 ofwastewaterinto the headworks of the facility's wastewatertreatment or pretreatment systemdoes not exceed one mgl1; or

(2) one or more ofthe following spent solvents listed in section 371.4(b) ofthis Part-methylene chloride, 1,1,l-trichloroethane, chlorbenzene, o-dichlorbenzene, eresols, cresylic acid. nitrobenzene. toluene, methyl ethyl ketone, carbon disulfide, isobutanol. pyridine. spent chlorofluorocarbon solvents-provided that the maximum total weekly usage ofthese solvents (other than the amounts that can be demonstrated not to be discharged to wastewater), divided by the average weekly flow ofwastewater into the head works ofthe facility's wastewatertreatment or pretreatment system. does not exceed 25 mg/l; or

(3) one of the following wastes listed in section 371.4(c) ofthis Pan, providedthat the wastes are discharged to the refinery oil recovery sewer before primary oil/water/ solids separation-heatexchangerbundle 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/orin-line filter/separation solids from petroleum refining operations (EPA hazardous waste No. KI70). spent hydrotreatingcatalyst. (EPA Hazardous Waste No. K171), and spent hydrorefining catalyst (EPA Hazardous Waste No. K172); or

(4) a discarded commercial chemical product, or chemical intermediate listed in section 371.4(d) of this Part arising from 

### de minimis losses of these materials from manufacturing operations in which these materials are used as raw materials or are produced in the manufacturing process. For purposes of this subparagraph, 

### de minimis

means unintentional and minor losses ofhazardous materials which occurunavoidably as a result of normal manufacturing processes. 

### De minimis losses include those from normal material handling operation (e.g., spills from the unloading or transfer of materials from bins or othercontainers. leaks from pipes. valves or otherdevices used to transfer materials): minor leaks of process equipment. storage tanks or containers; leaks from well maintained pump packings and seals; sample purgings; reliefdevice

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### § 371.1 TITLE 6 ENVIRONMENTAL CONSERV AnON

discharges; discharges from safety showers and rinsing andcleaning ofpersonal safety 

### equipment; and rinsate from empty containers or from containers that are rendered empty 

### bythat rinsing; or



### (5) wastewater 

### resulting from laboratory operations containing any toxic (T) wastes listed in section 371.4 ofthis Part. provided that the annualized average flow of 

### laboratory wastewater does not exceed one percent of total wastewater flow into the headworks ofthe facility's wastewater treatment or pretreatment system, or provided the wastes' combined annualizedaverageconcentration does notexceed one mg/l in the headworks of the facility's wastewater treatment or pretreatment facility. The annualized average flow means the total flow registered for the calendar year divided by the numberof operating days ofthe laboratory. The combined annualized average 

### concentration means the weight of the combination of wastes divided by the annualized average flow. Toxic (T) wastes used in laboratories that are demonstrated not to be discharged to wastewater are not to be included in this calculation: or

(6) one or more ofthe following wastes listed in section 371.4(c) of this Partwastewaters from the production of carbamates and carbamoyl 

### oxirnes (EPA 

### Hazardous Waste No, K157)-provided that the maximum weekly usage of formaldehyde, methyl chloride, methylene chloride, and triethylamine (including all amounts that can not 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 dilutions into the headworks of the facility's wastewatertreatment system does not exceed a total offive mg/I; or

(7) wastewaters derived from the treatment of one or more of the following wastes listed in section 371.4(c) of this Part-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. Kl56)-provided, that the maximum concentration offormaldehyde, 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 offive milligrams per liter. (e) Rebuttable presumption for used oil. Used oil containing more than 1.000 ppm total halogens is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in section 371.4. Persons may rebut this presumption by demonstrating that the used oil does not contain hazardous waste (for example, by using an analytical method from SW 

### 846, Third Edition, to show that the used oil does not contain significantconcentrations of halogenated hazardous constituents listed in Appendix 23). EPA Publication SW-846, Third Edition. is available from the Government Printing Office, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954, (202) 783-3238 (document number 955-001-00000-1), (1) The rebuttable presumption does not apply to metalworking oilslfluids containing chlorinated paraffins, ifthey are processed, through a tolling agreement, to reclaim metalworking oils/fluids. The presumption does apply to metalworking oils/fluids if such oils/fluids are recycled in any other manner, or disposed.

(2) The rebuttable presumption does not apply to used oils contaminated with chloroflurocarbons (CFCs) removed from refrigeration units where the CFCs are destined for reclamation. The rebuttable presumption does apply to used oils contaminated with CFCs that have been mixed with used oil from sources other than refrigeration units. (2) A solid waste which is not excluded from regulation under subparagraph (I )(i) of this subdivision becomes a hazardous waste when any of the following events occur; (i) In the case ofa waste listed in section 371.4, when the waste first meets the listing description therein.

(ii) 

### In the case of a mixture of solid waste and one or more listed hazardous wastes, when a hazardous waste listed in section 371.4 is first added to the solid waste.

6050 Conservation 07-15-2005CHAPTER IV QUALITY SERVICES 

### § 

### 371.1

(iii) 

### In the case of any other waste (including a waste mixture), when the waste exhibits any of the characteristics identified in section 371.3. 

### (3) Unless and until it 

### meets the criteriaofparagraph (4) of this subdivision:

(i) 

### A hazardous waste will remain a hazardous waste. (ii) (0) 

### Except as otherwise provided in clause (b) 

### of this subparagraph, paragraph (6)



### or (7) 

### of this subdivision. 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 runoff), is a hazardous waste. (However, materials that arereclaimedfrom solid waste and used beneficially are not solid waste and hence are nothazardous waste underthis provisionunless the reclaimedmaterial is burned for energy recovery or used in a mannerconstituting disposal.)

(b) 

### The following solid waste is not hazardous even though it is generated from the treatment. storage. or disposal of a hazardous waste, unless it exhibits one or more of the characteristics ofhazardous waste: (1) 

### Waste pickle liquor sludge generatedby lime stabilizationof spentpickleliquor 

### from the iron and steel industry (SIC codes 33 I and 332).

(2) Waste from burning any of the materials exempted from regulation by clauses (g)(l

### )(iii)(c) and (d) 

### of this section.

(3) (i) 

### 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 or industrial furnaces (as defined in the definition for industrial furnace in section 370.2[b] of this Title). that are disposed in solid waste management facilities, provided that these residues meet the generic exclusion levels identified in the tables in this clause for all constituents, and exhibitno characteristics ofhazardous waste. Testingrequirements must be incorporated in a facility's waste analysis plan; at a minimum, composite samples of residues must be collected and analyzed quarterly and/or when the process oroperation generatingthe waste changes. Personsclaimingthis exclusionin

an enforcement action will have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements.

Generic exclusion levels for K06

### J and K062

nonwastewaterHTMR residues

Constituent Antimony Arsenic Barium Beryllium Cadmium Chromium (total) Lead Mercury Nickel Selenium Silver Thallium Zinc Maximumforany single composite sample-TCL? (mgll)

0.10 0.50 7.6 0.010 0.050 0.33 0.15 0.009 1.0 0.16 030 0.020 70**07-15~2005** 6051 Conservation

### § 371.1 TITLE 6 ENVIRONMENTALCONSERVAnON

Generic exclusion levels for FOO6 nonwastewater 

### HTMRresidues

Constituent Antimony Arsenic Barium Beryllium Cadmium Chromium (total) Cyanide (total) (mglkg) Lead Mercury Nickel Selenium Silver Thallium Zinc Maximumfor any single composite sample-Ttll.P (mgll)

0.10 0.50 7.6 0.010 0.050 0.33 1.8 0.15 0.009 1.0 0.16 0.30 0.020 70

(ii) A one-time notification and certification mustbe placed in the facility's files and sent to the department for K061, K062 or FOO6 HTMR residues that meet the generic exclusionlevelsfor all constituents and do not exhibitany characteristicsthat are sent to solid waste managementfacilities. Thenotification and certificationthat is placedin the generator's or treater's files mustbe updated 

### ifthe process or operation generatingthe waste changes and/orifthe solid waste managementfacility receiving the waste changes. However, the generatorortreaterneed only notify the department

on an annual basis if such changes occur. Such notification and certification should be sent to the department no laterthan the end of the calendaryear. The notification must include the following information: the name and address ofthe solid waste management facility receiving the waste shipments; the EPA hazardous waste number(s) and tractability group(s) at the initial point of generation; and. the treatment standards applicable to the waste at the initial point ofgeneration. The certification mustbe signedby an authorized representative and must state as follows:

"I certify underpenalty of law that the generic exclusion levels for all constituents have been metwithout 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 offine and imprisonment." (4) Biological treatment sludge from the treatment ofone of the following wastes listed in section 371.4(c) of this Part-organic waste (including heavy ends. still bottoms, light ends, spent solvents, filtrates, and decantates) from the production of carbamates and carbamoyl oximes (EPA HazardousWaste No. K156), and wastewaters from the production ofcarbamates and carbamoyloximes (EPA Hazardous Waste No. KI57).

(5) Catalyst inert support media separated from one of the following wastes listed in section 371.4(c) of this Part-spent hydrotreating catalyst (EPA Hazardous Waste No. KJ71), and spent hydroefining catalyst (EPA Hazardous Waste No. KI72). (4) Any solid waste described inparagraph (3) of this subdivision is not ahazardous waste if it meets the following criteria: (i) In the case of any solid waste. it does not exhibit any of the characteristics of a hazardous waste identified in section 371.3 of this Part. (However, wastes that exhibit a

6052 Conservation 07-15-2005CHAPTER IV QUALITY SERVICES 

### § 371.1

characteristic at the point ofgeneration may still be subject to the requirements of Part 376 of this Title, even 

### ifthey no longerexhibit acharacteristic at the point ofland disposal.)

(ii) 

### In the case ofa waste which is a waste listed under section 371.4. contains a waste 

### listed under section 371.4 or is derived from a waste listed under section 371.4, it 

### also has been excluded from paragraph (3) of this subdivision under section 370.3(a) and (c) of this Title. Section 370.3(c) provides for the petitioning forexclusionofalistedwaste producedat



### aparticular facility. 

### (5) Notwithstanding paragraphs (1) through (4) of this subdivision and provided the debris

asdefinedin Part 376 of this Title does not exhibit acharacteristicidentified at section 371.3 of this Part, the following materials are not subject to regulation under Parts 370 through 374 or 376 of this Title: 

### (i) hazardous debris as defined in Part 376 of this Title that has been treated using one of the required extraction or destruction technologies specified in Table I of section 376.4(g) of this Title; 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 (ii) 

### debris as defined in Part 376 of this Title that the commissioner, considering the extent ofcontamination, has determined is no longer contaminated with hazardous waste. (6) (i) A hazardous waste that is listed in section 371.4 of this Part solely because it exhibits one or more characteristics of ignitability as defined under section 371.3(b) of this Part, corrosivity as defined under section 371.3(c) of this Part, orreactivity as defined under section 371.3(d) of this Part is not a hazardous waste, if the waste no longer exhibits any characteristic of hazardous waste identified in section 371.3 of this Part.

(ii) 

### The exclusion described in subparagraph (i) of thisparagraph also pertains to:

(a) 

### any mixture of a solid waste and a hazardous waste listed in section 371.4 of this Part solely because it exhibits the characteristics of ignitability, corrcsivity, or reactivity as related under clause (I )(ii)(d) of this subdivision; and (b) 

### any solid waste generated from treating, storing. or disposing of a hazardous waste listed in section 371.4 of this Part solely because it exhibits the characteristics of ignitability. corrosivity, or reactivity as regulated under clause (3)(ii)(0) of this subdivision. (iii) Wastes excluded under thus paragraph are subject to Part 376 of this Title (as applicable). even if they no longer exhibit acharacteristic at the point of land disposal.

(iv) Any mixture of a solid waste excluded from regulation under subparagraph (e)(2)(vi) of this section and a hazardous waste listed in section 371.4 of this Part solely becauseit exhibits one or more of thecharacteristics of ignitability, corrosivity, or reactivity as regulated under clause (1

### )(ii)(d) of this subdivision is not a hazardous waste, if the mixture no longer exhibits any characteristic of hazardous waste identified in section 371.3 of this Part for which the hazardous waste listed in section 371.4 ofthis Part was listed. (7) 

### (i) Hazardous waste containing radioactive waste is no longer a hazardous waste when it meets theeligibility criteria and conditions of section 374-1.9 of this Title (Eligible radioactive mixed waste). (ii) The exemption described in subparagraph (i) 

### of this paragraph also pertains to:

(a) 

### any mixture of a solid waste and an eligible radioactive mixed waste; and (b) 

### any solid waste generated from treating, storing, or disposing of an eligible radioactive mixed waste. (iii) Waste exempted under this paragraph must meet the eligibility criteria and specified conditions in section 374-1.9(b)(2) and (3) (for storage and treatment) and in section 374-1.9(i)(I) and (j)(I) (for transportation and disposal) of this Title. Waste that fails to 

### satisfy these eligibility criteria and conditions is regulated as hazardous waste.

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### 6053 Conservation

### §371.1 TITLE 6 ENVIRONMENTAL CONSER VATION



### (e) 

### Exclusions. (1) 

### Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this Part: (i) (a) 

### domestic sewage; and

(b) 

### any mixture of domestic sewage and other wastes that passes through a sewer system to 

### a publicly owned treatment works for treatment. Domestic sewage means untreated sanitary wastes that pass through a sewer system; (ii) 

### industrial wastewater discharges that are surface water point source discharges subjectto permits under article 17 of the Environmental Conservation Law;

Note: This exclusion applies only to the actual point source discharge. It does not exclude industrial wastewaters while they are being collected, stored or treated before discharge, nor does itexclude sludges that are generated by industrial wastewatertreatment. 

### (iii) irrigation return flows; (iv) radioactive materials which are source, special nuclear, or byproduct material as 

### defined by the Atomic Energy Act of 1954, 

### as amended through 1984,42

### USCA 20II 

### et seq, (see section 370.1 

### [e] of this Title);

(v) materials subject to in situ mining techniques which are not removed from the ground as part of the extraction process;

(vi) black liquor that is reclaimed in a Kraft pulping liquor recovery furnace and then used in the Kraft process unless it is accumulated speculatively as defined in paragraph 

### (a)(I) ofthis section;

(vii) spent sulfuric acid used to produce virgin sulfuric acid, unless it is accumulated speculatively as defined in paragraph (a)( I) of this section;

(viii) secondary materials that are reclaimed and returned to the original process or processes in which they were generated where they are reused in the production process provided: (a) 

### only tank storage is involved. and the entire process through completion of reclamationisclosedby being entirely connectedwith pipes or other comparableenclosed

means ofconveyance; (b) 

### reclamation does not involve controlled flame combustion (such as occurs in boilers, industrial furnaces or incinerators); (c) 

### the secondary materials are never accumulated in such tanks for over 12 months withoutbeing reclaimed; and

(d) 

### the reclaimed material is not used to produce a fuel, or used to produce products that are used in a mannerconstituting disposal; (ix) (a) 

### spent wood preserving solutions that have been reclaimed and are reused for their original intended purpose;

(b) 

### wastewaters from the wood preserving process that have been reclaimed and are reused to treat wood; and (c) 

### prior to reuse. the wood preserving wastewaters and spent wood preserving solutions describedin clauses (a) 

### and (b) 

### of this subparagraph. so long as they meet all the following conditions: (1) 

### the wood preserving waterwaters and spent wood preserving solutions are reused on-site at water borne plants in the production process for their original intended purpose; (2) prior to reuse. the wastewaters and spent wood preserving solutions are managed to prevent release to eitherland or groundwater or both:

(3) 

### any unit used to manage wastewaters and/or spent wood preserving solutions prior to 

### reuse can be visually or otherwise determined to prevent such releases;

6054 Conservation 07-15-2005CHAPTER IV QUALITY SERVICES 

### § 371.1

(4) any 

### drip pad used to manage the wastewaters and/or spent wood preserving solutions prior to reuse complies with the standards in section 373-3.23 of this Title, regardless of whether the plant generates a total of less than 100 kg/month ofhazardous waste: and



### (5) prior to operating pursuant to 

### this exclusion, the plant owner or operator submits to the commissioner a one-time notification stating that the plant intends to 

### claim the exclusion, giving the date on which the plant intends tobegin operatingunder 

### the exclusion, and containing the following language: "I have read the applicable regulation establishing an exclusion for wood preserving wastewaters and spent wood preserving solutions and understand it 

### requires me to comply at all times with the conditions set out in the regulation." The plant must maintain acopy ofthat document in its on-site records for aperiod ofno less than three years from the date specified in the notice. The exclusion applies only so long as theplantmeets all oftheconditions. 

### If the plant goes out ofcompliance with any condition, it may apply to the commissioner for reinstatement. The commissioner may reinstate the exclusion upon finding that the plant has returned to compliance with all conditions and that violations are not likely to recur; (x) EPA 

### hazardous waste Nos. K060, K087, KI41. K142. K143. KI44. K145, K147, and K148. and any wastes from the coke by-products processes that are hazardous only because they exhibitthe toxicity characteristic (TC) specifiedin section 371.3(e) of this Part when. subsequent to generation, these materials are recycled to 

### coke ovens. to 

### the tar recovery process as a feedstock to 

### produce coal tar, or mixed with coal tar prior to the tar's sale or refining. This exclusion is conditioned on there being no land disposal of the wastes from the point they are generatedto the pointthey are recycled to coke ovens or tar recovery or refining processes, or mixed with coal tar; and

(xi) nonwastewater splash condenserdross residue from the treatment of K061 in high temperature metals recovery units, providedit is shipped in drums (ifshipped) and not land disposed before recovery;

(xii} (a) 

### oil-bearing hazardous secondary materials ti.e., 

### sludges, byproducts, or spent materials) that are generated at apetroleumrefinery (SIC code 2911) and areinserted into the petroleum refining process (SIC code 2911 including. but not limited to, 

### distillation. catalytic cracking. fractionation. or thermal cracking units [i.e., 

### cokers]) unless the material isplaced on the land. or speculativelyaccumulatedbeforebeing so recycled. Materials inserted into thermal cracking units are excluded under this paragraph, provided that the coke product also does not exhibit a characteristic of hazardous waste. Oil-bearing hazardous secondary materials may be inserted into the same petroleum refinery where they are generated. or sent directly to another petroleum refinery, and still be 

### excluded under this provision. Except as provided in clause (b) 

### of this subparagraph, oil-bearing hazardous secondary materials generated elsewhere in the petroleum industry (i.e., 

### from

sources other than petroleum refineries) are not excluded under this section. Residuals generated from processing or recycling materials excluded under this paragraph. where such materials as generated would have otherwise met alisting under section 371.4ofthis Part. are designated as F037 listed wastes when disposed ofor intendedfor disposal;

(b) 

### recovered oil that is recycled in the same manner and with the same conditions as described in clause (a) 

### ofthis subparagraph. Recovered oil is oil that has been reclaimed from secondary materials (includingwastewater) generatedfrom normal petroleumindustry practices. including refining, exploration and production, bulk storage, and transportation incident thereto (SIC codes 131

### I. 1321. 1381. 1382, 1389,2911,4612.4613.4922. 4923,4789,5171, and 5172). Recovered oil does not include oil-bearing hazardous wastes listed in section 371.4ofthis Part; however. oilrecoveredfrom such wastes may be considered recovered oil. Recovered oil does not include used oil as defined in section**374~2.1** 

### of this Title; (xiii) 

### excluded scrap metal (processed scrap metal. unprocessed home scrap metal, and unprocessed prompt scrap metal) being recycled;

07-J5-2005 

### 6055 Conservation

### § 

### 371.1 TITLE 6 ENVIRONMENTALCONSERVATION



### (xiv) shreddedcircuit boards being recycled provided that they are:

(a) 

### stored in containers sufficient to prevent a release to 

### the environment prior to recovery; and

(b) 

### free of mercury switches, mercury relays and nickel-cadmium batteries and lithium batteries; 

### (xv) condensates derived from the overhead gases from Kraft mill steam strippers that are used to comply with 40 CPR 63.446(e). The exemption applies only to combustion at the 

### mill generating the condensates;

(xvi) comparable fuels or comparable syngas fuels (i.e., 

### comparablc/syngas fuels) that meet the requirements of section 371.4(i) 

### of this Part;

(xvii) petrochemical recovered oil from an associated organic chemical manufacturing facility, where the oil is to be inserted into the petroleum refining process (SIC code 2911) along with nortnal 

### petroleum refinery process streams, provided: (a) 

### the oil is hazardous only because it exhibits the characteristic of ignitability (as 

### defined in section 371.3[b] of this Part) 

### and/or toxicity for benzene (section 371.3[e] of this Part), (waste code D018); and

(b) 

### the oil generated by the organic chemical manufacturing facility is not placed on the land. or speculatively accumulated before being recycled into the petroleum refining process, An 

### associated organic chemical manufacturingfacility is a facility where the primary SIC code is 2869. but where operations may also include SIC codes 2821, 2822, and 2865; and isphysicallyco-located with apetroleumrefinery; and where the petroleum refinery to whichthe oil being recycled is returned also provides hydrocarbon feedstocks to the organic chemical manufacturing facility. 

### Petrochemical recovered oilis oil that has been reclaimed from secondary materials (i.e. 

### sludges. byproducts. or spent materials. includingwastewater) from normal organic chemical manufacturing operations. as well as oil recovered from organic chemical manufacturing processes; (xviii) spent caustic solutions from petroleum refining liquid treating processes used as a feedstock to produce cresylic or naphthenic acid unless the material is placed on the land.

or accumulated speculatively as defined in subdivision (a) of this section, (2) 

### Solid wastes which are not hazardous wastes. The following solid wastes are not hazardous wastes: (i) 

### household waste, including household waste that has been collected. transported. stored. treated, disposed, recovered (e.g., 

### refuse-derived fuel) or reused. Household waste means any waste material (including garbage, trash and sanitary wastes in septic tanks) derived from households (including single and multiple residences, hotels and motels. bunkhouses. ranger stations. crew quarters, campgrounds. picnic grounds and day use recreation areas). A resource recovery facility managing municipal waste shall not be deemed to

### be treating. storing, disposing of, or otherwise managing hazardous waste for the purpose ofregulation. ifsuch facility: (a) 

### receives and burns only:

(1) 

### household waste (from single and multiple dwellings, hotels, motels and other residential sources); and (2) 

### solid waste from commercial or industrial sources that does notcontain hazardous waste; and (b) 

### does not accept hazardous waste and the owner or operator of such facility has establishedcontractual requirements or other appropriate notification orinspectionprocedures to assure that hazardous wastes are not received at or burned in the facility; (ii} 

### solid wastes generated by any of the following and which are returned to 

### the soils as fertilizers: (a) 

### the growing and harvesting of agricultural crops: and (b) 

### the raising of animals. including animal manures;

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### Conservation 07-15-2005CHAPTER IV QUALITY SERVICES 

### §371.1

(iii) mining overburden returned to the mine site; 

### (iv) fly 

### ash waste, bottom ash waste, slag waste. and flue gas emission control waste generatedprimarily from the combustion of coal or otherfossil fuels, except as provided by section**374~L8(m)** of this Title for facilities that burn or process hazardous waste;



### (v) drilling fluids. produced waters and other wastes associated with the exploration, development or production ofcrude oil, natural gas or geothermal energy;



### (vi) solid waste from the extraction. beneficiation and processing of ores and minerals (including coal, phosphate rock and overburden from the mining of uranium ore), except as 

### provided by 

### section 374-1.8(m) of this Title for facilities that burn or process hazardous waste. (a) Forpurposes of this subparagraph beneficiation of ores and minerals is restricted to the following activities: crushing; grinding; washing; dissolution; crystallization; filtration; sorting; sizing; drying; sintering; pelletizing; briquetting; calcining to remove water and/or carbon dioxide; roasting, autoclaving, and/or chlorination in preparation for leaching (exceptwherethe roasting {and/orautoclaving and/orchlorination}/leaching sequence produces a final or intermediate product that does not undergo further beneficiation or processing); gravity concentration; magnetic separation; electrostatic separation; flotation; ion exchange; solvent extraction; electrowinning: precipitation; amalgamation; and heap, dump, vat, tank, and in situ leaching.

(b) Forthe purposes ofthis subparagraph, solid waste from the processing of ores and minerals includes only the following wastes as generated: (I) slag from primary copperprocessing; (2) slag from primary lead processing; (3) red and brown muds from bauxite refining; (4) phosphogypsum from phosphoric acid production; (5) slag from elemental phosphorus production; (6) gasifier ash from coal gasification; (7) process wastewaterfrom coal gasification; (8) calcium sulfate wastewater treatment plant sludge from primary copper processing;

(9) slag tailings from primary copperprocessing; (10) fluorogypsum from hydrofluoric acid production; (J J) process wastewaterfrom hydrofluoric acid production; (12) air pollution control dust/sludge from iron blast furnaces; (13) iron blast furnace slag; (14) treated residue from roastinglIeaching ofchrome ore; (15) process wastewater from primary magnesium processing by the anhydrous process;

(16) process wastewaterfrom phosphoric acid production; (17) basic oxygen furnace and open hearth furnace airpollution control dust/sludge from carbon steel production;

(18) basic oxygen furnace and open hearth furnace slag from carbon steel production;

(19) chloride process waste solids from titanium tetrachloride production; and (20) slag from primary zinc processing; (21) air pollution control dust/sludge from lightweight aggregate production;

07-15-2005 6056.1 Conservation

### §.371.1 TITLE 6 ENVIRONMENTAL CONSERVATION

(c) 

### aresiduederived fromco-processing mineral processing secondary materials with 

### normal beneficiation raw materials or with normal mineral processing raw materials remains excluded under paragraph (2) ofthis subdivision 

### ifthe owneror operator: (1) 

### processes at least 50 percent by weight normal beneficiation raw materials or normal mineral processing raw materials; and



### (2) legitimately reclaims the secondary mineral processing materials; (vii) cement kiln dust waste, except as provided by 

### section 374-1.8(m) of this Title for facilities that burn or process hazardous waste;



### (viii) solid waste which consists ofdiscarded arsenical-treated wood or wood products 

### which fails the test for the toxicity characteristic for hazardous waste codes 0004 through D0l7 and which is not a hazardous waste for any other reason if the waste is generated by persons who utilize the arsenical-treated wood and wood products for these materials' intended end use;

Note: This exclusion does not apply to manufacturers of arsenical treated wood or wood products. 

### (ix) (a) 

### wastes which fail the test 

### for" the toxicity characteristic because chromium is present or are listed in section 371.4 due to the presence of chromium, which do not fail the test for the toxicity characteristic for any other constituentor are not listed due to thepresence of any other constituent, and which do not fail the test for any other characteristic, if it is shown by a waste generator or by waste generators that: (1) 

### the chromium in the waste is exclusively (or nearly exclusively) trivalent chromium; (2) 

### the waste is generated from an industrial process which uses trivalent chromium exclusively (or nearly exclusively) and the process does not generate hexavalent chromium; and

(3) 

### the waste is typically and frequently 

### managed in nonoxidizing environments; (b) 

### specific wastes which meet the standard inclause (a)

### of this subparagraph (so long as they do not fail the test for 

### the toxicity characteristic for any other constituent, and do not exhibit any other hazardous wastecharacteristic) are: (1) 

### the following wastes generated by the following subcategories of the leather tanning and finishing industry: chrome (blue) trimmings, chrome (blue) shavings, sewer screenings and wastewater treatment sludges, generated by the subcategories known as hair pulp/chrome tan/retan/wet finish, hair save/chrome tan/retan/wet finish,

no beamhouse, 

### through-the blue, and shearling;

(2) 

### buffing dust generated by the subcategories listed in subclause (1) 

### of this clause, except for shearling;

(3) 

### waste scrap leather from the leather tanning industry, the shoe manufacturing industry, and other leather product manufacturing industries; and

(4) 

### wastewater treatment sludges from the production of titanium dioxide pigment using chromium-bearing ores by the chloride process; (x) petroleum-contaminated media and debris that fail the test for the toxicity characteristic of section 371.3(e) (hazardous waste codes 0018 through 0043 only) and are subject to thecorrective action regulations under 40 CFR 

### part 280;



### (xi) non-teme plated used oil filters that are not mixed with wastes listed in section 371.4 of this Part if these oil filters have been gravity hot-drained using one of the following methods: (a) 

### puncturing the filter anti-drain back valve or the filter dome end and hot-draining: (b) 

### hot-draining and crushing: (c) 

### dismantling and hot-draining; or (d) 

### any otherequivalent hot-draining 

### method that will remove used oil:

6056.1 

### Conservation 07-15-:1005CHAPTER IV QUALITY SERVICES 

### § 

### 371.1

(xii) used chlorofluorocarbon refrigerants from totally enclosed heat transfer equipment, including mobile air conditioning systems, mobile refrigeration, and commercial and industrial airconditioning and refrigeration systems that usechlorofluorocarbons as the heat 

### transfer fluid in a refrigeration cycle, provided the refrigerant is reclaimed for further use; 

### and

(xiii} leachate or gas condensate collectedfrom landfills where certain solid wasteshave 

### been disposed, provided that: (a) 

### the solid wastes disposed would meet one or more of the listing descriptions for hazardous waste codes K169. K 170. K171. KIn. 

### K174, K175, K176. KI77. and K178. if 

### these wastes had been generated after the effective date of the listing. (b) 

### the solid wastes described in clause (a) 

### of this subparagraph were disposed prior to the effective date of the listing; (c) 

### the leachate or gas condensate do not exhibit anycharacteristic ofhazardouswaste nor are derived from any other listed hazardous waste:

(d) 

### discharge of the leachate or gas condensate, including leachate or gas condensate transferred from the landfill to 

### a POTW by truck, rail. or dedicated pipe, is subject to 

### regulation under section 307(b) or 402 of the Federal Clean Water Act and the State Pollution Discharge Elimination System (SPDES), Pans 750 through 757 of this Title; and (e) 

### as of February 13,2001, leachate or gas condensate derived from KI69-K172 is no longer exempt if it is stored or managed in a surface impoundment prior to 

### discharge. After November 21, 2003, leachate or gas condensate derived from K176, K177. and K178 will not longer be

### exemptifit is stored or managed in a surfaceimpoundment prior to discharge. There is one exception: if the surface impoundment is used to 

### temporarily store leachate or gas condensate in response to 

### an emergency situation (e.g., 

### shutdown of wastewater treatment system), provided the impoundment has a double liner, and provided the leachate or gas condensate is removed from theimpoundment and continues to 

### be managed incompliance with the conditions of this clause after the emergency ends.

07-15-2005 6056.3 ConservationCHAPTER IV QUALITY SERVICES 

### § 371.1

(3) Hazardous wastes which are exempted from certainregulations.

0) A hazardous waste which is generatedin aproduct or raw material storage tank, in a product or raw material transport vehicle or vessel, in a productor raw material pipeline, or in amanufacturing process unit or an associated non-waste treatmentmanufacturing unit, is not subjectto regulation under Parts 372, 373, and 376 ofthis Title until it leaves the unit in 

### which it 

### was generated. However, this exemption does not apply if 

### the unit is a surface impoundment, or

### ifthe hazardous waste remains in the unit more than 90 days after the unit



### ceases to 

### be operated for manufacturing, or for storage or transportation of product or raw materials. (4) Samples.

(i) 

### Except as provided insubparagraph (ii) 

### of this paragraph, a sample of solid waste or a sample of water, soil or air, which is collectedfor the sale purpose of testing to determine its characteristics, or

### composition. is not subject to 

### anyrequirements of this Part or of Parts 372, 373. and 376 ofthis Title, when: (a) 

### the sample is being transported to alaboratory forthe purpose of testing; (b) 

### the sample is being transportedback to the sample collectorafter testing; (c) 

### the sample is being stored by the sample collectorbefore transport to alaboratory for testing;

(d) 

### the sample is being stored in alaboratory before testing; (e) 

### the sample is being stored in alaboratory after testing but before it is returned to the sample collector; or

if) 

### the sample is being stored temporarily in the laboratory after testing for a specific purpose (for example, untilconclusionof a court case orenforcementaction where further testing of the sample may be necessary). (ii) 

### In order to qualify for the exemption in clauses (i)(a) 

### and (b) 

### of this paragraph, a sample collector shipping samples to a laboratory, or a laboratory returning samples to 

### a sample collector, must: (a) 

### comply with the New York State DepartmentofTransportation (NYSDOT), U.S. Department of Transportation (USDOT), U.S. Postal Service (USPS), or any other applicable shipping requirements; or

(b) 

### comply with the following requirements if the sample collector determines that NYSDOT, USDOT, USPS, or other shipping requirements do not apply to the shipment of the sample: (1) 

### assure that the following information accompanies the sample:

(i) 

### the sample collector's name, mailing address and telephone number; (ii) 

### the laboratory's name, mailing address and telephone number; (iii) 

### the quantity of the sample; (iv) 

### the date of shipment; and (v) 

### a description of the sample; and (2) 

### package the sample so thatitdoes not leak, spill orvaporize from its packaging. (iii) This exemption does not apply if the laboratory determines that the waste is hazardous but the laboratory is no longer meeting any of the conditions stated in subparagraph (i) ofthis subparagraph.



### (iv) Treatability study samples,

(a) 

### Except as provided in clause (b) 

### of this subparagraph, persons who generate or collect samples for the purpose of 

### conducting treatability studies, as defined in section 370.2(b) of this Title, are not subject to any requirement of this Part or 

### Part 372 nor are such samples included in the quantity determinations of subdivision (f) 

### of this section and section 372.2(a)(8) ofthis Pan when:

6057 

### Conservation

### §371.1 TITLE 6 ENVIRONMENTAL CONSERVATION

(1) the sample isbeingcollected and preparedfortransportation by the generatoror sample collector;

(2) the sample is being accumulated or stored by the generator or sample collector priorto transportation to a laboratory or testing facility; or 

### (3) the sample is being transported to the laboratory or testing facility for the purpose of conducting a treatability study. (b) 

### The exemption in clause (a) 

### of this subparagraph is applicable to samples of hazardous waste being collected and shipped for the purpose ofconducting treatability 

### studies provided that: (1) 

### the generator or sample collector uses (in "treatability studies") no more than 10,000kilograms of media contaminated with non-acute hazardous waste, 1,000 kilograms of any non-acute hazardous waste otherthan contaminated media, I kilogram of acutehazardous waste, or 2,500kilograms ofmediacontaminatedwith acute hazardous waste for each process being evaluated for each generated waste stream;

(2) the mass of each sample shipment does not exceed 10,000 kilograms; the 10.000 kilogram quantity may be all media contaminated with non-acute hazardous waste, or may include 2,500 kilograms of media contaminated with acute hazardous waste, I ,000 kilograms ofhazardous waste, and I kilogram ofacute hazardous waste; and

(3) the sample must be packaged so that it will not leak, spill, or vaporize from its packaging during shipment and the requirements ofitem (i) or (it) of this subclause are met; (i) the transportation ofeach sample shipmentcomplies with U.S. Departmentof

Transportation (DOT), U.S. Postal Service (USPS), or any other applicable shipping requirements; or (ii) if the DOT, USPS, or other shipping requirements do not apply to the shipmentof the sample, the following information must accompany the sample; (A) the name, mailing address, and telephone number of the originator ofthe sample;

(B) the name, address, and telephone number ofthe facility that will perform the treatability study;

(C) the quantity of the sample; (D) the date of shipment; and (E) a description of the sample, including its EPA hazardous waste number; (4) the sample is shipped to a laboratory or testing facility which is exempt under subparagraph (v) of this paragraph or has an appropriate RCRA permit or interim status;

(5) the generator or sample collector maintains the following records for a period ending three years after completion ofthe treatability study: (i) copies ofthe shipping documents; (ii) a copy of the contract with the facility conducting the treatability study; (iii) documentation showing:

(A) the amount ofwaste shipped under this exemption; (B) the name, address, and EPA identification number of the laboratory or testing facility that received the waste;

(C) the date the shipment was made; and (D) whether or not unused samples and residues were returned to the generator:

6058 ConservationCHAPTER IV QUALITY SERVICES 

### § 371.1

(6) 

### the generatorreports the information required under item (5)(iii) 

### ofthis clause in its annual report. (c) 

### The commissioner may grant requests, on a case-by-case basis, for up to an additional two years for treatability studies involving bioremediation. The commissioner may grant requests, on acase-by-casebasis, forquantity limits in excess of those specified in subclauses (iv)(b)(l) and (2) and clause (v)(d) ofthis paragraph, for up to an additional 5,000kilograms of media contaminated with non-acute hazardous waste, 500 kilograms ofnon-acute hazardous waste, 2,500kilograms ofmediacontaminatedwith acute hazardous waste and 1 kilogram ofacute hazardous waste: (1) 

### In response to 

### requests for authorization to 

### ship, store and conduct treatability studies on additional quantities in advance of commencing treatability studies. Factors to be considered in reviewing such requests include the nature of the technology, the type of process (e.g.. 

### batch versus continuous), size of the unit undergoing testing (particularly in relation to scale-up considerations). the time/quantity of material required to reach steady state operating conditions, or test design considerations such as

mass balance calculations.

(2) In response to requests for authorization to ship, store and conduct treatability studies on additional quantities after initiation or completion of initial treatability studies, when: There has been an equipment or mechanical failure during the conduct of a treatability study; there is a need to verify the results of a previously conducted treatability study; there is a need to study and analyze alternative techniques within apreviously evaluated treatment process; or there is a need to do further evaluation ofan ongoing treatability study to determine final specifications for treatment. (3) The additional quantities and time frames allowed in subclauses (1) 

### and (2) of this clause are subjecttoall the provisionsin clause (a) 

### and subclauses (b)(2)-(6) 

### ofthis subparagraph. The generator or sample collector must apply to the commissioner and provide in writing the following information: (i) 

### the reason why the generator or sample collectorrequires additional time or quantity of sample for the treatability study evaluation and the additional time or quanity needed;

(ii) 

### documentation accounting for all samplesofhazardous waste from the waste stream which have been sent for or undergone treatability studies including the date each previous sample from the waste stream was shipped, the quantity of each previous shipment, the laboratory or testing facility to 

### which it was shipped, what treatability study processes were conducted on each sample shipped, and the available results of each treatability study; (iii) 

### a description of the technical modifications or change in specifications which will be evaluated and the expectedresults;

(iv) 

### if such further study is being required due to 

### equipment or mechanical failure, the applicantmust include informationregarding the reason for the failure or breakdown and also include what procedures or equipmentimprovements have been made to protect against furtherbreakdowns; and (v) 

### such otherinformation that the commissionerconsiders necessary. (v) Samplesundergoing treatability studies atlaboratories and testing facilities. Samples undergoing treatability studies and the laboratory or testing facility conducting such treatment studies (to 

### the extent such facilities are not otherwise subject to RCRA requirements) are not subjectto any requirements ofthis Part ofParts**370~374** 

### and Part 376, provided that the conditions of clauses (a) 

### through (k) 

### ofthis subparagraph are mel. A mobile treatment unit (MTU) may qualify as a testing facility subject to 

### clauses (a) 

### through (k) 

### of this subparagraph. Where a group ofMTUs are located at the same site, the limitations specified in (a) 

### through (k) 

### of this subparagraph apply too the entire group of MTUs collectively as if the group were one MTU



### 6059 Conservation

### § 

### 371.1 TITLE 6 ENVIRONMENTAL CONSERVATION

(a) No less than 45 days beforeconducting treatability studies, the facility notifies the commissionerin writingthat itintends to conducttreatability studies underthis paragraph. (b) 

### The laboratory or testing facility conducting the treatability study has an EPA identification number. (c) 

### No more than a total of 10,000 kilograms of "as received" 

### media contaminated with 

### non-acute hazardous waste, 2,500 kilograms of media contaminated with acute hazardous waste or 250 kilograms of other "as received" hazardous waste is subject to initiation of treatment in all treatability studies in any single day. "As received" waste refers to the waste as received in the shipment from the generator or sample collector. (d) The quantity of"asreceived" hazardous waste stored atthefacility for the purpose ofevaluation in treatability studies does not exceed 10,000 kilograms, the total ofwhich

can include 10,000 kilograms ofmedia contaminated with non-acute hazardous waste, 2,500 kilograms ofmedia contaminated with acute hazardous waste, 1,000kilograms of non-acute hazardous wastes other than contaminated media, and one kilogram of acute hazardous waste. This quantity limitation docs not include treatment materials (including non-hazardous solid waste) added to "as received" hazardous waste. (e) No more than 90 days have elapsed sincethe treatability study for the sample was completed, or no more than one year (two years for treatability studies involving bioremediation) have elapsed since the generatoror sample collector shipped the sample to the laboratory or testing facility, whichever date first occurs. Up to 500 kilograms of treated material from a particular waste stream from treatability studies may be archived for future evaluation up to five years from the date of initial receipt. Quantities of materials archived are counted against the total storage limitfor the facility,



### (f) The treatability study does not involve the placement ofhazardous waste on the land or open burning ofhazardous waste.

(g) The facility maintains records for three years following completion ofeach study that show compliance with the treatment rate limits and the storage time and quantity limits. The following specific information must be included for each treatability study conducted: (I) the name, address, and EPA identification number ofthe generator or sample collector ofeach waste sample;

(2) the date the shipment was received; (3) the quantity ofwaste accepted; (4) the quantity of"as received" waste in storage each day; (5) thedate the treatment study was initiated and the amountof"as received" waste introduced to treatment each day;

(6) the date the treatability study was concluded; (7) the date any unused sample or residues generated from the treatability study

were returnedto the generator or samplecollector, or, ifsentto adesignatedfacility, the

name ofthe facility, and the EPA identification number. (h) The facility keeps. on-site, a copy ofthe treatability study contract and all shipping papers associated with the transport of treatability study samples to and from the facility for a period endingthree years from the completion date ofeach treatability study,

(i) The facility prepares and submits a report to the commissionerby March 15th of each year that estimates the number of studies and the amount ofwaste expected to be used in treatability studies during the currentyear, and includes the following information for the previous calendaryear: (1) the name, address, andEPA identificationnumber ofthefacility conducting the treatability studies;

(2) the types (by process) oftreatability studies conducted;

6060 Conservation 10-31-98CHAPTER IV QUALITY SERVICES 

### § 371.1

(3) the names and addresses of persons for whom studies have been conducted (including their EPA identification numbers):

(4) 

### the total quantity of waste in storage each day; (5) 

### the quantity and types ofwaste subjected to treatability studies; (6) 

### when each treatability study was conducted: and (7) 

### the final disposition of residues and unused sample from each treatability study. (j) 

### The facility determines whether any unused sample or residues generated by the treatability study are hazardous waste under subdivision (d) of this section and, if so are subject to Parts 371-374 and Part 376, unless the residues and unused samples are returned to the sample 

### originatorunder the subparagraph (4) (iv) of this subdivision exemption.

(k) 

### The facility notifies the commissioner by letter when the facility is no longer planning to conduct any treatability studies at the site. (0 

### Special requirements for hazardous waste generated by conditionally exempt small quantity generators. (I) 

### Ageneratoris aconditionallyexempt small quantity generatorin a calendarmonth if no more than 100kilograms ofhazardous waste are generatedin that month.

(2) Except as providedin paragraphs (5), 

### (6), (7), and (10) of this subdivision, aconditionally exempt small quantity generator's hazardous wastes are not subject to regulation under Part 372 through Subpart 374-3 and Part 376 of this Title.

(3) When making the quantity determinations of this Part and Part 372 ofthis Title, the generatormust include all hazardous waste that it generates, excepthazardous waste that: (i) is exemptfrom regulation underparagraphs (e)(3) and (4), subparagraphs (g)(1)(iii), (h)(1)(i) of this section or section 371.4(e) of this Title; or

(ii) is managed immediately upon generation only in on-site elementary neutralization units, wastewatertreatmentunits, or totally enclosedtreatmentfacilities as definedin section 370.2 of this Title; or

(iii) is recycled, without prior storageoraccumulation, only in an on-siteprocess subject to regulation under subparagraph (g)(3)(ii) of this section; or

(iv) is used oil managed under the requirements of subparagraph (g)(1)(iv) of this section and Subpart 374-2 of this Title; or

(v) is spent lead-acid batteries managed under the requirements of section 374-1.7 of this Title; or

(vi) is universal waste managed under subdivision U) 

### ofthis section and Subpart 374-3 of this Title. (4) Indeterminingthe quantity ofhazardous waste generated, ageneratorneednot include:

(i) hazardous waste when it is removed from on-site storage; (ii) hazardous waste produced by on-site treatment (includingreclamation) of the generator's hazardous waste, so long as the hazardous waste that is treated was counted once; or

(iii) spent materials that are generated, reclaimed, and subsequently reused on-site, so long as such spentmaterials have been counted once. (5) If a conditionally exempt small quantity generator generates acute hazardous waste in quantities greaterthan that set forth below in a calendar month, all quantities of that waste are subjectto regulation under Parts 372, 373. 374, and 376 of this Title: (i) a total of one kilogram of acute hazardous waste listed in section 371.4(b), (c) and (d)(5) of this Part;

(ii) a total of 100 kilograms of any residue or contaminated soil, waste or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in section 371.4(b), (c) and (d)(5) of this Part. (6) Aconditionally exempt small quantity generatorwho generates acute hazardous wastes in quantities equal to or less than those set forth in subparagraph (5)(i) or (ii) of this

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subdivision, may be excluded from full regulation under this subdivision, if the following requirements are complied with: (i) section 372.2(a)(2) of this Title; \ (ii) the conditionally exempt small quantity generator may accumulate acute hazardous waste on-site. If acutely hazardous wastes are accumulated in quantities greater than those set forth in subparagraph (5)(i) or (ii) of this subdivision, all ofthose accumulated wastes are subject to regulation underParts 372 through 374, and 376 of this Title. The time period for accumulation ofwastes on-site given in section 372.2(a)(8)(ii) of this Title begins when the accumulated wastes exceed the applicable exclusion limit;

(iii) a conditionally exempt small-quantity generator may either treat or dispose of the acute hazardous wastes in an on-site facility, or ensure delivery to an off-site treatment, storage or disposal facility eitherofwhich, iflocated in the U.S., is: (a) permittedunderPart 373 of this Title; (b) in interim status underPart 373 of this Title; (c) authorized to manage hazardous waste by a state with ahazardous waste management program approved underRCRA, iflocated outside New York;

(d) authorized to receive hazardous waste underRCRA; (e) permitted by New York State pursuant to Part 360 of this Title to manage municipal or industrial solid waste, and authorized to receive such wastes, or permitted, licensed, or registered by a state other than New Yorkto manage municipal solid waste if managedin a solid waste landfill subjectto 40 CFRpart 258, as incorporatedby reference in section 370.1 (e) of this Title, or registered by a state to manage industrial solid waste if managed in an industrial waste disposal unit subject to 40 CFR sections 257.5 through 257.30, as incorporatedby reference in section 370.1 (e) of this Title;

(j) a facility which beneficially uses orreuses, or legitimately recycles or reclaims its waste; or treats its waste prior to beneficial use or reuse, or legitimate recycling or reclamation;

(g) afacility authorizedby the departmentto receive such wastes, pursuant to Subpart 373-4 of this Title; or

(h) for universal waste managed under Subpart 374-3 of this Title, a universal waste handler or destination facility subject to the requirements of Subpart 374-3 of this Title; (iv) in ensuring delivery of this waste to an off-site treatment, storage, or disposal facility, generators must: (a) transport the waste themselves (see section 364.1[e][3][i] of this Title); or (b) use atransporter authorized underPart 364 of this Title to transport the particular waste(s) offered for shipmentto the designated facility. (7) In order for non-acute hazardous waste generated by a conditionally exempt smallquantity generator in quantities of less than 100 kilograms of hazardous waste during a calendar month to be excluded from full regulation under this subdivision, the generator must comply with the following requirements: (i) comply with section 372.2(a)(2) of this Title; (ii) the conditionally exempt small quantity generatormay accumulate hazardous waste on-site. Ifhe or she accumulates at any time more than a total of 1,000 kilograms of their

own hazardous wastes, all ofthose accumulated wastes are subject to regulation under the special provisions of Part 372 of this Title applicable to generators ofbetween]00 and] ,000 kg ofhazardous waste in a calendar month as well as the requirements ofParts 373 and 376 of this Title, and the applicable notificationrequirements of section 3010 ofRCRA. Thetime period of section 372.2(a)(8)(iii) ofthis Title for accumulation of wastes on-site begins for conditionally exempt small quantity generators when the accumulated wastes exceed] ,000 kilograms;

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### § 371.1

(iii) conditionally exempt small quantity generator may either treat or dispose of their hazardous waste in an on-site facility, or ensure delivery to an off-site treatment, storage or disposal facility, either of which, if located in the U.S., is: (a) 

### permittedunder Part 373 of this Title; (b) 

### in interim status under Part 373 of this Title; (c) 

### authorized to manage hazardous waste by a state with ahazardous waste management program approvedunder RCRA, iflocated outside New York;

(d) 

### authorized to receive hazardous waste under RCRA; (e) 

### permitted by New York State pursuant to Part 360 of this Title to manage municipal or industrial solid waste, and authorized to receive such wastes, or permitted, licensed orregistered by a state other than New York to manage municipal solid waste if managed in a solid waste landfill subject to 40 CPR Part 258, as incorporatedby reference in section 370.1(e) of this Title, orregisteredby a state to manage industrial solid waste if managed in an industrial waste disposal unit subject to 40 CPR sections 257.5 through 257.30, as incorporatedby reference in section 370.1(e) of this Title;

(j) a facility which beneficially uses or reuses, or legitimately recycles orreclaims its waste; or treats its waste prior to beneficial use or reuse, or legitimate recycling or reclamati on;

(g) 

### a facility authorizedby the departmentto receive such wastes, pursuantto Subpart 373-4 of this Title; or

(h) 

### for universal waste managedunder Subpart 374-3 of this Title, a universal waste handler or destination facility subjectto the requirements of Subpart 374-3 of this Title; (iv) in ensuring delivery of this waste to an off-site treatment, storage, or disposal facility, generators must: (a) 

### transportthe waste themselves (see section 364.1[e][3][i] of this Title); or (b) 

### use atransporter authorized under Part 364 of this Title to transport the particular waste(s) offered for shipmentto the designated facility. (8) Hazardous waste subjectto the reduced requirements of this subdivision may be mixed with non-hazardous waste and remain subject to these reduced requirements even though the resultant mixture exceeds the quantity limitation identified in this subdivision, as long as the mixture meets none of thecharacteristics ofhazardous wastes identifiedin section 371.3 of this Part, or such mixing occurs at a facility regulated under Subpart 373-4 orpermittedunder Part 373 of this Title.

(9) Ifaconditionally exempt small-quantity generator mixes with a hazardous waste that exceeds a quantity exclusion level of this subdivision, the mixture is subject to full regulation under this Title.

(10) If aconditionally exempt small quantity generator's wastes are mixed with used oil, the mixture is subject to Part 360 and Subpart374-2 of this Title if it is destinedto be burned for energy recovery. Any material produced from such a mixture by processing, blending, or other treatmentis also so regulated if it 

### is destined to be burned for energy recovery. (g) 

### Requirementsforrecyclable materials.

(1) (i) 

### Hazardous wastes that are recycled are subject to the requirements for generators, transporters, and storage facilities of paragraphs (2) and (3) of this subdivision, except for the materials listed in subparagraphs (ii) 

### and (iii) of this paragraph. Hazardous wastes that are recycled will be known as recyclable materials.

(ii) 

### The following recyclable materials are not subject to the requirements of this subdivision but are regulated under sections 374-1.3 through 374-1.8, Subpart 374-2 and all applicable provisions in Subpart 373-1 and Parts 621 and 624 of this Title: (a) 

### recyclable materials used in amannerconstituting disposal (see section 374-1.3 of this Title);

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(b) 

### hazardous wastes burned for energy recovery in boilers and industrial furnaces that are not regulated under sections 373-2.15 and 373-3.15 of this Title (see section 374-1.8 ofthis Title); \

(c) [Reserved] (d) 

### recyclable materials from which precious metals are reclaimed (see section 374-1.6ofthisTitle); and

(e) 

### spent lead-acid batteries that are being reclaimed (see section 374-1.7 of this Title). (iii) The following recyclable materials are not subject to regulation under Part 372 through Subpart 374-3 and Part 376 of this Title provided that the waste is transported by a hauler complying with any applicable waste hauler permit requirements in Part 364 ofthis Title:(a) 

### industrial ethyl alcohol that is reclaimed except that, unless provided otherwise in

an international agreement as specified in section 372.5 ofthis Title: (1) 

### a person initiating a shipment for reclamation in a foreign country, and any intermediary arranging for the shipment, must comply with the requirements applicable to a primary exporter in section 372.5(c), (f)(l )(i)-(iv), (vi), (f)(2), and (g) of this Title, export such materials only upon consent of the receiving country and in conformancewith the EPA acknowledgment of consent to the shipment to the transporter transporting the shipment for export; and

(2) transporters transporting a shipment for export may not accept a shipment if he or she knows the shipment does not conform to the EPA acknowledgment of consent, must ensure that a copy of the EPA acknowledgment of consent accompanies the shipment and must ensure that it is 

### delivered to the facility designated by the person initiating the shipment; (b) 

### scrap metal that is not excluded under subparagraph (e)(I)(xiii) of this section; (c) 

### fuels produced from the refining of oil-bearing hazardous waste along with normal process streams at a petroleum refining facility if such wastes result from normal petroleum refining, production, and transportation practices (this exemption does not apply to fuels produced from oil recovered from oil-bearing hazardous waste, where such recovered oil is already excluded under subparagraph [e][1J[xii] ofthis section);

(d) (1) 

### hazardous waste fuel produced from oil-bearing hazardous wastes frompetroleum refining, production, or transportation practices, or produced from oil reclaimed from such hazardous wastes, where such hazardous wastes are reintroduced into a process that does not use distillation or does not produce products from crude oil so long as the resulting fuel meets the used oil specification under section 374-2.2(b) of this Title and so long as no other hazardous wastes are used to produce the hazardous waste fuel:

(2) 

### hazardous waste fuel produced from oil-bearing hazardous waste from petroleum refining production, and transportation practices, where such hazardous wastesare reintroduced into a refining process after a point at which contaminants are removed, so long as the fuel meets the used oil fuel specification under section 374-2.2(b) of this Title: and

(3) 

### oil reclaimed from oil-bearing hazardous wastes from petroleum refining, production, and transportation practices, which reclaimed oil is burned as a fuel without reintroduction to a refining process, so long as the reclaimed oil meets the used oil fuel specification under section 374-2.2(b) of this Title. (iv) 

### Used oil that is recycled and is also a hazardous waste solely because it exhibits a hazardous waste characteristic is not subject to the requirements of Parts 370 through 373, Subpart 374-1 and Part 376 of this Title, but is regulated under Part 364 and Subparts 360-14 and 374-2 of this Title. Used oil that is recycled includes any used oil which is reused, following its original use, for any purpose (including the purpose for which the oil was

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### § 371.1

originally used). Such term includes, but is not limited to, oil which is rerefined, reclaimed, burned for energy recovery, or reprocessed.

(v) Hazardous waste, that is exported to or imported from designated member countries of the Organization for Economic Cooperation and Development (OECD) (as defined in section 372.5[h][l] of this Title) for purpose of recovery is subject to the requirements of section 372.5 of this Title, if it is subject to either the manifesting requirements of Part 372 of this Title, or to the universal waste management standards of Subpart 374-3 of this Title.(2) Generators and transporters of recyclable materials are subject to the applicable requirements of Part 372 of this Title and the notification requirements under section 3010 of RCRA (see section 370.1[e) of this Title), except as provided in paragraph (I) 

### of this subdivision.

(3) (i) Owners and operators of facilities that store recyclable materials before they are recycled are regulated under all applicable provisions of sections 373-2.1 through 373-2.12, Subpart 373-1, sections 373-3.1 through 373-3.13, Parts 374, 376, 621 and 624 of this Title, sections 373-2.27, 373-2.28, 373-2.29, 373-3.27, 373-3.28 and 373-3.29 of this Title, and the notification requirements under section 3010 of RCRA (see section 370.1[e] of this Title), except as provided in paragraph (I) 

### of this subdivision. (The recycling process itself is exempt from regulation except as provided in paragraph [4] of this subdivision.)

(ii) Owners or operators of facilities that recycle recyclable materials without storing them before they are recycled are subject to the following requirements, except as provided in paragraph (I) 

### of this subdivision: (a) 

### notification requirements under section 3010 of RCRA (see section 370.1[e] of this Title);

(b) 

### sections 373-2.5 and 373-3.5, and section 373-3.5(b) (dealing with the use of the manifest and manifest discrepancies) of this Title; and

(c) 

### paragraph (4) of this subdivision.(4) Owners or operators of facilities subject to RCRA permitting requirements with hazardous waste management units that recycle hazardous wastes are subject to the requirements of sections 373-2.27, 373-2.28, 373-3.27 and 373-3.28 of this Title. (h) 

### Residues of hazardous waste in empty containers. (l) 

### (i) Any hazardous waste remaining in either an empty container or an inner liner removed from an empty container, as defined in paragraph (2) of this subdivision, is not subject to regulation under this Part and Parts 372 through 373, and 376 of this Title. (Note: 

### The discarding of the empty drum or inner liner itself may be subject to the disposal requirements of Part 360 and thetransportation requirements of Part 364 of this Title.)

(ii) Any hazardous waste in either acontainerthat is not empty or an inner liner removed from a container that is not empty, as defined in paragraph (2) of this subdivision, is subject to regulation under this Part and Parts 372 through 373, and 376 of this Title. (2) (i) A container or inner liner removed from a container that has held any hazardous waste, except a waste that is compressed gas or that is identified as an acute hazardous waste listed in section 371.4(b)-(d) of this Part, is empty if: (a) 

### all wastes have been removed that can be removed using the practices commonly employed to remove materials from that type of container, e.g., 

### pouring, pumping and aspirating; and

(b) 

### no more than 2.54 centimeters (one inch) of residue remains on the bottom of the container or inner liner: or (c) (1) 

### no more than three percent by weight of the total capacity of the container remains in thecontaineror inner liner if the container is less than or equal to 110 gallons in size; or

(2) 

### no more than 0.3 percent by weight of the total capacity of the container remains in thecontaineror inner liner if the container is greater than 110 gallons in size.

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