CHAPTER IV QUALITY SERVICES

PART 371

IDENTIFICATION AND LISTING 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 of subdivisions (c) and (g) of this section:

(1) A material is accumulated speculatively if it is accumulated before being recycled. A

material is not accumulated speculatively, 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 general public's use 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) A spent material is any material that has been used and as a result of contamination can

no longer serve the purpose for which it was produced without processing.

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(8) A material is used or reused if it is either:

(i) employed as an ingredient (including use as an intermediate) in an industrial 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 if distinct 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 conditioner in wastewater treatment).

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

unprocessed prompt scrap metal.

(10) Processed scrap metal is scrap metal which has been manually or physically 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 metal is scrap metal as generated by steel mills, foundries, and refineries

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 of solid 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 discarded material is any material which is:

(i) abandoned as explained in paragraph (3) of this subdivision; or

(ii) recycled as explained in 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 or incinerated.

(4) Materials are solid waste if they are recycled-or accumulated, stored or treated before

recycling-as specified in subparagraphs (i)-(iv) of this paragraph.

(i) Used in a manner 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).

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(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 manner of use.

(ii) Burning for energy recovery.

(a) Materials noted with an asterisk in column 2 of Table 1 are solid wastes when they

are:

(1) burned to recover energy; or

(2) used to produce a fuel or are otherwise contained in fuels (in which case the fuel

itself remains a solid waste).

(b) However, commercial products listed in section 371.4(d) of this Part are not solid

waste if they are fuels.

(iii) Reclaimed materials noted with an asterisk in column 3 of Table 1 are solid wastes

when reclaimed.

(iv) Materials accumulated speculatively noted with an asterisk in column 4 of Table 1

are solid waste when accumulated speculatively.

(5) Inherently waste-like materials. The following materials are solid wastes when they are

recycled in any manner:

(i) Hazardous waste numbers F02D, F021 (unless used as an ingredient to make a

product at the site of generation). P022, P023, P026 and P028.

(ii) Secondary materials fed to a halogen acid furnace that exhibit a characteristic of a

hazardous waste or are listed as a hazardous waste as defined in section 371.3 or 371.4 ofthis

Part, except for brominated material that meets the following criteria:

(a) the material must contain a bromine concentration of at least 45 percent;

(b) the material must contain less than a total of one percent of toxic organic compounds listed in Appendix 23; and

(c) the material is processed continually on-site in the halogen acid furnace via direct

conveyance (hard piping).

(iii) The commissioner will use the following criteria to 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 found in raw materials or products in smaller concentrations) 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 recycled by being:

(a) used or reused as ingredients in an industrial process to make a product, provided

the materials are not being reclaimed; or

(b) used or reused as effective substitutes for commercial products; or

(c) returned to the original process from which they are generated, without first 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 must be managed such that there is no placement on the

land.

(ii) The following materials are solid wastes, even ifthe recycling involves use, 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, or contained in fuels;

or

(c) materials accumulated speculatively; or

(d) materials listed in subparagraphs (5)(1) and (ii) of this subdivision.

(7) Parties who raise a claim that 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, must notify the department, in writing, before utilizing the 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 actions to enforce regulations, implementing article 27, who raise a claim that a certain

material is not a solid or hazardous waste, or is exempt or conditionally exempt from regulation, when intended for reclamation, recycling, or reuse, must demonstrate:

(i) for on-site reclamation, recycling, or reuse, that the party meets the tenus of the

exclusion or exemption; or

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

(a) that there is a known market or disposition for the material;

(b) that the owner or operator of the receiving facility has the necessary equipment

and capacity to process the entire volume of material offered; and

(c) through appropriate documentation, such as contracts, that the receiving party 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 a characteristic of * * * hazardous waste

Byproducts listed in 371 A(b) and (c) * * * Byproducts exhibiting a characteristic of * * * hazardous waste

Commercial chemical products listed in * * 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

processed scrap metal are defined in subdivision (a) of this section.

(d) Definition a/hazardous waste. (1) A solid waste, as defined in subdivision (c) of this

section, is a hazardous waste if:

(i) it is not excluded from regulation as a hazardous waste under paragraph (e)(2) of this

section; and

(ii) it meets any of the following criteria:

(a) it exhibits any of the characteristics of hazardous waste identified in 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) of this section and

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any other solid waste exhibiting a characteristic of hazardous waste under section 371.3 of

this Part is a hazardous waste only if it exhibits a characteristic that would not have been

exhibited by the excluded waste alone if such mixture had not occurred, or if it continues

to exhibit any of the characteristics exhibited by the nonexcluded wastes prior to mixture.

Further, for the purposes of applying the toxicity characteristic to such mixtures, the

mixture is also a hazardous waste if it exceeds the maximum concentration for any

contaminant listed in table 1 in section 371.3(e) of this Part that would not have been

exceeded by the excluded waste alone if the mixture had not occurred or if it continues to

exceed the maximum concentration for any contaminant exceeded by the nonexempt

waste prior to mixture.

(b) It is listed in section 371.4 of this Part and has not been excluded from the lists in

section 371.4 under the provisions of section 370.3(a) and (c) of this Title.

(e) [Reserved]

(d) It is a mixture of solid 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) of this Title. or paragraph (6) or (7) of this subdivision; however, the

following mixtures of solid wastes and hazardous wastes listed in section 371.4 of this

Pan are not hazardous wastes (except by application of clause (a) or (b) of this 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 eliminated the discharge of wastewater) and:

(1) one or more of the 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

of wastewater into the headworks of the facility's wastewater treatment or pretreatment

system does not exceed one mgl1; or

(2) one or more of the following spent solvents listed in section 371.4(b) of this

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 of these solvents (other than the amounts that can be demonstrated

not to be discharged to wastewater), divided by the average weekly flow of wastewater

into the head works of the facility's wastewater treatment or pretreatment system. does

not exceed 25 mg/l; or

(3) one of the following wastes listed in section 371.4(c) of this Pan, provided that

the wastes are discharged to the refinery oil recovery sewer before primary oil/water/

solids separation-heat exchanger bundle cleaning sludge from the petroleum refining

industry (EPA Hazardous Waste No. K050), crude oil storage tank sediment from

petroleum refining operations (EPA Hazardous Waste No. K169), clarified slurry oil

tank sediment and/or in-line filter/separation solids from petroleum refining operations

(EPA hazardous waste No. KI70). spent hydrotreating catalyst. (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 of hazardous materials which occur unavoidably

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 other containers. leaks from pipes. valves or other devices used

to transfer materials): minor leaks of process equipment. storage tanks or containers;

leaks from well maintained pump packings and seals; sample purgings; relief device

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discharges; discharges from safety showers and rinsing and cleaning of personal safety

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

empty by that rinsing; or

(5) wastewater resulting from laboratory operations containing any toxic (T)

wastes listed in section 371.4 of this Part. provided that the annualized average flow of

laboratory wastewater does not exceed one percent of total wastewater flow into the

headworks of the facility's wastewater treatment or pretreatment system, or provided

the wastes' combined annualized average concentration does not exceed 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

number of operating days of the 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 of the 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 wastewater treatment system does not exceed a total of five 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. K l56)-provided, that

the maximum concentration of formaldehyde, methyl chloride, methylene chloride, and

triethylamine prior to any dilutions into the headworks of the facility's wastewater

treatment system does not exceed a total of five 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 significant concentrations 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, if they 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 of a 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.

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(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 criteria of paragraph (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 are reclaimed from solid waste and used beneficially are not solid waste and

hence are not hazardous waste under this provision unless the reclaimed material is burned

for energy recovery or used in a manner constituting 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 of hazardous waste:

(1) Waste pickle liquor sludge generated by lime stabilization of spent pickle liquor

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 exhibit no characteristics of hazardous waste. Testing requirements

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 or operation generating the waste changes. Persons claiming this exclusion in

an enforcement action will have the burden of proving by clear and convincing

evidence that the material meets all of the exclusion requirements.

Generic exclusion levels for K06 J and K062

nonwastewater HTMR residues

Constituent

Antimony

Arsenic

Barium

Beryllium

Cadmium

Chromium (total)

Lead

Mercury

Nickel

Selenium

Silver

Thallium

Zinc

Maximumfor any 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

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Generic exclusion levels for FOO6 non wastewater

HTMRresidues

Constituent

Antimony

Arsenic

Barium

Beryllium

Cadmium

Chromium (total)

Cyanide (total) (mglkg)

Lead

Mercury

Nickel

Selenium

Silver

Thallium

Zinc

Maximum for 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 must be placed in the facility's files

and sent to the department for K061, K062 or FOO6 HTMR residues that meet the

generic exclusion levels for all constituents and do not exhibit any characteristics that

are sent to solid waste management facilities. The notification and certification that is

placed in the generator's or treater's files must be updated if the process or operation

generating the waste changes and/or if the solid waste management facility receiving

the waste changes. However, the generator or treater need only notify the department

on an annual basis if such changes occur. Such notification and certification should

be sent to the department no later than the end of the calendar year. The notification

must include the following information: the name and address of the 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 of generation. The certification

must be signed by an authorized representative and must state as follows:

"I certify under penalty of law that the generic exclusion levels for all constituents have been met without impermissible dilution and that no characteristic of

hazardous waste is exhibited. I am aware that there are significant penalties for

submitting a false certification, including the possibility of fine and imprisonment."

(4) Biological treatment sludge from the treatment of one 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. K156), and wastewaters

from the production of carbamates 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 in paragraph (3) of this subdivision is not a hazardous 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

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characteristic at the point of generation may still be subject to the requirements of Part 376 of

this Title, even if they no longer exhibit a characteristic at the point of land disposal.)

(ii) In the case of a 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 for exclusion of a listed waste produced at

a particular facility.

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

as defined in Part 376 of this Title does not exhibit a characteristic identified 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 of contamination, 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, or reactivity 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 this paragraph 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 a characteristic 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

because it exhibits one or more of the characteristics 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 the eligibility 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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(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

subject to 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 it exclude sludges that are

generated by industrial wastewater treatment.

(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 20 II 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) of this 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

reclamation is closed by being entirely connected with pipes or other comparable enclosed

means of conveyance;

(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

without being reclaimed; and

(d) the reclaimed material is not used to produce a fuel, or used to produce products

that are used in a manner constituting 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 described in 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 either land 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;

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(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 of hazardous

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 to begin operating under

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 a copy of that document

in its on-site records for a period of no less than three years from the date specified in

the notice. The exclusion applies only so long as the plant meets all of the conditions. If

the plant goes out of compliance 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 exhibit the toxicity characteristic (TC) specified in 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 generated to the point they are recycled to coke ovens or tar recovery

or refining processes, or mixed with coal tar; and

(xi) nonwastewater splash condenser dross residue from the treatment of K061 in high

temperature metals recovery units, provided it is shipped in drums (if shipped) and not land

disposed before recovery;

(xii} (a) oil-bearing hazardous secondary materials ti.e., sludges, byproducts, or spent

materials) that are generated at a petroleum refinery (SIC code 2911) and are inserted 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 is placed on the land. or speculatively accumulated before being 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 a listing under section 371.4 of this

Part. are designated as F037 listed wastes when disposed of or intended for disposal;

(b) recovered oil that is recycled in the same manner and with the same conditions as

described in clause (a) of this subparagraph. Recovered oil is oil that has been reclaimed

from secondary materials (including wastewater) generated from normal petroleum industry practices. including refining, exploration and production, bulk storage, and transportation incident thereto (SIC codes 131I. 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 371.4 ofthis Part; however. oil recovered from 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;

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§ 371.1 TITLE 6 ENVIRONMENTAL CONSERVATION

(xiv) shredded circuit 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 manufacturing facility is a facility where the

primary SIC code is 2869. but where operations may also include SIC codes 2821, 2822,

and 2865; and is physically co-located with a petroleum refinery; and where the petroleum

refinery to which the oil being recycled is returned also provides hydrocarbon feedstocks

to the organic chemical manufacturing facility. Petrochemical recovered oil is oil that has

been reclaimed from secondary materials (i.e. sludges. byproducts. or spent materials.

including wastewater) 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 of regulation. if such 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 not contain hazardous waste; and

(b) does not accept hazardous waste and the owner or operator of such facility has

established contractual requirements or other appropriate notification or inspection procedures 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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(iii) mining overburden returned to the mine site;

(iv) fly ash waste, bottom ash waste, slag waste. and flue gas emission control waste

generated primarily from the combustion of coal or other fossil 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 of crude 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) For purposes 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 (except where the roasting {and/or autoclaving and/or chlorination}/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) For the purposes of this subparagraph, solid waste from the processing of ores and

minerals includes only the following wastes as generated:

(I) slag from primary copper processing;

(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 wastewater from coal gasification;

(8) calcium sulfate wastewater treatment plant sludge from primary copper

processing;

(9) slag tailings from primary copper processing;

(10) fluorogypsum from hydrofluoric acid production;

(J J) process wastewater from hydrofluoric acid production;

(12) air pollution control dust/sludge from iron blast furnaces;

(13) iron blast furnace slag;

(14) treated residue from roastinglIeaching of chrome ore;

(15) process wastewater from primary magnesium processing by the anhydrous

process;

(16) process wastewater from phosphoric acid production;

(17) basic oxygen furnace and open hearth furnace air pollution 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;

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§.371.1 TITLE 6 ENVIRONMENTAL CONSERVATION

(c) a residue derived from co-processing mineral processing secondary materials with

normal beneficiation raw materials or with normal mineral processing raw materials

remains excluded under paragraph (2) of this subdivision if the owner or 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 of discarded 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 constituent or are not listed due to the

presence 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 in clause (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 waste characteristic) 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

the corrective 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 other equivalent hot-draining method that will remove used oil:

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CHAPTER 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 air conditioning and refrigeration systems that use chlorofluorocarbons as the heat

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

and

(xiii} leachate or gas condensate collected from landfills where certain solid wastes have

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 any characteristic of hazardous waste

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 exempt ifit is stored or managed in a surface impoundment 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 the impoundment and continues to

be managed in compliance with the conditions of this clause after the emergency ends.

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CHAPTER IV QUALITY SERVICES § 371.1

(3) Hazardous wastes which are exempted from certain regulations.

0) A hazardous waste which is generated in a product or raw material storage tank, in a

product or raw material transport vehicle or vessel, in a product or raw material pipeline, or

in a manufacturing process unit or an associated non-waste treatment manufacturing unit, is

not subject to regulation under Parts 372, 373, and 376 of this 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 if the 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 in subparagraph (ii) of this paragraph, a sample of solid waste or a

sample of water, soil or air, which is collected for the sale purpose of testing to determine its

characteristics, or composition. is not subject to any requirements of this Part or of Parts 372,

373. and 376 of this Title, when:

(a) the sample is being transported to a laboratory for the purpose of testing;

(b) the sample is being transported back to the sample collector after testing;

(c) the sample is being stored by the sample collector before transport to a laboratory

for testing;

(d) the sample is being stored in a laboratory before testing;

(e) the sample is being stored in a laboratory 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, until conclusion of a court case or enforcement action 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 Department of Transportation (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 that it does not leak, spill or vaporize 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) of this 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) of this Pan when:

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§371.1 TITLE 6 ENVIRONMENTAL CONSERVATION

(1) the sample is being collected and prepared for transportation by the generator or

sample collector;

(2) the sample is being accumulated or stored by the generator or sample collector

prior to 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 of conducting treatability

studies provided that:

(1) the generator or sample collector uses (in "treatability studies") no more than

10,000 kilograms of media contaminated with non-acute hazardous waste, 1,000 kilograms of any non-acute hazardous waste other than contaminated media, I kilogram of

acute hazardous waste, or 2,500 kilograms of media contaminated with 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 of hazardous waste, and I kilogram of acute 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 of item (i) or (it) of this subclause are

met;

(i) the transportation of each sample shipment complies with U.S. Department of

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

shipment of the sample, the following information must accompany the sample;

(A) the name, mailing address, and telephone number of the originator of the

sample;

(B) the name, address, and telephone number of the 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 of the treatability study:

(i) copies of the shipping documents;

(ii) a copy of the contract with the facility conducting the treatability study;

(iii) documentation showing:

(A) the amount of waste 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:

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CHAPTER IV QUALITY SERVICES § 371.1

(6) the generator reports the information required under item (5)(iii) of this 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 a case-by-case basis, for quantity limits in excess of those specified

in subclauses (iv)(b)(l) and (2) and clause (v)(d) of this paragraph, for up to an additional

5,000 kilograms of media contaminated with non-acute hazardous waste, 500 kilograms

of non-acute hazardous waste, 2,500 kilograms of media contaminated with acute hazardous waste and 1 kilogram of acute 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 a previously evaluated

treatment process; or there is a need to do further evaluation of an 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 subject to all the provisions in 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 collector requires additional time or

quantity of sample for the treatability study evaluation and the additional time or

quanity needed;

(ii) documentation accounting for all samples of hazardous 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 expected results;

(iv) if such further study is being required due to equipment or mechanical

failure, the applicant must include information regarding the reason for the failure or

breakdown and also include what procedures or equipment improvements have been

made to protect against further breakdowns; and

(v) such other information that the commissioner considers necessary.

(v) Samples undergoing treatability studies at laboratories 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 subject to any requirements of this Part of Parts 370~374 and Part 376, provided that

the conditions of clauses (a) through (k) of this 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 of MTUs 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

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§ 371.1 TITLE 6 ENVIRONMENTAL CONSERVATION

(a) No less than 45 days before conducting treatability studies, the facility notifies the

commissioner in writing that it intends to conduct treatability studies under this 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 "as received" hazardous waste stored at the facility for the purpose

of evaluation in treatability studies does not exceed 10,000 kilograms, the total of which

can include 10,000 kilograms of media contaminated with non-acute hazardous waste,

2,500 kilograms of media contaminated with acute hazardous waste, 1,000 kilograms 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 since the treatability study for the sample was

completed, or no more than one year (two years for treatability studies involving bioremediation) have elapsed since the generator or 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 limit for the facility,

(f) The treatability study does not involve the placement of hazardous waste on the

land or open burning of hazardous waste.

(g) The facility maintains records for three years following completion of each 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 of the generator or sample

collector of each waste sample;

(2) the date the shipment was received;

(3) the quantity of waste accepted;

(4) the quantity of "as received" waste in storage each day;

(5) the date the treatment study was initiated and the amount of "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 returned to the generator or sample collector, or, ifsent to a designated facility, the

name of the facility, and the EPA identification number.

(h) The facility keeps. on-site, a copy of the treatability study contract and all shipping papers associated with the transport of treatability study samples to and from the

facility for a period ending three years from the completion date of each treatability study,

(i) The facility prepares and submits a report to the commissioner by March 15th of

each year that estimates the number of studies and the amount of waste expected to be

used in treatability studies during the current year, and includes the following information

for the previous calendar year:

(1) the name, address, and EPA identification number ofthe facility conducting the

treatability studies;

(2) the types (by process) of treatability studies conducted;

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CHAPTER 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 of waste 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 originator under 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) A generator is a conditionally exempt small quantity generator in a

calendar month if no more than 100 kilograms of hazardous waste are generated in that month.

(2) Except as provided in paragraphs (5), (6), (7), and (10) of this subdivision, a conditionally 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 of this Title, the

generator must include all hazardous waste that it generates, except hazardous waste that:

(i) is exempt from regulation under paragraphs (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, wastewater treatment units, or totally enclosed treatment facilities as defined in section

370.2 of this Title; or

(iii) is recycled, without prior storage or accumulation, only in an on-site process 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) of this section and Subpart 374-3

of this Title.

(4) In determining the quantity of hazardous waste generated, a generator need not include:

(i) hazardous waste when it is removed from on-site storage;

(ii) hazardous waste produced by on-site treatment (including reclamation) 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 spent materials have been counted once.

(5) If a conditionally exempt small quantity generator generates acute hazardous waste in

quantities greater than that set forth below in a calendar month, all quantities of that waste are

subject to 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) A conditionally exempt small quantity generator who 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 of those accumulated wastes are

subject to regulation under Parts 372 through 374, and 376 of this Title. The time period for

accumulation of wastes 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 either of which, if located in the U.S., is:

(a) permitted under 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 a hazardous waste management program approved under RCRA, if located 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, or registered by a state other than New York to manage municipal solid waste if

managed in a solid waste landfill subject to 40 CFR part 258, as incorporated by 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 incorporated by reference in section 370.1 (e) of this Title;

(j) a facility which beneficially uses or reuses, or legitimately recycles or reclaims its

waste; or treats its waste prior to beneficial use or reuse, or legitimate recycling or

reclamation;

(g) a facility authorized by the department to 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 a transporter authorized under Part 364 of this Title to transport the particular

waste(s) offered for shipment to 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 generator may accumulate hazardous waste

on-site. If he or she accumulates at any time more than a total of 1,000 kilograms of their

own hazardous wastes, all of those accumulated wastes are subject to regulation under the

special provisions of Part 372 of this Title applicable to generators of between] 00 and] ,000

kg of hazardous waste in a calendar month as well as the requirements of Parts 373 and 376

of this Title, and the applicable notification requirements of section 3010 ofRCRA. The time

period of section 372.2(a)(8)(iii) of this 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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(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) permitted under 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 a hazardous waste management program approved under RCRA, if located 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 or registered 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 incorporated by 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 CPR sections 257.5 through

257.30, as incorporated by reference in section 370.1(e) of this Title;

(j) a facility which beneficially uses or reuses, or legitimately recycles or reclaims its

waste; or treats its waste prior to beneficial use or reuse, or legitimate recycling or

reclamati on;

(g) a facility authorized by the department to 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 a transporter authorized under Part 364 of this Title to transport the particular

waste(s) offered for shipment to the designated facility.

(8) Hazardous waste subject to 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 the characteristics of hazardous wastes identified in section 371.3 of this

Part, or such mixing occurs at a facility regulated under Subpart 373-4 or permitted under Part

373 of this Title.

(9) If a conditionally 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 a conditionally exempt small quantity generator's wastes are mixed with used oil,

the mixture is subject to Part 360 and Subpart 374-2 of this Title if it is destined to be burned for

energy recovery. Any material produced from such a mixture by processing, blending, or other

treatment is also so regulated if it is destined to be burned for energy recovery.

(g) Requirementsfor recyclable 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 a manner constituting disposal (see section 374-1.3 of

this Title);

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§ 371.1 TITLE 6 ENVIRONMENTAL CONSERVATION

(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 of this Title); \

(c) [Reserved]

(d) recyclable materials from which precious metals are reclaimed (see section

374-1.6 ofthis Title); 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 of this

Title:

(a) industrial ethyl alcohol that is reclaimed except that, unless provided otherwise in

an international agreement as specified in section 372.5 of this 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 conformance

with 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] of this section);

(d) (1) hazardous waste fuel produced from oil-bearing hazardous wastes from

petroleum 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 wastes

are 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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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 ofhazardous 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 the transportation requirements of Part 364 of this Title.)

(ii) Any hazardous waste in either a container that 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 the container or 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 the container or inner liner if the container is greater than 110 gallons in size.

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