Federal Register / Vol. 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations

or recycled, management practices,

environmental emissions that attend use

or recycling, health and environmental

effects resulting from use and recycling

and other specific data are very useful.

We-also invite commenters to submit

specific proposed standards or

suggestions for how standards might be

developed. For example, where wastes

might be burned as a supplemental fuel

in industrial boilers, proposals on fuel

ratios, burning temperatures, emission

control requirements and residue

disposal requirements would be useful.

Obviously, the more specific and

constructive the suggestions, the morehelpful they will be in our rulemaking.

C. Section 261.3 (Definition of

Hazardous Waste)

This section is a new provision which

does not have a direct counterpart in the

proposed regulations. It has been added

for purposes of clarification and in

response to questions raised during the

comment period'concerning waste

mixtures and when hazardous wastes

become subject to and cease to be

subject to the Subtitle C hazardous

waste management system.

If a material is a hazardous waste

within the meaning of this section it

must be managed in accordance with

EPA's Part 262 through 265 standards

and its Part 122 through 124 permitting

requirements unless covered by one of

the exclusions in those regulations or

one of the Part 261 special management

provisions (§ § 261.5 and 261.6).

1. What is a Hazardous Waste?

Paragraph (a) of this section defines

what a hazardous waste is. It provides

that a solid waste is a hazardous waste

if it is not excluded under § 261.4(b) and

it either (1) is listed as a hazardous

waste in Subpart D. (2) is a waste

mixture containing one or more

hazardous wastes listed in Subpart D or

(3) exhibits one or more characteristics

of hazardous waste identified in Subpart

C. A listed waste or a solid waste

mixture containing a listed waste which

is generated by a particular facility may

be excluded under the rulemaking

procedures prescribed in §§ 260.20 and

260.22 (see section VIIl.C., below). In

that event, it will be considered a

hazardous waste only if it exhibits one

or more of the characteristics.

Except for waste mixtures, all these

provisions were contained in EPA's

December 18, 1978 proposal (see

§ § 250.10 (b) and (d)(2), 250.13 and

250.14). The waste mixtures provision is

a clarification which has been added in

response to inquiries about whether

mixtures of hazardous and

nonhazardous wastes would be subject

to Subtitle C requirements. This is a

very real issue in real-world waste

management, since many hazardous

wastes are mixed with non-hazardous

wastes or other hazardous wastes

during storage, treatment, or disposal.

Although it was not expressly stated

in the proposed regulation. EPA

intended waste mixtures containing

listed hazardous wastes to be

considered a hazardous waste and

managed accordingly. Without such a

rule, generators could evade Subtitle C

requirements simply by commingling

listed wastes with nonhazardous solid

waste. Most of these waste mixtures

would not be caught by the Subpart C

characteristics because they would

contain wastes which were listed for

reasons other than that they exhibit the

characteristics (e.g., they contain

carcinogens, mutagens or toxic organic

materials). Obviously, this would leave

a major loophole in the Subtitle C

management system and create

inconsistencies in how wastes must be

managed under that system.

EPA recognizes that designating all

waste mixtures containing listed wastes

as hazardous wastes under Subtitle C

may create some inequities. For

example, this approach may result in

some waste mixtures which contain

only very small amounts of listed

hazardous wastes or which commingle

waste in a way which renders them

nonhazardous (e.g., neutraliiation)

having to be managed under Subtitle C.

We have tried to address this problem

by establishing provisions for amending

this paragraph to exclude waste

mixtures produced by individual

facilities, if they can show that the

mixture (or each constituent listed

hazardous waste) is not hazardous,

based on the criteria for which the

consistuent hazardous wastes were

listed. Because this is a rulemaking

procedure, it will, as a practical matter.

only be useful for facilities which

routinely mix wastes in relatively

constant proportions. With a regulated

community potentially numbering in the

hundreds of thousands, we simply do

not have the resources to process

petitions for exempting "one-shot"

waste mixtures. Moreover, in most of

these one-time cases, it seems likely that

the burden of having to manage a waste

mixture as a hazardous waste could be

easily avoided by carefully segregating

hazardous and non-hazardous waste.

We know of no other effective

regulatory mechanism for dealing with

waste mixtures containing listed

hazardous wastes. Because the potential

combinations of listed wastes and other

wastes are infinite, we have been

unable to devise any workable, broadly.

applicable formula which would

distinguish between those waste

mixtures which are and are not

hazardous. If any members of the public

have suggestions for other approaches,

we would appreciate having them

brought to our attention for future

rulemaking.

Waste mixtures containing only

wastes which meet the characteristics

are treated just like any other solid

waste i.e., they will be considered

hazardous only if they exhibit the

characteristics. EPA recognizes that this

may not be an altogether satisfactory

regulatory approach. While it would no

doubt encourage some desirable mixing

of wastes, it would also allow some

wastes (principally wastes caught by

EPA's extraction procedure) to escape

regulation merely by being mixed with

other wastes or other materials. We

know of no solution to this problem

which does not create major

inconsistencies in the way wastes are

determined to be hazardous under

Subpart C of this regulation. Again, if

the public has suggestions for other

ways of dealing with this issue, we

would like to receive them.

2. When Does a Waste Become a

Hazardous Waste?Paragraph (b)

provides three simple rules for

determining when a solid waste

becomes a hazardous waste and

therefore must be managed under

Subtitle C. It has been provided in

response to comment requesting

clarification on this issue.

Paragraph (b) states that a solid waste

which is a hazardous waste because it is

listed in Subpart D must begin to be

managed as a hazardous waste when it

first meets the Subpart D listing

description. Most of the hazardous

wastes listed in §§ 261.31 and 261.32 of

Subpart D are process residues,

emission control dusts, or wastewater

treatment sludges, and the point in time

when they are created is generally welldefined. For those used materials which

are listed as hazardous wastes in those

sections or § 261.33 (e.g., spent solvents),

the point at which they meet the listing

description is somewhat less welldefined, but generally occurs when their

intended use has ceased, and they begin

to be accumulated or stored for disposal,

re-use or reclamation.

In the case of a waste mixture

containing a listed hazardous waste,

paragraph (b) requires that the waste

mixture be managed as a hazardous

waste as soon as the listed waste is

added to it. The listed waste, of course,

must be handled as a hazardous waste

prior to that time.

Finally, paragraph (b) provides that a

solid waste is a hazardous waste

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