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Monday

May 19, 1980

) a -

- --

Part III

Environmental

Protection Agency

Hazardous Waste Management System

Identification and Listing of Hazardous

Waste

I T
3Federal Register: / Vol. 45, No. 98 /Monday,;May 19, 1980 / Rules and Regulations,,

ENVIRONMENTAL PROTECTION

,AGENCY

40 CFR Part 261

[FRL 1471-3]

Hazardous Waste Management

System: Identification and Listing of

Hazardous Waste

AGENCY: Enviromental Protection

Agency.

ACTION: Final rule, interim final rule, and

request for comments.

SUMMARY: Subtitle C of the Solid Waste

Disposal Act, as amended by the

Resource Conservation and Recovery

Act of 1976,*as amended ("RCRA"),

requires the Environmental Protection

Agency ("EPA") to promulgate

regulations establishing a Federal

hazardous waste management system.

The keystone of Subtitle C is Section

3a01, which requires EPA to identify the.

characteristics of and to list those solid

wasteswhich must be managed as

hazardous wastes under that system.

This regulation is the first phase of

EPA's implementation of Section 3001. It

identifies four characteristics of

hazardous waste to be used by persons

handling solid waste to determine if that

waste is a hazardous waste.-In addition,

it lists 85 process wastes as hazardous

wastes and approximately 400

chemicals as hazardous wastes if they

are discarded. Persons who generate,

transport, treat, store or dispose of

hazardous wastes identified or listed in

this regulation must comply with all

applicable requirements of Parts 122,

124, and 262 through 265 of this Chapter

and the notification requirements of

Section 3010 of RCRA.

In addition to identifying and listing

hazardous wastes, this regulation also

sets forth the criteria used by EPA to

identify characteristics of hazardous

wastes-and to list hazardous wastes.

DATES:

Effective Date: These regulations, in

the form published today, complete

EPA's initial rulemaking on the subjects

covered and are final agency action.

They become effective on November 19,

1980, which is six months from the date

of promulgation as Section 3010

requires. Today's promulgation begins

the various schedules provided by

RCRA for filing notifications and permit

applications, and for States to apply for

interim authorization.

-Comment Dates: EPA will accdpt

public comments on these regulations as

follows:

Regulation and Deadline for Submission

of Comments

Final regulations-technical errors only

(e.g., typographical errorsi inaccurate

cross references); July 18, 1980.

Use, re-use, recycling and reclamation of

wastes .(see section IV.B.. of the

preamble and § 261.4(c) of the

regulations); August 18, 1980.

Interim final regulations (§§ 261.2,

261.4(a)(1),and 261.11, Subpart D and

Appendix VIII); July 18, 1980.

Public Meetings: EPA will hold three

all-day public meetings each beginning

at 9 a.m. on the following dates:

May 30,1980-San Francisco,

California.

June 2, 1980--Washington, D.C.

June 6, 1980-Chicago, Illinois.

ADDRESSES: Comments on interim final

portions should be sent to Docket Clerk

[Docket No. 3001], Office of Solid Waste

(WH-562), U.S. Environmental

Protection Agency, 401 M Street, S.W.,

Washington, D.C. 20460.

Public Docket: The public docket for

this regulation is located in Room 2711,

U.S. Environmental Protection Agency,

401M Street, S.W., Washington, D.C.,

and is available for viewing from 9 a.m.

to 4 p.m., Monday through Friday,

excluding holidays. Among other things,

the docket contains background

documents which explain, in- more detail

than the preamble to this regulation, the

basis for many of the provisions'in this

regulation. Copies of Regulations: Single copies

of this regulation will be available

approximately 30"days after date of

publicationlrom Ed Cox, Solid Waste

Information, U.S. Environmental

Protection Agency, 26 W. Saint Clair

Street, Cincinnati, Ohio 45268, (513) 684-

5362. Multiple copies will be available

fiom the Superintendent of Documents,

Washington, D.C. 20402.

Public Meetings: EPA will hold three

al.l-day public meetings, each beginning

at 9 a.m., to answer questions about all

of its final and interim final Subtitle C

regulations. The dates and locations of

these meetings are:

May 30, 1980-Sheraton Palace Hotel,

639 Market Place, San Francisco,

California.

June 2, 1980-HEW Auditorium, HEW

North Building, 330 Independence

Avenue, S.W., Washington, D.C.

June 6, 1980-Palmer House Hotel, 17

East Monroe Street, Chicago, Illinois.

FOR FURTHER INFORMATION CONTACT:

For general information, contact Alan S.

Corson, Office of Solid Waste, U.S.

"Environmental Protection Agency, 401 M

Street, S.W., Washington, D.C. 20460,

(202) 755-9187. For information on

implementation, contact:

Region I, Dennis Huebner, Chief,

Radiation, Waste Management

Branch, John F. Kennedy Building,

Boston, Massachusetts 02203 (617)

223-5777.

Region II, Dr. Ernest Regna, Chief, Solid

Waste Branch, 26 Federal Plaza, New

York, New York 10007, (212) 264-0504/

5.

Region Ill, Robert L. Allen, Chief,

Hazardous Materials Branch, 6th &

Walnut Streets, Philadelphia,

Pennsylvania 19106, (215) 597-0980,

Region IV, James Scarbrough, Chief,

Residuals Management Branch, 345

Couraland Street, N.E., Atlanta,

Georgia 30365, (404) 881-3010,

Region V, Karl J. Klepitsch, Jr., Chief,

Waste Management Branch, 230 South

Dearborn Street, Chicago, Illinois

60604, (312) 886-6148.

Region VI, R. Stan Jorgensen, Acting

Chief, Solid Waste Branch, 1201 Elm

Street, First International Building,

Dallas, Texas 75270, (214) 767-2645.

Region VII, Robert L. Morby, Chief,

Hazardous Materials Branch, 324 E.

lth Street, Kansas City, Missouri

64106, (816) 374-3307.

Region VIII, Lawrence P. Gazda, Chief,

Waste Management Branch, 1860

Lincoln Street, Denver, Colorado

80203, (303) 837-2221.

Region IX, Arnold R. Den, Chief,

Hazardous Materials Branch, 215

Fremont Street, San Francisqo,

California 94105, (415) 556-4606.

Region X, Kenneth D. Feigner, Chief,

Waste Management Branch, 1200 6th

Avenue, Seattle, Washington 98101,

(20B) 442-1260.

For further information about these

meetings, contact Geraldine Wyer,

Public Participation Officer, Office of

Solid Waste (WH-562), U.S.

Environmeital Protection Agency,

Washington, D.C. 20460, (202) 755-9157.

SUPPLEMENTARY INFORMATION:

I. Introduction

The improper management of

hazardous waste is probably the most

serious environmental problem in the

United States today. EPA estimates that

in 1979 the United States generated

almost 60 million metric tons of

hazardous waste, but that only 10

percent of this waste was managed In

an environmentally sound manner. The

remainder-over 50 million tons-was

transported, treated, stored or disposed

of in a manner which potentially

threatens human health and the

environment.

This mismanagement has tragic

consequences. EPA has on file hundreds

of cases of damage to human health or

the environment resulting from the

17 i

33084
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

indiscriminate dumping or other

improper management of hazardous

waste. The vast majority of these cases

involve the pollution of groundwaterthe source of drinking water for about

half the nations's population-from the

open dumping of wastes or from

improperly operated landfills and

surface impoundments. In many of these

cases, groundwater supplies were so

badly contaminated with toxic or

cancer-causing chemicals and heavy

metals that residents in the areahad to

obtain drinking water from other

sources. In other more tragic cases,

residents were not aware of the.

contamination, continued to drink the

water, and suffered serious health

effects.

Groundwater pollution is not the only

problem posed by improper hazardous

waste management. EPA's damage case

file also includes incidents where the

improper disposal of hazardous waste

has polluted streams, rivers, lakes and

other surface waters, killing aquatic life,

destroying wildlife, and denuding areas

of vegetation. In other cases, the

vaporization of volatile organic

materials from wastes which were

improperly disposed of has been linked

-to respiratory illnesses, skin diseases

(including skin cancer) and elevated

levels of toxic materials in the blood

and tissues of humans and domestic

livestock. In still other cases, the

mismanagement of hazardous waste has

resulted in fires, explosions or the

generation of toxic gases which have

killed or seriously injured workers and

firemen.

It is against the backdrop of such

incidents that Congress enacted the

Resource Conservation and Recovery

Act of 1976, as amended, 42 U.S.C. 6901

et seq. ("RCRA" or "Act"). Although the

Act has several objectives (including the

promotion of resource recovery and the

proper management of non-hazardous

solid waste), Congress' "overriding

concern" -(H.R. Rep. No. 96-1461, 96th

Cong., 1st Sess. 3 (1976) ("H.R. Rep.")) in

enacting RCRA was to establish the

statutory framework for a national

system which would insure the proper

management of hazardous waste.

That framework is contained in

Subtitle C of the statute. It requires EPA

to establish a Federal "cradle to grave"

management system for hazardous

waste, including standards for

generators of hazardous waste (Section

3002], standards for transporters of

hazardous waste (Section 3003),

standards and permit requirements for

owners and operators of facilities that

treat, store or dispose of hazardous

waste (Sections 3004 and 3005) and a

manifest system which will track the

movement of the waste from the point of

generation to the point of disposal

(Sections 3002, 3003 and 3004). Under

Section 3006 of Subtitle C, EPA may

authorize States to operate a State

hazardous waste program in lieu of the

Federal program if they meet certain

requirements.

The centerpiece of this system is

Section 3001 of Subtitle C, which

requires EPA to identify and list those

solid wastes which must be managed as

hazardous wastes according to the

standards established by EPA under

Sections 3002 through 3005. This

identification is a two-part process.

First, EPA is required to develop criteria

for identifying the characteristics of

hazardous waste and for listing

hazardous wastes (Section 3001(a)).

Then, based on these criteria, EPA must

actually identify specific characteristics

of hazardous waste and list particular

hazardous wastes (Section 3001(b)).

EPA began developing regulations to

implement these requirements shortly

after RCRA was- enacted. During 1977

and 1978, the Agency met extensively

with experts in hazardous waste

management, States, Federal agencies,

industry, environmental groups and

other individuals and organizations to

discuss possible criteria, and to obtain

suggestions for characteristics and listed

wastes. Drafts of proposed regulations

were developed and widely

disseminated to the public for comment.

Based on these meetings, several public

hearings, written comments on its draft

regulations and information collected by

EPA, a final proposed regulation was

developed and published in the Federal

Register on December 18,1978 (43 FR

58949-58968).

EPA held five public hearings on its

The recodification of EPA's Section

3001 regulations from a Subpart of Part

250to Part 261 has necessitated some

major reorganization of those

regulations. Proposed § 250.10 is now

largely incorporated in Subpart A. The

purpose of this subpart is to tell the

reader what materials are subject to the

Federal hazardous waste management

system established by Parts 262 through 265,122 and 124. It contains a definition

of solid waste, a definition of hazardous

waste, and a list of materials which are

excluded from all or a portion of the

requirements in those parts. It also

designates the points in the waste

December 18,1978, proposal (43 FR

58.46). Several hundred persons

testified at these hearings. In addition,

EPA received an estimated 1,000 sets of

written comments on its proposed

Section 3001 regulations.

Based in part on these comments, EPA

proposed a supplemental list of

hazardous wastes on August 22,1979 (44

FR 49402-49404). The Agency also held a

hearing on this proposal and received a

number of written comments.

The Agency has carefully considered

the comments received on its December

18,1978, and August 22,1979. proposals.

as well as comments received on a

number of reports, studies and other

documents associated with its Section

3001 rulemaking which were noticed for

public comment after the close of the

comment period on the proposed

regulations,I in developing the final and

interim final regulations published

today.

H. Organization of Regulations and

Preamble

In response to comment that its

proposed Subtitle C regulations were

difficult to read. EPA has totally

reorganized them. Regulations

implementing Section 3001, which were

originally proposed as Subpart A of Part

250 of Title 40 of the Code of Federal

Regulations have been recodified as Part

261 of Title 40. Similar changes have

been made in the remainder of the

Subtitle C regulations. The following

table shows the correlation between the

statutory provisions of Subtitle C and

the sections of EPA's proposed and final

regulations which implement those

provisions:

generation and handling process when a

hazardous waste must begin to be

managed in accordance with EPA's

Parts 262 through 265 standards and

explains when a hazardous waste

ceases to be a hazardous waste. Finally,

it establishes special requirements for

small quantity generators of hazardous

waste (originally contained in

§ 250.29(a) of EPA's proposed generator

standards).

$See 44 FR 4077.49278 (August 22.1979]; 44 FR

56724 (October 2. 1979]; 44 FR 7627 (December 28.

1979: 45 FR 20W (January 10.1980]: 45 FR 1423Z

(March 5. 19m0].

Statuly Sechon Propoed Me Fal Mde

General p ilocad if 250,12(c). 250.11.25021.25031. 250A1 Pat 260. de&*k

3001 .. 250.10 (a) "d (b). 25012 reough 250.15. 2502%a) -_ Pat 261.

3009 if 250,229U0gh250.2.25029M) Partm2

3003 i 250H32 ough 250.36 Pat 263.

3004 (peit*V stnrds). H250A (a). (b). (d). and (0).250.42 vough 2 44-6 Put 264. 3004 (intwrn stabs § 25040(c). 250.46 Part 26& stwnkrds).

3005 Pafts 122 nd 124. Pars 122 ad 124.

3006 Pat 123. H 250.10(c). 25020Mb). 250,30(d) Part 123.

3oo1 Pt 25. S~ E 45 FR 1274 (Feb. 2. 19803.

33085
33086 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations i'I

Subpart B (§ § 250.12 and 250.14 of the

proposed rule) establishes the criteria

used by EPA in identifying the

characteristics of hazardous waste and

listing particular hazardous wastes.

Subpart C (proposed §'250.13) contains

the hazardous waste characteristics

which EPA has identified and Subpart D

(proposed § 250.14) the particular

hazardous wastes which EPA has listed

to date based on those criteria. As noted

Except for some broad issues

which cut across all the Section 3001'

regulations (and in some cases EPA's

Section 3002 through 3004 standards),

the preamble to this regulation will

generally follow the structure of the

final regulations. It will discuss some of

the more significant issues raised during

the public comment period on EPA's

proposed regulations and the revisions '

made in response to those comments.

Background documents which address

these comments and revisions and

explain the.basis for these regulations in

more detail are available as noted

above.

III. General Issues.

A. Phasing of Regulations

Several months prior to the proposal

of EPA's Section 3001 regulations, the

State of Illinois, several environmental

groups, and a solid waste trade

association sued the Agency under

Section 7004 of RCRA to obtain a court

order requiring EPA to promulgate final

regulations under Section 3001 (and

other sections of the Act) by a-date

certain. On January 3, 1979, the court

issued an order directing EPA to issue

final regulations under Section 3001 by

December 31, 1979. State of Illinois V.

Castle, 12 ERC 1597 (D.D.C. 1979). This

order was subsequently.modified to

require EPA to use its best efforts to

meet an April 1980, promulgation date

(Order of December 18, 1979).

Given our limited resources, it has not

in the definition of hazardous waste in

Subpart A, these two subparts are the

cornerstone for the Federal hazardous

waste management system because they

identify which solid wastes will be

regulated as hazardous wastes under'

that system.

The following table provides a rough

correlation between the various

provisions of EPA's proposed and final

Section 3001 regilations:

been possible both to meet this deadline

and to make final decisions on every

segmient of the very ambitious

regulatory program which the Agency

proposed on December 18, 1978, and,

August 22,1979. We have tried to

prioritize our &fforts, insofar ,as possible,

to deal with the most serious

environmental problems first (e.g., *ones

that are national in scope, are not dealt

with by other State or Federal

regulations) and to finalize those

portions of the proposed regulations

whichi must be issued if a core

hazardous-waste management program

is to go into effect.

For these reasons, the final regulation

published today defers final action on a

number of aspects of the proposed

regulation, including integrating the

regulation of polychlorinated bijphenyls

("PCBs") under RCRA and the Toxic

Substances Control Act ("TSCA"); fully

regulating wastes that are fsed, re-used,

reclaimed or recovered: and a number of

proposed listed wastes. To assist States

in developing hazardous waste

programs under Section 3006 of RCRA

and the regulated community in

preparing to c6mply with future

regulatory requirements, EPA is

providing the following information on

its current schedule for acting on these

deferred portions:

1. PCB Integration. On February 17,

1978 (43 FR 7150) EPA issued final " regulations -under Section 6(e) of TSCA

establishing storage, landfilling,

Subject Proposed rule Final rule

Purpose of regulations ..................... § 250.10(a) ........... ..................... . ................ § 261.1. General definitions ............ § 21.......... 250. ........... ..................... ............. ff 260.10, 261.2. 261.3

Dofinition of solid waste ................ § 250. 0(b)................. ..................... §261.2.

Definition of hazardous waste ........ : §250.O(d)(1) ....................................... § 261.3.

Exclusions . ................... §§ 250.10(d)(2). 250. 1 (a)(7). 250.20(c)(4)............ .......... §-261.4.

Small quantity generators ........ § 250.29(a) .................... ... .......... § 261.5.

Criteria.. ............................ . .......... §§ 250.12 (a) and (b). 250.14 ............................. Subpart B.

For identifying characteristics. § 250..2(a) ... ................................................ §261.10.

Chacteristics . .............. §250.13 .. .............. .........-............. ........ Subpart C.

gnitabiltdy..................... § 250.13(a) . ... . ...... ..................................... § 261.21. Reaibiht,.... ................ §5r.3c.........§201().............. ....................... .... .... ........... .. §261.23. Corrosivity ....................... § 250.13(b) ....... .......................................... § 261.22. Reactivity ......... ................... .. ....... . .. .... ... . . ... . . . §~ 261.23.

Toxicity. .. ... .... ... § 250.13(d) . ....... ..... ........... ........... .... . . - § 261.24.

Usts ............................................ § 250.14 ............ ............ .... ....... ................ Subpart D.

Nonspecific sources............ § 250.14(a) .......................... ..... ....... . ........ . ..... §261.31.

Specific sources............... .... §250.14(b)(2) ......................................................... § 261.32.

Discarded chemicals ............. § 250.14(a) .......................... § 261.33.

Procedures for exempting listed § 250.15........................................... ................. §260.20. 260.22.

wastes from particular

generating facilities.

Petitions:

Revision of list and § 250.12(c) ...... ........................... ..... .................. § 260.20.

characteristics. 2.-

Equivalent methodst ........... §§ 25.13(a)(1)i, (a)(2), (b)(1)(, (b)(1}(), (od)(2)(ii)...... §§260.20, 260.21.

3.

incineration, packaging, marking,

placarding and recordkeeping

requirements for waste PCBs. Revisions

to these regulations were published on

May 31, 1979 (44 FR 31514). •

Because of the potential overlap

between the RCRA hazardous waste

management standards and the TSCA

PCB marking and disposal regulations,

in its proposed Section 3004 regulations,

EPA requested comment on five "

alternative ways of integrating the two

sets of regulations (43 FR 58993-58994),

See also 43 FR 31539 (May 31, 1979).

Based on the comments received, and

EPA's own review of the two sets of

regulations, the Agency has made a

tentative decision that the best way to

regulate PCBs is to merge the TSCA PCB

rules into the final RCRA regulations.

Unfortunately, it has not been

possible to complete this task to date,

Both rules are lengthy and complicated,

and must be carefully coordinated to ,

avoid regulatory loopholes and

disruption of the ongoing TSCA PCB

program. Completing this coordination

by April of this year would have

required diverting personnel from the

task of finalizing the RCRA hazardous

waste program. EPA decided that it

made little sense to focus its limited

resources on revising an existing

regulatory progran when so much work

needed to be done to develop a new

one.

EPA expects to complete the task of

integrating the RCRA regulations and

TSCA PCB rules by the fall of 1980, and

to amend Parts 261 through 265 to bring

waste PCBs into the Subtitle C system at

the same time that itpromulgates its

final Phase II Section 3004 standards. In

the interim, the handling and disposal of

waste PCBs will continue to be

regulated under TSCA and other EPA

statutes.

2. Regulation of Wastes Which Are

Used, Re-Used, Recovered or

Reclaimed. As discussed in'some detail

in section IV.B. of this preamble, EPA

will be deferring the promulgation of

standards to regulate hazardous waste

recycling and reclamation operations

and the actual use and re-use of

hazardous waste until beginning in the

fall of 1980.

3. Radioactive Wastes. In its

December 18, 1978, regulation, EPA

proposed to list the following

radioactive materials as hazardous

wastes: waste rock and overburden

from uranium mining; overburden and

slimes from phosphate surface mining;

waste gypsum from phosphoric acid

production; and slag and fluid bed prIlls

from elemental phosphorous production

(§ 250.14(b)(2)). At the same time, it

proposed to establish special

management tandards for these wastes
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

which would regulate their disposal

(§ § 250.46-2 and 250.46-4) and prevent

their being used as fill in land used for

residential development or in building

products unless radon emissions and

gamma radiation could be reduced to

specified levels (§ § 250.46-3(c) and

250.46-4(b)). The purpose of these latter

use restrictions was to reduce the

amount of radiation to which persons

living or working in buildings

constructed either on land where these

wastes were deposited or with materials

containing these wastes would be

exposed.

In February, 1980, the House of

Representatives passed a bill which

would amend RCRA to temporarily

suspend EPA's authority to regulate

these wastes under Subtitle C except as

necessary:

to prevent radiation exposure which

presents an unreasonable risk to human

health from the use in construction or land

reclamation (with or without revegetation) of

solid waste from the extraction, beneficiation or processing of phosphate rock or the

extraction of uranium ore (Section 3(d) of

H.R. 3994).

Because Congressional action on this

provision is imminent (see section III.E.

of this preamble), we are deferring the

development of final or interim final

regulations establishing a criterion for

listing radioactive wastes, listing

radioactive phosphate and uranium

wastes, and establishing management

standards for those wastes until

Congress has spoken. Assuming

Congress acts by the end of the summer,

we would hope to promulgate

regulations for radioactive wastes by

the fall of 1980. This would give EPA

sometime to better refine its final

standards and conform them to any

legislative amendments, to fully respond

to comments on its proposal and to

coordinate its final standards with its

other regulations on used, re-used, . recovered and reclaimed wastes (see

section IV.B.4. of this preamble).

Although the use of radioactive

mining wastes in residential landfill and

construction materials may pose a

serious health hazard, this hazard is

limited to approximately half a dozen

states where these wastes are

generated. Thus, in contrast with many

of the wastes covered by today's

regulation, which are more ubiquitous

and are frequently transported across

state lines, these wastes can probably

be regulated effectively at the state level

pending EPA action.

4. Infectious Wastes. In its proposed

regulation, EPA listed as hazardous

wastes infectious wastes generated by

certain departments in health care

facilities and veterinary hospitals, by

laboratories handling etiologic agents,

and by sewage treatment facilities,

unless the wastes were sterilized or

incinerated in accordance with the

methods prescribed in Appendix VI or

§ 250.14(b)(1)(iii).

EPA received a number of comments

on this proposal, particularly the

absence of an infectious waste listing

criterion, the breadth of sources covered

and the Agency's proposed treatment

methods. Although EPA has completed

its evaluation of these comments and

has developed a criterion for listing

infectious wastes and refined its

proposed list, it has not been able to

complete the work necessary to identify

the treatment methods it would allow to

be used to exempt these wastes from,

regulation. Because logic dictates that

these three parts of the regulation

should be promulgated simultaneously,

EPA is deferring action on infectious

wastes until it can finish this last

segment. It expects to complete this task

by the fall of 1980.

In the meantime, none of these wastes

will go entirely unregulated. Many will

be subject to Stale disposal regulations

or State laws governing hospitals and

other health care facilities. Because of

public health considerations, the

operations of these facilities are

generally closely scrutinized by State

and local officials. In addition, during

this interim period, these wastes will be

subject to the "open dumping"

prohibition under Section 4005(c) of

RCRA. EPA's regulations defining those

practices which constitute "open

dumping" expressly prohibit the land

disposal of infectious wastes unless

measures have been taken to minimize

disease vectors (40 CFR 257.3-6).

5. Other Listed Wastes. The other

waste streams on which EPA has

deferred final action fall into four basic

categories: Wastes which EPA intends

to list as hazardous but for which

revised background documents could

not be completed in time for

promulgation as part of this regulation;

wastes for which EPA currently has

insufficient data to make a final

determination that the wastes are

hazardous; wastes which available data

suggests are not hazardous; and wastes

which are no longer produced.

It is EPA's intent to amend this

regulation to add most of the wastes

included in the first category of deferred

wastes by June 15, 1980 (see Appendix

A) and the remainder by fall, 1980 (see

Appendix B). Persons handling wastes

identified or listed in both this

regulation and Appendix A may, if they

desire, save themselves the expense and

inconvenience of a second notification

under Section 3010 of RCRA by

including Appendix A wastes in the

notification required to be filed on

August 18,1980. Owners and operators

of facilities which treat, store or dispose

of the wastes in both categories may

similarly avoid having to amend their

Part A permit application (see 40 CFR

122.22) by including Appendix A wastes

in their initial application.

EPA will take action on the second

category of deferred wastes-wastes for

which EPA currently has insufficient

data to make a final listing

determination-as soon as it is able to

obtain the information necessary to

make those decisions. To enable the

Agency to gather such information

without the exparte contact restraints,

normally imposed on post-proposal

rulemaking activities, EPA will in the

future be reopening the comment period

on its December 18,1978, proposal-to list

these wastes. EPA does not plan on

taking any further action on the final

two categories of wastes.

EPA does not believe that phasing the

promulgation of Section 3001 in this

fashion will frustrate the objectives of

the statute or unduly complicate

implementation of the hazardous waste

program. Sections 2002(b), 3001(c) and

7002 of the Act clearly contemplate that

regulations under Section 3001 will be

periodically expanded or otherwise

revised. See also H.R. Rep. at 25. The

preview of the content and timing of

future regulations provided above

should help to minimize the disruption

that phased promulgation of major

portions of the Section 3001 regulations

might cause for the regulated community

and for States which are attempting to

formulate their hazardous waste

programs. In light of these

considerations and the pressing need to

begin implementation of a national

hazardous waste program as soon as

possible, EPA sees no reason to

postpone publication of those portions

of its Section 3001 regulations which it is

ready to finalize today pending a final

decision on the remaining portions. Such

an approach would cause an

unwarranted delay in the

commencement of the program.

B. Interim Final Provisions

The following portions of this

regulation are being published as

"interim final" regulations: the lists of

hazardous wastes (Subpart D), the

criteria for listing hazardous wastes

(§ 261.11), and the definitions of "solid

waste" (§ 261.2) and "domestic sewage"

(§ 281A(a)). This means that, although

these regulations are promulgated for

purposes of the 90-day notification

requirement under Section 3010(a). the

six-month effective date under Section

3010(b) and the 90-day petition deadline

under Section 7006, the public will have

an additional opportunity to comment

on them before they are published as

"final final" regulations.

The lists of hazardous wastes under

Subpart D are being published in interim

final form to allow the public an

opportunity to comment on the

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additional data EPA has collected since

the close of the public comment period

to support the listing of these wastes.

Because EPA received comments ononly approximately twenty-five percent

of the wastes listed in its December 18;

1978, and August 22, 1979, proposals; the

Agency does not anticipate receiving

very many comments on its revised.

support documents or having to make

major dhanges in the list of wastespublished today before issuing a, "final

final" regulation.,

The criteria for listing (§ 261.11) have

been substantially revised in response..

to public comment. While EPA believes

that these changes are a logical

outgrowth of the public comment period,

it also recognizes that they would

probably benefit from the fine tuning

that an additional round of public

comment would provide. For this

reason, the Agency is also publishing

§ 261.11 in interim final form.

EPA's proposed definition of 'solid

waste" has been clarified and a newdefinition of "domestic sewage" has

been added in response to public

comment. Because of the difficulties

inherent in devising workable broadly

applicable definitions of these terms,

and their potential regulatory impact,

we would like to obtain some additional

comment on them before publishing

them in final form.

It is EPA's.intent to act on all interim

final portions of these regulations prior.

to the compliance date of Parts 262 and - 263 and the effective date of Parts 264

and 265.

C. Data Base for Regulations

EPA received a number of comments

on its December 18, 1978, and-August 22,

1979, proposals urging it to postpone the

promulgation of final regulations under

Section 3001 (and the rest of Subtitle C)

until it could develop an extensive data

base on hazardous waste characteristics

and individual hazardous wastes,

including extensive industry-specific

waste studies, risk assessments, and indepth waste analyses.

In the final regulation published

today, the Agency has made every

attempt to base its rules on the data

available on waste generation,

composition and management, on the

potential health and environmental

hazards posed by waste constituents,

and on exposure pathways. It has also

exercised its best efforts to use-good

scientific analysis and judgment to

supplement available data and to

respond to comments ieceived on its

proposed regulation. In some instances,

within time and budget constraints, EPA

has undertaken additional waste

analyses and testing. ' While the acquisition of more

information is often a scientific

objective, Section 3001 requires the

Agency to establish regulations where it

has limited, but meaningful data. The

broad discretion provided to EPA under

the statute, the tight statutory

promulgation deadlines coupled with

Congress' acknowledged recognition of

the lack of available dataon hazardous

waste management (see M.,R. Rep. at 26),

and tlhe critical nature of thbkhazardous

waste problem (see H.R. Rep.,Qt 3,4, 11,

17-23; S. Rep. No. 94-988; 94th Cong. 2d

Sess. at 3, 4 ("S. Rep.")] all support - EPA's going forward with a regulaibry

program even though its data base and

-regilations are less than perfect.. The

courts have repeatedly-sancti6ned this.

approach under other EPA statutes

where, as here, the Agency is

implementing a complex program in an

area "fraught with scientific

uncertainty" where Congress ha s

directed EPA "to act quickly and

decisively despite the lack of exact

data". Weyerhaeuser Company v.

Costle, 590 F.2d 1011i.1025-1026 (D.C.

Cir. 1978). See also Ethyl Corp. v. EPA,

541 F.2d 1, 24 (D.C. Cir. 1976); Society of

Plastics-Industries, Inc.- v. OSHA, 509 .- F.2d 1301,1308 (2d Cir.), cert. denied, 421.

U.S. 992 (1975).

We are committed to improving our

data base for these regulations and

refining them in the future. The Agency

has recently instituted a multi-year,

multi-million dollar program to survey

specific industries, and collect waste

samples and other information which

will expand its data base on the

hazardous waste generated by these

industries. EPA also anticipates that

implementation of the Subtitle C

regulations-particularly the waste

testing requirements-will, over the next

several years, substantially increase the

national pool of information on,

hazardous wastes. The petitioning

procedures set forth in §§ 260.20 through

260.22 should provide yet another

revenue of information which can be

used to improve this regulation in the

future.

D. Developing a National Hazardous

Waste Management System

EPA received'a number of comments on its proposed regulations identifying

particular wastes or management

situations where a strict application of

EPA's proposed regulations would result

in overregulation of the wastes at issue.

For exampe. commenters identified

several wastes which exhibited EPA's

propised characteristics but which

would not normally be thought of as

hazardous, and described situations

where the application of EPA's proposed

Section 3004 standards was arguably

unnecessary.

In the regulations promulgated today,

particularly the Part 264 and 265

regulations, we have tried to address

some of these criticisms, to the extent

feasible, and to achieve a better balance

between the often clompeting goals of

regulatory specificity and broad

applicability. Where we think specific

standards are appropriate, we have

promulgated specific standards: where

more flexibility is required, we have

either used broader standards or used

specific standards and articulated

exceptions or provided for individual

variances. We have done our best to lay

the groundwork for a hazardous waste

managernent system which is workable

and understandable, and which

provides appropriate regulation of most

hazardous wastes identified br listed in

this Part.

This system may not work perfectly

for every waste, however. It may

overregulate in some instances and

underregulate in others. This is an

unavoidable consequence of attempting

to develop a national hazardous waste

managment program which has to

regulate thousands of wastes in literally

hundreds of thousands of individual

transportation, treatment, storage and

disposal situtations. To develop a

program which would provide precisely

the right degree of environmental and

health protection in each management

situation would require regulations that

would be either so vague that they

would offer little guidance to the

regulated community and would be

largely uienforceable or so extensive

and so encumbered with provisions for

case-by-case variances that they would

be an administrative nightmare for both

EPA and the hundreds of thousands of

persons and facilities which are

potentially subject to them.

We think that the system we have

promulgated today, although not perfect

in all aspects, is within the scope of

what Congiress intended when, in 1970,

it diiected EPA to establish hazardous

waste management standards which

were "necessary to protect health and

the environment" in eighteen months,

We do not think that Congress expected

EPA to develop a program which it

could not implement or enforce or to

indefinitely postpone the issuance of

regulations until it could develop

standards which would provide the

degree of precision desired by some

commenters. Neither of these

approaches would provide any health or

environmental protection at all.

In these regulations we have tried to

strike a balance between these two

extremes. Where we have failed to

achieve the right balpnce, we suspect

that this will become apparent in the

early stages of implementing the

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program. If there are situations where a

strict application of the standards

contained in these rules would bring

about a result which was obviously not

intended, we would appreciate being

advised of it so that we can take

appropriate action. We are prepared to

react to these problems with regulatory

amendments, interpretive guidance and

reasonable implementation and

enforcment, as appropriate.

E. Pending Legislative Amendments

The United States Senate and House

of Representatives have each recently

passed a bill to reauthorize and amend

RCRA (S. 1156 and E-R. 3994]. Both bills

contain amendments to Section 3001

which, if enacted, would repeal or

temporarily suspend EPA's authority to

regulate certain utility and energy

development wastes as hazardous

wastes under Subtitle C. These bills are

now awaiting action by a conference

committee. Because it appears likely

that Congress will act before

November 19, 1980 to exempt these

wastes, EPA has temporarily excluded

them from this regulation (see

§ 261.4(b)]. This exclusion will be

revised, if necessary, to conform to the

legislation which is ultimately enacted.

F. Consideration of Economic Impact of

the Development of the Regulations

In its proposed regulations, EPA

expressed uncertainty on the

appropriate role that cost considerations

and economic impact should play in the

development of the hazardous waste

regulations:

It is also not clear to what extent RCRA

allows economic impact to be taken into

account, since the Act is silent on this point.

Thus, the Agency is faced with the problem

of how to deal with these potential impacts,

with little economic data and without clear

Congressional guidance. (43 FR 58971)

A variety of comments were received

on this issue, expressing three

predominant themes: (a] The Act and its

legislative history require the Agency to

analyze its regulations in terms of costs

and benefits: (b) the legislative materials

preclude any consideration of costs in

the development of regulations; and, (c]

EPA must prepare an economic impact

analysis.

EPA has re-examined the legislative

history of RCRA. Although the

legislative history is sparse, it does

contain sufficient indications of

Congressional intent to lead the Agency

to the conclusion that EPA may not

consider cost burden upon industry in

choosing the level of its standards. The

Agency may, however, take cost

considerations in account in order to

select the most effective regulation

among various alternatives that meet

the statutory requirement of being "necessary to protect human health and

the environment." In addition, the

Agency may prepare economic analyses

to supplement its regulations as an aid

to congressional, intergovernmental, or

public understanding of the regulatory

program.

EPA disagrees with the position of

several commenters that cost, or

economic considerations more

generally, must be a factor in EPA's

decisions under Subtitle C. There is no

explicit requirement in the Act directing

EPA to consider costs in the

development of its intitial regulations.

The singular focus of protecting human

health and the environment

distinguishes RCRA from the other

major pollution control statutes. For

example, in developing effluent

guideline limitations under the Clean

Water Act, the Administrator is to

consider, among other things, "the total

cost of the application of technology in

relation to the the effluent reductions to

be achieved..." Section 304(b)(1](B),

33 U.S.C. 1314(b)(1)(B). See also Section

304(b)(2)(B). The Clean Air Act also

directs that in establishing new source

performance standards for stationary

sources of air pollution the

Administrator should "consider the cost

of achieving such emission reduction

and any nonair quality health and

environmental impact and energy

requirements." Section 111(a)(1](C, 42

U.S.C. 7211(a)(1)(C).

The silence of the statute itself

appears especially significant because

earlier drafts of the legislation had

contained language which either

explicitly called for considerations of

cost or implicitly sanctioned such

consideration. A draft bill for use by the

relevant House Subcommittee would

have required that hazardous waste

regulations "shall be such as will

minimize the risk of adverse effects on

human health while taking to the

greatest extent possible, into account

the economic cost and benefits of

achieving such standards." Section

351(e), Subcommittee on Transportation and Commerce, Draft of the Solid Waste

Utilization Act (December 8,1975).

When this bill was redrafted for

introduction to the House of

Representatives as H.R. 14496, this

provision calling for consideration of

costs and benefits had been deleted.

The House bill, however, required that

hazardous waste regulations "reasonably protect' human health and

the environment. H.R. 14496,94th Cong.,

2d Sess., § 306 (1976). The legislative

materials accompanying H.R. 14496

provided no guidance on what effect, if

any, the draftsmen intended the

potentially moderating phrase "reasonably protect' should have on the

development of regulations. In the

compromise bill reconciling the

differences between the Senate and

House bills, the adverb "reasonably"

was deleted. In the debate in the House

prior to the Act's passage there was no

discussion of the effect of this deletion

on the intended operation of the Act.

Congress was aware that the

hazardous waste regulation would

impose substantial costs on the

regulated community. See, e.g., H.R. Rep.

at 4. S. Rep. at 4. Despite this

recognition, Congress deliberately

rejected provisions that would require

consideration of cost burden on industry

or to moderate the Act's environmental

objectives. For these reasons, the

Agency concludes that the Act prohibits

it from considering such costs in the

development of Subtitle C regulations as

a basis for lessening the standards it

considers necessary to ensure protection

of human health or the environment.

The Agency has, however, considered

cost-effectiveness in choosing among

alternatives that meet the requirements

of the statute. In addition, the

Administrator may refer to other

considerations such as energy or

environmental impacts, and

implementation and enforcement

burdens. For instance, the information

received or developed in the course of

rulemaking on the cost implications of

its proposed regulations may be used by

EPA to determine the relative costeffectiveness of various methods to

implement a particular requirement.

Information on economic impacts may

also be useful in informing Congress

about the implementation of the

hazardous waste program, developing

new legislative or Agency intitatives

which might affect the regulatory

program, and advising the public about

the projected impacts of the program.

See Hercules, Inc. v. Environmental

Protection Agency, 598 F. 2d 91,113

(D.C.Cr. 1978). EPA has prepared an

economic impact analysis on the entire

Subtitle C regulatory program. This

analysis provides detailed information

on the projected economic impacts of

these regulations. The report should

facilitate public understanding of the

task that the Agency is undertaking.

G. Rulemaking Petitions

EPA's December 18,1978, proposed

Section 3001 regulations contained no

special procedures for petitioning the

Agency to identify a new characteristic

or list a new hazardous waste, or to

modify or revoke an existing

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

characteristic or listing.They simply

provided that a petition to identify a

characteristic or list a solid waste as a

hazardous waste would be granted if

EPA found that the proposed

characteristic or waste met EPA's

criteria for characteristics or listing

(proposed § 250.12(c)).

EPA received a number of comments

urging it to establish standardized

procedures for the submission and

processing of petitions to modify its

characteristics or list of wastes. Some of

these commenters simply wanted to

know how to file a petition and how

EPA would act on it. Others insisted

that EPA establish rulemaking

procedures which complied with the

Administrative Procedures Act,

mistakenly thinking that because

proposed § 250.12(c) did not articulate

the procedures EPA would follow in

acting on petitions, the Agency would

grant petitions, thereby modifyingitsregulations, without going through normal rulemaking procedures.

To provide the guidance desired by the first set of commenters and toassuage the concerns of the second, we

have included in Subpart C of Part 260

procedures for the submission and

processing of petitiois'to add to, revoke

or otherwise modify any of the Subtitle

C hazardous waste regulations,

including the hazardous wastecharacteristics and lists. This provision

expressly requires that a tentative

decision to grant a petition be made in

the form of an advance notice of

proposed rulemaking or a proposed

regulation, thus starting the rulemaking'

process.

EPA received a number of comments

suggesting that unless EPA specified the

information to be contained in petitions

to amend its characteristics or lists of

hazardous wastes, petitioners would not

know what type of data to submit to the

Agency and that the Agency would have

to expend a substantial amount of time

reviewing incomplete petitions.

EPA agrees that this may have been a

problem with its proposed regulation.

The Agency's proposed criteria for

listing *ere not particularly wellarticulated. In addition, the background

documents for characteristics and for

individual wastes also failed, in some

cases, to proyide meaningful guidance

as to the kinds of information which

should be submitted in a rulemaking

petition.

We think we have remedied most of

these deficiencies in this regulation.'In

response to comment, we have

substantially expanded the criteria for

listing, so that the factors which EPA

will be asing in making a listing decision

are much better stated. The background

- documents for both the characteristics

and lists have been materially upgraded,

so that they now provide a good model

for rulemaking petitions..In short, we

think the regulations published today,

with their supporting materials, will

enable petitioners to intelligently frame

rulemaking petitions.' . For this reason, EPA thinks it is

probably unnecessary to establish

detailed informational requiremefits for

petitions. Moreover, developing a list of

such requirements would be very

difficult, because the types of data and

degree of detail required will vary

substantially from Waste to waste and

from characteristic to characteristic. If,

in the future, EPA finds that most

petitioners.are submitting insufficient

information, we will reconsider

establishing more specific data

requirements for these petitions. EPA recognizes that some

organizations-primarily environmental

groups-May not have the skills,

resources, or data collection authority to

fashion rulemaking petitions which

contain all of the information which

EPA will need to make a decision to,

'establish a new characteristic or list a

new waste. Ifsuch petitions, although

incomplete, appear to have merit, EPA

will attempt to obtain the supplemental

data necessary to make a tentative

rulemaking determination. These

organizations should recognize,

however, that this will necessarily delay

any final action on their petitions.

IV. Subpart A.

A. Section 261.1 (Purpose, Scope and

Applicability)

Although this section is largely selfexplanatory, two points regarding the

function of EPA's Section 3001

regulation, which were apparently a'

source of misunderstanding during the

comment period,, are deserving of

special attention.

First, the purpose of this regulation is

to identify those wastes which, because

of the hazards they may pose in

transportation, treatment, storage or

disposal, should be subject to

appropriate management requirements

under Subtitle C. It does not dictate how

wastes should be managed (although it

may identify properties of the waste

which will affect management

practices).'Management standards and

permitting requirements are imposed

under Sections 3002 through 3005 and

Section 3010.

Second, although this regulation limits

what may be regulated as a "hazardous

waste" under Sections 3002 through 3005

and 3010 of RCRA, it does not limit

those materials which may be

considered "hazardous wastes" under

other sections of the statute, particularly

Section 3007 (which authorizes EPA to

obtain information on "hazardous

waste" in order to develop regulations

or enforce RCRA) and Section 7003

(which authorizes the Agency to

institute civil actions to abate imminent

and substantial hazards caused by

"hazardous wastes"). Unlike Sections

3002 through 3004 and Section 3010,

Congress did not confine the operations

of Sections 3007 and 7003 to "hazardous

wastes identified or listed under this

subtitle" (emphasis added). To avoid

future confusion on this point, EPA has

stated it explicitly in § 261.1(b).

B. Section 261.2 (Definition of Solid

Waste)

Because no material can be a

"hazardous waste" without first being a "solid waste".(Section 1004(5)), what

constitutes a "solid waste" is really the

definitional starting point for the

hazardous waste management system,

Section 1004(27) of RCRA defines a solid

waste as:

any garbage, refuse, sludge from a wastewater treatment plant, water supply

treatment plant or air pollution control

facility and other discarded material,

including solid, liquid, semisolid, or

contained gaseous material resulting from

industrial, commercial or mining and

agricultural operations, and from community

activities, but do'es not include solid or

dissolved materials in domestic sewage, or

solid or dissolved materials in Irrigation

return flows, or industrial discharges which

are point sources subject to permits under

section 402 of the Federal Water Pollution

Control Act. . . or source, special nuclear, or byproduct material as defined by the Atomie

Energy Act of 1954 ... (Section 1004(27)),

In its proposed regulations, EPA

adopted this definition, with its

exclusions, in its entirety (§ 250.11(a)(7)). In addition, it proposed

to construe the term "other discarded

material" in Section 1004(27) to include:

(1) Any material which is not re-usedi.e., is abandoned or committed to

final disposal;

(2) Any material which is re-used by

being placed in or on the land or

water so that the material or any

constituent thereof is released into the

environment; and

(3) Waste oil burned as fuel.

EPA noted that it would add other

uses to the third category of discarded

-materials if it found that it was

necessary to control such uses (43 FR

58954).

This definition of "other discarded

material" was based on four major

considerations, First, after reviewing

both the language and framework of

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

RCRA and its legislative history, EPA

concluded that Subtitle C was intended

to regulate hazardous wastes

irrespective of their end use-i.e.,

regardless of whether they are

committed to final disposal or intended

to be used, re-used, recycled or

reclaimed.

Second, the Agency concluded that all

hazardous wastes, regardless of their

end use, may pose significant health and

environmental hazards. Wastes that

present a hazard in storage or transport

arguably pose the same danger in

storage or transport irrespective of

whether they are destined for disposal

or for use, re-use, recycle or reclamation.

Wastes which are used or re-used by

being placed on the land-e.g.,

chemical-bearing sludges used as

fertilizers, contaminated waste oil used

as a dust suppressant on roads and

radioactive mining wastes used as

residential land fill-may pose almost

the same hazards as if they were simply

dumped there. Wastes which are used,

re-used, recycled or reclaimed in some

other fashion, and the facilities which

recycle or reclaim them, may also create

serious health or environmental

problems. For example, waste drums

containing hazardous residues which

were used as municipal trash cans have

injured children; waste solvent

reclamation facilities have caused

serious air pollution problems.

Third, EPA decided that excluding

wastes that are used, re-used, recycled

or reclaimed from the Subtitle C system

would make the regulatory program

largely unworkable and create a major

regulatory loophole not intended by the

Act. Without a manifest system (or its

functional equivalent) there would be no

way of assuring that wastes which were

intended to be used, re-used, recycled or

reclaimed were in fact delivered to their

intended destination. Whether a waste

was subject to Subtitle C requirements

would be based primarily on the intent

of the person handling it. This would

make the requirements difficult to

enforce and theoretically allow wastes

to move in and out of the hazardous

waste management system depending

on what the person then handling the

waste planned to do with it.

Finally, the Agency decided that,

insofar as feasible, its regulations

should try to achieve a workable

balance between the requirement in

Subtitle C that hazardous waste be

properly managed and RCRA's overall

objective of promoting the use, re-use,

recycling and reclamation of wastes.

The use, re-use, recycling and

reclamation of wastes not only helps

preserve valuable natural resources and

reduces the environmental problems

which stem from the exploitation of

those resources, but, if properly

conducted, may eliminate or reduce

some of the hazards associated with

other types of waste management and

alleviate the strain on national disposal

capacity. For this reason, EPA proposed

to regulate only those uses and re-uses

which could readily be expected to pose

significant health and environmental

hazards.

EPA received a substantial number of

comments on its proposed construction

of the statutory definition of "solid

waste" and "other discarded materials."

Virtually all commenters agreed that the

terms encompassed materials which

were destined for disposal. There was

substantially less consensus on EPA's

proposed regulation of used, re-used,

recycled or reclaimed wastes. Some

commenters argued that EPA had no

authority under RCRA to regulate

wastes which were used, re-used,

recycled or reclaimed. Others contended

that the Agency did have such authority

and that comprehensive regulation of

the use and recycling of hazardous

waste was essential to protect public

health and the environment and to make

the hazardous waste management

system workable. Still'other commenters

claimed that imposing stringent Subtitle

C requirements on waste use, re-use,

recycling and recovery would

discourage such activities, thwarting one

of the primary objectives of RCRA and

further aggravating hazardous waste

management problems.

1. Legal Authority to Regulate Wastes

That Are Used, Re-used, Recycled or

Recovered. Most commenters who

challenged EPA's authority to regulate

the use, re-use, recycling or reclamation

of wastes based their contention on the

term "other discarded material" in the

statutory definition of "solid waste".

The common meaning of this term, they

argued, would preclude regulating as "solid waste" wastes which were not

intended to be "thrown away" or "abandoned" or which were of "no

further use".

The United States Court of Appeals

for the D.C. Circuit has already rejected

this argument in United States Brewers'

Association, Inc. v. EPA, 600 F.2d 974

(D.C. Cir. 1979), a lawsuit challenging a

beverage container recycling guideline

issued by EPA under Section 1008(a)(1)

of RCRA. The petitioners in that

proceeding contended, inter alia, that

beverage containers were not "solid

waste" until "discarded" and therefore

that EPA had no authority under Section

1008(a)(1) to issue solid waste

management guidelines requiring that

beverages be sold in returnable

containers, or that a minimum deposit

be charged on containers (to encourage

their return). The Court of Appeals gave

short shrift to this contention, noting

that it:

flies squarely in the face of the explicit

definition in the statute. Section 1008(a)

directs EPA to publish "suggested guidelines

for solid waste management", which, as

defined In section 1004(30) expressly includes

"planning or management respecting resource

recovery and resource conservation"... and

"utilization of recovered resources" 1600 F. 2d

at 82-983].

We think the Court's conclusion is

applicable to the rest of RCRA as well.

It seems highly improbable that

Congress would have intended the term "solid waste" to include recycled wastes

under Section 1008(a)(1) but not under

Subtitle C. Indeed, RCRA and its

legislative history evidence a clear

Congressional intent that the terms "solid waste" and "hazardous waste"

encompass wastes that are used, reused, recycled or recovered wherever

such terms are used in the statute.

For example. Section 1004 of RCRA

contains numerous definitionsincluding the definition of "Hazardous

Waste Management", the title of

Subtitle C-which would be self

contradictory if the terms "solid waste"

and "hazardous waste" did not include

wastes which were used, re-used,

recycled or recovered. See, e.g., Sections

1004(7), (18)-(24). (29) and (34). The

repeated references to resource recovery

and conservation in the statute would

be similarly meaningless if solid wastes

were never recycled, recovered or

reclaimed. See, e.g., Sections 1002(c)(2]

and (3). 1003(1) and (5)-8), 2003,

4002(c)(10), 4003(5) and (6), 4008(a][2](A)

and (d), 5001. 5002 and 6002(c)--fg).

The legislative history of RCRA

further supports this construction of the

terms "solid waste" and "discarded

material". The report of'the House

Committee on Interstate and Foreign

Commerce on RCRA, for example,

makes it clear that the term "discarded

material" is meant to expand, not limit,

the common meaning of the term "solid

waste" (H.R. Rep. at 2]. Other references

in the legislative history confirm that the

term "discarded material" covers

wastes which are being recycled (see,

e.g., H.R. Rep. at 3,10). Several of the

damage incidents cited by Congress as

justification for establishing a national

hazardous waste management system

resulted from recycling or re-use

activities (H.R. Rep. at 17,19 and 22).

Discussions of resource conservation

and recovery activities presume the

existence of a solid waste from which

valuable resources can be reclaimed.

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3 FeqderaJgegister / Vpl.45, No. 98 J, Monday,! May J,_ 1980 / Rules and Regulations

See, e.g., H.R. Rep. at 3, 4, 10, 11; S. Rep.

at 2, 4, 6 (1976).

-In short, under RCRA solid wastes-do

not cease to be solid wastes simply • because they are being used, re-used,

recycled or reclaimed. Rather, use, reuse, recycling, resource recovery and

reclamation are ways of managing solid

wastes which, if properly conducted,

can avoid environmental hazards,

protect scarce land supply, and reduce

the nation's reliance on foreign energy

and materials (H.R. Rep. at 4). . A number of commenters suggested

that Congress could not have intended

the term "solid waste" to include , hazardous wastes which are used, reused, recycled or reclaimed because the

regulation of such wasfes under Subtitle

C would thwart RCRA's broad resource

conservation and recovery objectives.

EPA does not agree. Although

promoting waite re-use and i'ecovery is

certainly-one of the goals of RCRA,

Subtitle C does not require EPA to

consider resource recovery implications

in establishing hazardous waste

management standards; nor does it

suggest that promoting'resource

recovery should take precedence over

assuring proper management of

hazardous wastes. Furthermore, EPA

does not agree that frustrating resource

recovery is an inevitable result of -

requiring hazardous waste to be

properly managed. As discussed below,

EPA believes it may be possible to

achieve a workable balance-between

Subtitle C's mandate that hazardous

wastes be handled in an

environmentally sound manner and

RCRA's overall objective of encouraging

th re-use andxeclamation of wastes.

However, in the -event such a balance,

,cannot be achieved, Congress' "overriding'cocern"-the safe handling

of hazardous wastes (H.R. Rep. at 3) and

the elimination of "the last remaining

loophole" in environmental regulation

(H.R. Rep. at 4)-must prevail. . 2. Assuring Proper Management of

Hazardous Waste and Encouraging

Resource Recovery. The comments

which EPA received on its proposal to

regulate the use, re-use, recycling and

recovery of hazardous waste in-many

ways-mirrored the competing objectives

which the Agency was trying to achieve

in its proposal. Many commenters

argued that EPA's approach would

'discourage the beneficial use and

recycling of hazardous wastes by so

escalating the cost of using or recycling

wastes that they could no longer

compete with virgin products, by

increasing administrative burdens for

the waste user or reclaimer, and by labeling recycling activities as another

form of."hazardous waste"

management. These commenters also

suggested that the regulation of waste

uses and reclamation would pose

serious practical problems-e.g.,

distinguishing between wastes and

commercial by-products and

intermediates, issuing permits for

certain types of re-uses-and that EPA's

proposed Section 3004 standards were

not-appropiate for many waste use and

reclamation activities. Other

commenters, citing the types of

considerations outlined above,

applauded EPA's regulation of the use

aftd reclamation of hazardous wastes

and urged that its proposed list of

regulated waste re-uses and recycling

operations be expanded to include the

reclamation of waste solvents, the'

burning of spent catalysts and other

organic wastes for energy, the use of

metal-bearing sludges as fertilizers, the

use of waste acids, and the re-use of

contaminated drums. Still other

commenters suggested that, at a

minimum, wastes destined for re-use, or

reclamation be properly stored and

manifested.

EPA does not agree with the largely unsubstantiated claims of commenters

that controlling the use and recycling of

hazardous waste will necessarily

discourage bona fide, environmentally

sound re-use and reclamation activities.

The impact of EPA's regulations on

waste use and recovery will, in the

Agency'-opinion, hinge almost

exclusively 6n the relative costs of reuse versus disposal. As disposal costs.

increase, it seems reasonable to expect

that it will become profitable or more

profitable to recycle or re-use wastes

(even if regulated) than to dispose of

them. EPA received no data during the

comment period to suggest the contrary.

Commenters' claims about the chilling

effect of regulating recycle and re-use

activities also seem somewhat

exaggerated. In many cases, Federal or

State regulation of these activities

should legitimatize, not stigmatize, them

in the eyes of the public and increase

the flow of wastes to well-operated

facilities. Indeed, EPA received

comments from several waste recyclers urging the Agency to extend Subtitle C

control to their operations for these very

reasons.

EPA does agree, however, that its

proposed Section 3004 treatment and

disposal standards (as well as the

standaras promujgated today) may not

be well-suited for regulating all

hazardous wast6 recovery and

reclamation facilities or for regulating

all uses and re-uses of hazardous waste.

These standards aredesigned primarily

to minimize the health and

environmental hazards posed by

traditional hazardous waste treatment

and disposal facilities-such as

incinerators and landfills. In many

cases, the health and environmental

dangers associated with the use or reuse of hazardous waste or with the

recycle and reclamation operations are

different in nature or degree, and

therefore may justify the imposition of

different management standards. For

example, air emissions generated by the

burning of waste oil for energy recovery

can probably be effectively controlled

without requiring boilers to meet

hazardous waste incinerator

requirements. Similarly, the leaching of

metals from slag used in roadbeds can

probably be successfully minimized

without requiring compliance with

Section 3004 landfill criteria.

At the same time, EPA also concedes

that its proposed Section 3001

regulations probably did not go far

enough in controlling the re-use and

reclamation of hazardous waste. For

example, there are a number of waste

recycling operations which were not

covered by EPA's proposed regulatione.g., solvent reclamation-which havebeen known to cause serious health and

environmental hazards and should be

subject to Subtitle C regulation, The

long-term storage of hazardous wastes

prior to recycling is another area where

there have been damage incidents (e.g,,

the incident at the Silresim Chemical

Company) and where Subtitle C controls

would appear to be essential for

environmental protection.

In short, EPA acknowledges that it

could have done a better job in its

proposed regulations of attempting to

balance Subtitle C's mandate that

hazardous wastes be properly managed

withRCRA's overall objective of

promoting resoutce recovery. As we

discovered during the comment period,

however, this is not an easy task, and

given other priorities in developing .the

regulations promulgated today, we have

only been able to complete the first

phase of it to date, That first phase, as

well as EPA's long term plans for

regulating the use, re-use, recycling and

reclamation of hazardous wastes are

discussed in sections IV.B.3. and IV.B.4.,

respectively, of this preamble. As

indicated in those sections, we believe

this program, when completed, will be

responsive to the two major deficiencies

in EPA's proposed regulation Identified

above.

3. Regulating the Storage and

Transportation of Hazardous Wastes

Prior to Use, Re-use, Recycling or

Reclamation; Defining "Waste". As

discussed above, EPA generally agrees

................................ II "' ll'i i ,,+33 092
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

that many of its proposed (and final)

treatment and disposal standards were

not particularly well-suited for

hazardous waste recycling and

reclamation operations or for uses and

re-uses of hazardous wastes. Because of

the need to resolve other, more pressing

issues in the rule published today, we

have not been able to formulate more

appropriate standards to date. We are

therefore deferring Subtitle C regulation

of the actual use and re-use of

hazardous wastes and hazardous waste

recycling and reclamation activities

until such standards can be developed

(§ 261.6(a)). As noted in section IV.B.4.,

we hope to begin issuing those

standards later this year.

This temporary deferral, it should be

noted, is confined to bonafide

"legitimate" and "beneficial" uses and

recycling of hazardous wastes. Sham

uses and recovery or reclamation

activities--eg., "landfilling" or "land

reclamation" which is actually disposal

and burning organic wastes that have

little or no heat value in industrial

boilers under the guise of energy

recovery-are not within its scope and,

if conducted in violation of Subtitle C

requirements, will be subject to

enforcement under Section 3008 of

RCRA. In enforcing this provision, EPA

will be particularly suspicious of use,

and reclamation operations which were..

not conducted prior to the publication of

these regulations.

We do not think that the types of

criticisms which have been made of

EPA's proposal to apply its treatment

and disposal standards to the use, reuse, recycling and reclamation of

hazardous waste are applicable to those

regulations which govern waste -. management prior to actual use, re-use,

recycling or reclamation-i.e., the

standards for generators, transporters

and owners and operators of storage

facilities. Diring these stages of the

waste handling process, wastes present

essentially the same hazards, and

should therefore require essentially the

same management, irrespective of

whether they are destined for disposal

or for re-use and recycling. EPA has concluded, therefore, that

although we are not now prepared to

issue standards regulating the actual

use, re-use, recycling and reclamation of

hazardous wastes, we can and should

begin to control the transportation and

storage of wastes prior to use, re-use,

recycling and reclamation, and that the

general management standards set forth

in Parts 262, 263 and selected sections of

Parts 264 and 265 are entirely

appropriate for that purpose.

The decision to regulate hazardous

waste use and recycling necessitates the

development of a working definition of "waste" which can appropriately

distinguish between "wastes" and other

materials (such as products and

chemical intermediates) for purposes of

determining whether their use is subject

to RCRA's jurisdiction. Indeed, many

commenters criticized EPA for failing to

clearly distinguish between wastes and

other materials in its proposed

regulations and suggested language or

conceptual approaches which they

contended would draw that distinction.

We have carefully reviewed these

suggestions; most, however, were not

very useful. For example, a number of

commenters suggested that the line of

demarcation between a "waste" and

other materials was whether a

substance had value. This definition

makes no sense in the context of recycle

and re-use activities, since a waste

which is being re-used or recycled by

definition "has value". See HR. Rep. at

3. Definitions keyed to whether a waste

has a commercial use raise similar

problems.

Other commenters contended that the

proper inquiry was whether a material

was "historically reused" or was "sometimes discarded". We think this is

d much more productive line of analysis

and is more consistent with the

language and legislative history of

RCRA and the purposes of Subtitle C.

A review of both RCRA and its

legislative history indicate that Congress

intended to regulate four broad

categories of materials as solid wastes

-under RCRA, and particularly Subtitle

C, irrespective of their ultimate

disposition. The common thread linking

all these materials is that they are "sometimes discarded." Because they

are "sometimes discarded." they not

only fall within the general rubric "waste", but also may become part of

the "discarded materials disposal

problem" (HR. Rep. at 2) which

Congress sought to remedy under RCRA.

Proper tracking and management of

these materials under Subtitle C would

assure that they did not become part of

this problem because they would be

either properly disposed of or properly

used or reclaimed.

The first category of materials which

are regulated as "wastes" under RCRA

are "garbage, refuse (and) sludge"

(Section 1004(27)). These materials are

almost always thrown away, and it is

-clear from both Section 1004(27) of the

statute and its legislative history (H.R.

Rep. at 2-4; S. Rep. at 5) that Congress

regarded them as "wastes" regardless of

their intended end use.

Of those materials which are not

garbage, refuse or sludge, it also seems

clear that any material which is

intended to be or is in fact thrown away,

abandoned or destroyed is a "waste."

As noted above, there appears to be no

disagreement among commenters on this

point and of course it is fully supported

by the legislative history of RCRA.

Of those materials which do not fall

into either of these two categories-! e.,

materials other than garbage, refuse or

sludge which are (or are intended to be)

used, re-used, recycled or reclafined-it

appears that there are two types of

substances which Congress intended to

be regulated as "wastes" under RCRA.

The first &e materials like waste

solvents, paint wastes, waste acids,

used drums and waste oil. These are

what Congress referred to in the

legislative history as "post-consumer

wastes" or wastes which have "served

their intended purpose" (HR. Rep. at 2

and 9). While acknowledging that some

of these post-consumr wastes might be

recycled (see ER. Rep. at 3,10),

Congress also recognized that they were

sometimes discarded, and therefore

were "wastes" (see HR. Rep. at 9-10).

The second are tars, residues, slags

and other materials which are

incidentally generated as part of a

manufacturing ormining process. A

major concern of Congress in enacting

RCRA was to assure regulation of "the

waste by-products of the nation's

manufacturing processes" (HR. Rep. at

2) and "the by-products of the

productive process" (H.R. Rep. at 9).

There is nothing in the legislative

history which suggests that these terms

refer only to the by-products of pollution

control. Indeed, even the definition of

sludge in Section 1004(26A) indicates

Congress was not simply concerned

about wastewater treatment slurries and

sludges and emission control dusts, but

also materials having "similar

characteristics and effects". The term "similar characteristics" would suggest

that such materials not only contain

similar types of substances but, like

pollution control sludges and dusts, are

also incidentally produced as a result of

industrial processes; the term "similar .. effects" implies that such materials,

like wastewater and emission control

sludges, are also sometimes discarded in

ways that pose environmental problems.

EPA has incorporated these concepts

into a definition of "solid waste" in

§ 281.2. This term is defined to include

"garbage", "refuse", "sludge" and "other

waste material" (§ 261.2(a)). "Other

waste material" is in turn defined as (i]

materials which are discarded (or stored

or accumulated for that purpose], (ii]

materials which have served their

original intended purpose and are

sometimes discarded and (iii) materials

which are incidentally generated during

33093
33094 Tederal Register I Vol. 45, No. 98 [ Monday, .May 19; 1980 / Rules and Regulations "

manufacturing or mining operations and

are sometimes discarded (§ 261.2(b)).

This latter category of materials

expressly excludes primary products

and product intermediates (§ 261.2(d)).,

We are fairly confident that this

definition will properly differentiatebetween "wastes" and other material

with respect to those particular solid,

wastes that have been listed as

hazardous wastes in Subpart D. In

developing Subpart D, EPA has been

careful to list only those materials that are either sludges, used materials which

are typically discarded (e.g., spent

solvents) or manufa6turing by-products

which_ are typically discarded (e.g.,

distillation residues). We have triad to,

avoid listing materials that are always

used for manufacturing other products,

because we believe that those are

actually product intermediates, not

wastes. Given the complexity of many

manufacturing operations, however, it is

possible that we might have erred in a,

few cases and.we urge the public to

bring these to our attention.

We are somewhat less confident that

our defirrition-of solid waste,

particularly its inclusion of used

materials and by-products, will work fo

all the materials which might exhibit the

Subtitle C characteristics. For this

reason, we are at the present time

confining our regulation of the storage

and transporthtion of wastes prior to

use, re-use, recycling and reclamation to

sludges, wastes listed in Subpart D and

waste mixtures containing wastes listed

in Subpart D (§ 261.6(b)). As discussed

above, we are fairly sure that all these

materials are "wastes" whose use', reuse, recycling and reclamation is subjecl

to jurisdiction under RCRA.

As noted in Section III.B., the

definition of "solid waste" is being

issued as an interim final regulation. We

are expressly soliciting comment on

whether its application to unlisted

materials (as well as listed Wastes)

leads to absurd results, and, if so, what

these situations are and how they might

be remedied by specific revisions to

§ 261.2.

4. Regulating the Acttial Use, Re-Use,

Recycling and Reclamation of

Hazardous Wastes. Ong approach to,

regulating the use, re-use, recycling and

reclamation of hazardous wastes which

a number of commenters suggested and

which EPA is cbonsidering very seriously

is waste-specific, use-specific

management standards. This approach

would help avoid the problems,

discussed above, of attemptingrto apply

standards which are designed to deal

with'traditional waste disposal and

treatment operations, such as landfills,

to re-use and recycle activities.

EPA intends to begin issuing such

standards in the fall of 1980. In some'

cases, these standards may require full

orpartial compliance-with existing

Subtitle C requirements; in others, they

may include a special set of

requirements,(to be established in Part

266) which have been developed for a

particular hazardous waste use or

recovery operation. Using this

regulatory approach, we believe we can

not 6nly better tailor Subtitle C "

management standards to the health

and environmental hazards posed by

use and recycling activities but also

achieve a better balance between

RCRA's dual goals of protecting human

health and the environment and

promoting resource conservation and

recovery.

In the fall of 1980, we expect to start

dealing with the following hazardous

wasteuseuand recovery operations:

Waste Use or Recovery

Spent solvents listed in Reclamation

Subpart D. Burning as a fuel

Radioactive uranium mining Land recanmation

and phosphate mining and Use in building products

processing wastes. WasteI. .... Road oiling and use in other

land applications

,Burning ' as a fuel,

Reclaiming and re-refining

Residues from the production Burning as a fuel

of chlorinated hydrocarbons.

These operations were identified by

commenters as being among those

which posed the most serious potential

health.or environmental hazards and/or

were' the most ubiquitous. EPA agrees,

and therefore will begin establishing

standards for these activities first.

At a later date, possibly by the fall of

1981, we intend to address the re-use

and recycling. of other hazardous

wastes, including but not limited to the

following:

Waste ,Use or Recovery

Residues from the production of Burning as a fuel

organic chemidalslisted in SubpartD .(other:thari chlorinated hydrocarbons).,

Activated cron used to treat Regeneration

hazardous wastes.

Wastewater and -air emission Fertilizers and soil

treatment sludges listed in Sub- , conditioners

part D. Other uses on the land

Eventually, EPA hopes to regulate the

use, re-use, recycling and-reclamation of

all hazardous'wastes'listed in Subpart D

which are known to be used, re-used or

recycled. Our plans for Extending

regulatbry coverage to unlisted

hazardous wastes are'less certain at this

time because we do not have a good

inventory of these wastes. As data are collected thirough the Section 3010

notification and annual reporting under

Parts 262, 264 and 265, we hope to

develop a more specific plan for

regulating the use and recycling of these

wastes.

EPA is anxious to obtain public

comment on this approach. We

specifically invite comments on the

following questions:

1. Are there other hazardous.wastes,

particularly wastes listed in Subpart D,

that should be placed on the above lists

and given priority?

2. Are the above-listed wastes used or

recycled in other ways that require

.regulation? If so, what types of

regulatory controls would be

appropriate?

3. Is there any reason not to prohibit

the land disposal of spent solvents listed

in Subpart D and require that they be

reclaimed or destroyed? Is it necessary

to manifest these wastes to assure that

they are delivered to reclamation or

treatment facilities? Can such facilities

be effectively regulated by rule-i.e.,

without individual permits?

4. Can the radiation hazards posed by

radioactive mining wastes and

phosphate mining and processing

wastes be adequately controlled by (a)

prohibiting the use of these Wastes in

residential construction and (b)

imposing a few simple requirements on

the use of these wastes as fill for land

where habitable structures might be

built?

5. Can facilities which burn waste oil

as a fuel or reclaim or refine waste oil

be adequately regulated by rule-i.e.,

without individual permits? Is there any

reason not to prohibit the use of waste

oil for road oiling, dust suppression and

other land (and water) applications?

6. Should full Subtitle C standards be

applied to the use, re-use, recycling and

reclamation of residues from the

production of chlorinated hydrocarbons?

From the production of other organic

chemicals? If not, for what residues and

uses should special standards be

applied andwhat should those

standards be?

7. Should full Subtitle C standards be

applied to the regeneration of activated

carbon? If not, what standards should

be applied?

8. Can sites where waste treatment

sludges are used as fertilizers, as soil

conditioners or in other land

applications be effectively regulated by

rule-I.e., without individual permits?

In each of the foregoing areas of

inquiry, EPA would appreciate the

submissiori of any relevant facts and

data. Unsubstantiated opinions are

generally not very helpful to us in

coming to grips with these types of

issues. On the other hand, information

on the quantity of waste which is' used
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

3309J5F
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

whenever it exhibits one or more of the

characteristics. As a practical matter,

this means that persons handling solid

wastes must determine whether they

meet the characteristics whenever the

management of the solid wastes would

potentially be subject to EPA's Part 262

through 265 regulations.

The following examples illustrate how

this provision would operate in practice:

* The ABC Company stores waste

acid on-site in cofitainers prior to

transport off-site for disposal. The

company must determine whether the

acid meets Subpart C characteristics,

when it is poured into the containers.

o The DEF Company pipes waste acid

into a tank, where it is neutralized by

adding lime. The company must

determine whether the acid meets

Subpart C characteristics when it enters

the neutralization tank. The

neutralization operation is a treatment

process.

The GHI Company pipes waste acid

into a tank truck for transport to an offsite treatment facility. The company

must determine whether the acid meets

Subpa;t C characteristics when it enters

the tank truck.

* The JKL Company produces a

wastewater which is piped into a

surface impoundment, for the purposes

of treatment prior to point-source

discharge into surface waters. During

treatment a sludge forms. This sludge is

periodically dredged from the

impoundment and disposed of. The

company must determine (1] whether

the wastewater meets Subpart C

characteristics when it enters the

impoundment and (2] whether the

sludge meets Subpart C characteristics

when it begins to accumulate on the

bottom of the impoundment.

In drafting paragraph (b), EPA has

attempted to cover the most common

types of waste generation and,

management scenarios. The Agency

recognizes, however, that some

companies may generate and handle

wastes-in ways not contemplated by

EPA and for which a strict application of

paragraph (b) would make no sense. We

would appreciate having those instances

brought to our attention so that we can

decide whether additional rulenraking or

issuing guidance is appropriate for

dealing with these situations.

3. When Does a Hazardous Waste

Cease to be.a Hazardous Waste? . Paragraphs (c) and (d) of this section

explain when a hazardous waste ceases

to be a hazardous waste and therefore is

no longer subject to Subtitle C

requirements. These are new provisions.

which have been added both in

response to comment and as a logical

outgrowth of paragraph (b).

Paragraph (c) provides that a

hazardous waste remains a hazardous

waste unless and until (1) it does not

exhibit any of the characteristics o

identified in Subpart C and (2) where

the waste is listed in Subpart D (or is a

mixture containing a waste listed in

Subpart D), the waste (or each of its

constitutent listed wastes) is also

excluded from paragraph (c) under the

rulemaking procedures outlined in

§ § 260.20 and 260.22. As a -practical

matter, this meang-that facilities which

store, dispose of or treat hazardous

waste must be considered hazardous

waste management facilities for as long

as they continue to contain hazardous

waste and that any wastes re'moved

from such facilities-including spills,

dis'charges or leaks-must be managed

as hazardous wastes.

EPA believes this is a very reasonable

and rational rule. Wastes are typically

stored for relatively short periods of

time. Although solids in the waste-may

settle and the volume of the waste may

be reduced by evaporation during this

period, major chemical or biological

changes affecting the hazardous

character of the waste are unlikely to

occur. Hazardous wastes which are

disposed of in a landfill are more likely

to undergo change (principally through

leaching and anaerobic degradation),

but pnly very slowly and over a long

period of time.

Hazardous wastes placed in treatment

facilities (including incinerators, surface.

impourldments and land treatment

facilities) will, by definition, change

character. However, treatment does not

necessarily "render tal waste

nonhazardous" (Section 1004(34)). It

may only make it "amenable for

recovery, amenable for storage or

reduced in volume"; or it may only

eliminate one of several hazardous

properties. Moreover, even in those

cases where treatment does ultimately

render a waste "nonhazardous", the

waste will generally have been

hazardous during part or all of the

treatment process.

Paragraph (c) establishes a similar

rule with respect to solid wastes'

generated by storage, disposal and

treatment-including leachate and

treatment residues such as sludges and

incinerator ash. Here, too, it is

reasonable to assume that these wastes,

which are derived from hazardous

wastes, are themselves hazardous.

Leachate is produced by the

percolation of liquid through-wastes; it

typically contains solubilized heavy

metals and organic materials and is

virtually always highly toxic. Treatment

residues, by definition, contain waste

constituents which' were removed during

treatment or which were not completely

destroyed by treatment. Sludges from

wastewater treatment typically contain

concentrated amounts of the toxic

substances which were in the

wastewater. Ash from the incineration

of hazardous wastes often contains

heavy metals and, if combustion is not

complete, undestroyed toxic organic

materials.

This is the best regulatory approach

we can devise at this time for dealing

with solid wastes generated by

hazardous waste management facilities,

We are not now in a position to

prescribe waste-specific treatment

standards which would identify those

processes which do and do not render

wastes or treatment residues

nonhazardous. To list treatment

residues on case-by-case basis would be

an enormous job, and one ivhich we

think, given the reasons outlined above,

is unnecessary.

This approach obviously is not

without deficiencies. For example, one

effect of treating wastes containing

synthetic organic materials may be to

create new hazardous constituents in

the waste or treatment residue. This

regulation obviously does not deal with

those new constituents. It also does not

cover run-off from hazardous waste

facilities on the theory that the water in

precipitation run-off in many cases may

not have had sufficient contact with the

waste to solubilize waste constituents.

(Of course if collected, run-off would be

a solid waste and, if it exhibited any of

the characteristics, would have to be

managed as a hazardous waste). For

purposes of future rulemaking, we would

be interested in any suggestions the

public has for dealing with these issues.

D. Section 261.4 (Exclusions)

EPA's proposed Section 3001

regulations identified a number of

wastes which would not be subject to

Subtitle C requirements because they

were either excluded from the statutory

definition of solid waste (§ 250.11(a)(7)),

not intended by Congress to be

regulated under Subtitle C (§ 250.10(d)(2) (i) and (ii)), or subject to regulation

under other EPA statutes

(§ 250.10(d)(2)(iii)).

EPA received a number of comments

on these proposed exclusions. Some

commenters simply urged EPA to clarify

which wastes were covered by each of

the exclusions. Others challenged EPA's

justification for some of its proposed

exclusions. Still others contended that

additional wastes should be exempted

from regulation based on legislative

history or an alleged lack of

demonstrated harm to human health or

the environment.

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The exclusions contained in § 261.4

are based on interpretations of the

statutory definition of "solid waste" and

on those parts of RCRA's legislative

history which indicate a Congressional

intent that certain waste streams should

not be regulated. Some commenters

suggested that certain waste streams

would never be hazardous and therefore

should be excluded from these

regulations. Those commenters did not,

however, provide sufficient information

on which EPA could base such sweeping

determinations. Generators of solid

wastes that are not hazardous may

determine that their wastes are non- hazardous under these regulations. As

these regulations are implemented more

information will be developed about

specific waste streams. EPA will then be

in a better position to make categorical

judgments about the lack of risk

presented by certain wastes. At this

time, however, EPA has limited the

exclusions in § 261.4 to those which are

based on expressed Congressional

intent.

The following is a discussion of the

specific exclusions contained in § 261.4:

1. Domestic Sewage. In defining "solid

waste" Section 1004(27) specifically

excludes "solid or dissolved material in

domestic sewage." The proposed

regulation did not specifically define

"domestic sewage", but did contain

provisions that were based on an

interpretation of that term. Section

250.40(c)(3) of the proposed regulation

exempted owners and operators of

POTW's from all portions of the Section

3004 standards except those involving

the manifest system, recordkeeping and

reporting with respect to hazardous

wastes received by truck or rail. As

described in the preamble to the

proposed regulation, that decision was based on the idea that the mixing of a

hazardous waste with domestic sewage

made the entire mixture a domestic

sewage excluded under Section 1004(27].

Cominmenters raised several objections

to this approach. First, commenters

argued that the only basis for an

exclusion under Section 3004 is one

based on health or environmental risk

rather than public ownership. Second,

commenters argued that some POTW's

will handle significant quantities of

hazardous waste and that such facilities

present the same environmental risks as

private facilities that treat, store or dispose of hazardous waste. Third, some

commenters merely argued that if

POTW's are excluded because they

handle a significant portion of domestic

sewage, other private parties that

handle wastes of a similar mix should

be excluded also. Fourth, a commenter

said that the proposed regulation did not

clearly indicate whether a POTW could

ever be subject to Subtitle C jurisdiction if it only treated industrial waste.

The term "domestic sewage"

generally denotes sanitary wastes that

pass through a sewer system. A waste

stream comprised entirely of sanitary

waste, that passes through a sewer

system is "domestic sewage" under any reasonable interpretation of the

statutory exemption. This exemption applies regardless of whether the sewer

system or the treatment works to which

it connects is publicly or privately owned.

A more difficult question is presented when pure sanitary wastes are mixed

with other types of wastes in a sewer

system. The issue of whether such

mixed waste streams are within RCRA's

jurisdiction has broad implications and

thus it is necessary to carefully consider

the Congressional purpose behind the

exemption.

The legislative history of RCRA does

not specifically address the exemption

because it was a carry-over from the

Solid Waste Disposal AcL which RCRA

amended. The "domestic sewage"

exemption first appeared in the

definition of "solid waste" found in the

Solid Waste Disposal Act of 1965. The

legislative history of that act indicates

that the exemption was based on a

recommendation, made to the Congress by the Administration, that "organic

solids in untreated domestic sewage" be

excluded from coverage because such

wastes were already subject to controls

under the Federal Water Pollution

Control Act (FWPCA). At that time, the

portion of the FWPCA that addressed "untreated sewage" was the Federal

construction grant program, which gave

money to States and municipalities to

construct treatment works and to study

combined sewer systems. This legislative history suggests a

Congressional intent that the scope of

the "domestic sewage" exemption must

depend, in part, on the capacity of the

Agency's construction grants program to

address the environmental problems

arising from any exempted waste

streams. At the time the exemption was

enacted, and under the present Clean

Water Act, the Agency has grant

programs that assist states and localities

in the treatment of sanitary sewage by

POTW's.

EPA believes that the Congressional policy reflected in the legislative history

of the "domestic sewage" exemption

should guide the Agency in its regulation of mixtures of sanitary waste with other

waste streams. Mixed wastd streams

that pass through sewer systems to

publicly-owned treatment works

(POTW's) will be subject to controls

under the Clean Water Act. The

Agency's construction grants program

provides financial assistance for the

proper treatment of these wastes. In

addition the Agency's pretreatment

program provides a basis for EPA and

the local communities to insure that

users of sewer and treatment systems

do not dump wastes into the system that

will present environmental problems.

Under these circumstances EPA believes

that it is appropriate to include within

the "domestic sewage" exemption

mixtures of sanitary wastes and other

wastes that pass to POTW's. Since the

treatment of sewage by privately-owned

treatment works is not similarly

controlled through the Agency's

construction grant and pretreatment

program, the exemption would not be

available for mixed waste streams going

to such treatment works.

The "domestic sewage" exemption is

only applicable to non-domestic wastes

that mix with sanitary wastes in a sewer

system leading to a POTW. An

industrial waste stream that never

mixes with sanitary wastes in the sewer

prior to treatment or storage does not

fall within the exemption, regardless of

the public or private ownership of the

treatment works. Defining the point at

which "mixture" occurs may seem to be

a relatively straightforward task.

Practical problems arise, however, in

defining the point at which mixture of

sanitary and other wastes occurs in a

complex sewer system. Moreover it is

particularly difficult to define this point

for regulatory purposes in such a way

that all parties understand when RCRA

obligations begin and end.

EPA has, therefore, decided that a

waste falls within the domestic sewage

exemption when it first enters a sewer

system that will mix it with sanitary

wastes prior to storage or treatment by a

POTW. EPA recognizes that this

interpretation brings various wastes

within the exemption before they are

actually mixed with sanitary wastes. In

light of the fact that the wastes will be

mixed prior to treatment and that the

mixture will be properly treated by the

POTW, EPA believes that the need for

administrative clarity in this otherwise

complicated regulatory program

warrants such an approach.

In response to the comments on the

exclusion of POTW's from Section 3004

standards, EPA has changed these

regulations to make clear that the

statutory exemption is one for "domestic

sewage" rather than POTW's. Facilities

receiving waste streams that are

exclusively made up of sanitary wastes

will not be subject to these'regulations

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regardless of the public or private

ownership of the facility. Likewise a

POTW receiving industrial wastes that

do-not mix with sanitary wastes prior to

treatment would be handling a solid

waste subject to these regulations. The, exclusion of domestic sewage and

mixtures that pass through sewer

systems to POTW's is based on

Congressional intent,'not an Agency

determination about the'relative health

and environmental risks presented by

such waste streams. The Agency

acknowledges-that some mixtures of

domestic sewage with other wastes may

present environmental risks and that

some non-domestic Wastes may have

properties similar to these of exempted

domesticwastes. In response EPA can

only assume that such factors were not

determinative in the Congress' creation

of the exclusion.

The proposed regulation did not

contain a specific definition of domestic

sewage. EPA believes that the definition

of domestic sewage, and the provision

relating to mixtures of wastes with

domestic sewage, contained in these

regulations is a reasonable

interpretation of RCRA's statutory

language and legislative history. The

Agency has decided, however, to - promulgate this part .of the regulation as

interim final in order to gain the benefit

of public comment on the concepts

involved. The Agency considered

several options for defining domestic

sewage and classifying mixtures of such

sewage with other wastes. Those

options included:

(1) Defining "domestic sewage" to

include all wastes mixed with sanitary

wastes;

(2) Limiting the exemption to only

sanitary wastes, treating any mixture of

sanitary wa'stes and other wastes as

solid wastes;

(3) Defining "domestic sewage" as any

waste made up primarily (i.e. more than

50% by volume) of sanitary waste

streams; and

(4] Linking the exemption for mixtures

to those that flowed into a "publiclyserving" or "cons tructed-to-s erve-thepublic" treatment works, rather than

POTW's.

The Agency is interested in comments

on these options and the selected

approach, as well as any other

suggested interpretations of the

provision. Commenters should recognize

that the Agency's selected approach is

based on an interpretation of

Congressional intent. The Agency is

interested generally in comments about

the impact of this approach on regulated

parties, but it particularly seeks

comment on how such effects relate to

the Congressional purpose of the

exemption expressed in RCRA's

legislative history.

These regulations, then, define

domestic sewage as untreated sanitary

wastes that pass through a sewer

system. Such wastes are excluded from

regulation as solid wastes under these

regulations. In addition mixtures of

wastes with domestic sewage that pass

through a sewer system to a publiclyowned treatment works for treatment

are also excluded from regulation as

solid wastes. I

2. Industrial Point Source Discharges.

The statutory definition of "solid waste"

in Section 1004(27) of RCRA excludes' "solid or dissolved materials in...

industrial discharges which are p6int

sources subject to permits under Section

402 of the Federal Water Pollution

Control Act". Iji its proposed

regulations, EPA construed this phrase

to include only actual discharges into

navigable waters, not industrial

wastewaters upstream from the point of

discharge. The effect of this

interpretation was to require surfaceimpoundments, tanks, lagoois, holding

ponds and other facilities used to treat

or store hazardous industrial -

wastewater to meet Section 3004

standards and to obtain a Section 3005

permit. See 43 FR 58993 and proposed

§§ 250.45-3 and 250.45-4.

The application of Subtitle C

requirements to wastewater treatment

impoundments was one of the most

controversial aspects of EPA's proposed

hazardous waste regulations. Most of

commenters' objections to EPA's

proposal as they pertain to Section 3004

interim status requirements are

discussed in the preamble to the Section

3004 regulations published elsewhere in

today's Federal Register. The only one

addressed here is commenters' argument

that the "industrial discharge" exclusion.

in Section 1004(27) refers to the entire

wastewater stream, not simply the point

source discharge, and that EPA

therefore has no authority under RCRA

to regulate industrial wastewater

holding or treatment facilities.

This contention is not supported by

either the plain language of the statute.

or its legislative history. The obvious

purpose of the industrial point source

discharge exclusion in Section 1004(27)

was to avoid duplicative regulation of.

point source discharges under RCRA.

and the Clean Wat6r Act. Without such

a provision, the discharge of wastewater

into navigable waters would be

"disposal" of solid waste, and

potentially subject to regulation under

both the Clean Water Act and Subtitle

C. These considerations do not apply to

industrial wastewaters prior to

discharge' since most of the

environmental hazards posed by

wastewaters in treatment and holding

facilities-primarily groundwater

contamination-cannot be controlled

under the Clean Water Act or other EPA

statutes.

Had Congress intended tt exempt

industrial wastewaters in storage and

treatment facilities from all RCRA

requirements, it seems unlikely that the

House Report on RCRA would have

cited, as justification for the

development of a national hazardous

waste management program, numerous

damage incidents which appear to have

involved leakage or overflow from

industrial wastewater impoundments,

See, e.g., H.R. Rep. at 21. Nor would

Congress have used the term

"discharge" in Section 1004(27), This is a

term of art under the Clean Water Act

(Section 504(12)) and refers only to the "addition of any pollutant to navigable

waters", not to industrial wastewaters

prior to and during treatment.

Since the comment period closed on

EPA's regulations, both Houses of

Congress have passed amendments to

RCRA which are designed to provide

EPA with more flexibility under Subtitle

C in setting standards for and issuing

permits to existing facilities which treat

or store hazardous wastewater. See

Section 3(a)(2) of H.R. 3994 and Section

7 of S. 1156. See also S. Rep. No. 96-172,

96th Cong., 1st Sess. 3 (1979)1 Cong. Rec,

S6819, June 4,1979 (daily ed.,)- Cong.

Rec. H1094-1096, February 20, 1980

(daily ed.). These proposed amendments

and the accompanying legislative

history should lay to rest any question

of whether Congress intended industrial

wastewatdrs in holding or treatment

facilities to be regulated as "solid

waste" under RCRA.

3. Other Statutory Exclusions. The

definition of "solid waste" in Section

1004(27) excludes two other classes of

wastes. "Solid or didsolved materials in

irrigation return flows" and "source,

special nuclear, or byproduct material

as defined by the Atomic Energy Act of

1954" are not "solid waste" under

RCRA.

In § 250.40(e) of the proposed

regulation these two categories of

wastes were excluded from regulation

under Section 3004. No substantial

comment was received on these.

*exclusions. In these final regulations

under Section 3001,'the Agency has

specifically excluded these materials

from regulation as solid waste in accord

with the statutory definition of "solid

waste."

4. Household Wastes. Under

"§ 250.20(c)(4) of the proposed regulation,

a person or Federal agency who

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generated only household refuse or

household septic tank pumpings was

excluded from regulation as a generator

of hazardous waste. "Household refuse"

was defined as trash or rubbish

ordinarily produced by a family at their

home. This exclusion, which also was

available to apartment houses,

,condominiums and hotels, was based on

the legislative history of RCRA.

The few commenters that addressed

this provision made two general points.

First they said that the "ordinarily

produced" portion of the proposed

"household refuse" definition might not

include certain materials such as

medicinal drugs and ointments,

household cleaning agents and solvents,

waste oils, paints and pesticides that

might be purchased at a grocery, drug or

hardware store. Second, a commenter

pointed out that a Federal agency could

not, by definition, produce household

wastes.

The Agency has retained the general

concept contained in proposed

§ 250.20(c](4) in these regulations. The

provision is stated, however, as an

exclusion of a waste stream-namely

"household wastes"-rather than as an

exclusion of a class of generators. This

change is more in accord with legislative

intent. The exclusion is based on

language in the Senate Report which

states:

(The hazardous waste program) is not to be

used to control the disposal of substances

used in households or to extend control over

general municipal wastes based on the

presence of such substances.

(S. Rep. No. 94-988, 94th Cong., 2nd Sess., at

16.]

This indicates Congressional intent to

exclude waste streams generated by

consumers at the household level. Since

the wastes generated at hotels and

motels are essentially the same as those

generated by consumers in their

households, EPA believes that such

wastes should be within the exclusion.

The Senate language makes it clear

that household waste does not lose the

exclusion simply because it has been

collected. Since household waste is

excluded in all phases of its

management, residues remaining after

treatment (e.g. incineration, thermal

treatment) are not subject to regulation

as hazardous waste. Such wastes,

however, must be transported, stored,

treated and disposed in accord with

applicable State and federal

requirements concerning management of

solid waste (including any requirements

specified in regulations under Subtitle D

of RCRA.)

When household waste is mixed with

other hazardous wastes, however, the

mixture will be deemed hazardous in

accord with § 261.3(a)(2)(ii) of these

regulations except when they are mixed

with hazardous wastes produced by

small quantity generators (see § 261.5).

While household waste may not be

hazardous per se, it is like any other

solid waste. Thus a mixture of

household and hazardous (except those

just noted) wastes is also regulated as a

hazardous waste under these

regulations.

Because of comments on this matter,

the relationship of this exclusion to

refuse-derived fuel (RDF) should also be

explained. RDF is a processed material

(usually shredded) that is produced from

solid waste and used as a fuel. RDF

production usually involves the

extraction of inorganic components from

the waste leaving the combustible

organic component for its fuel value. In

the same sense that residue from the

treatment of household wastes is not

subject to regulation as a hazardous

waste, as discussed above, neither is

RDF subject to such regulation.

Moreover, RDF is not a "solid waste"

under § 261.2 because it is not an "other

discarded material;" it is or is not

intended to be discarded (§ 261.2(b](1)),

it is not a material that has served its

original intended purpose (§ 261.2(b)(2))

and it is not a manufacturing or mining

by-product (§ 261.2(b)(3)).

EPA agrees with those commenters

who suggested that Federal agencies

cannot qualify as households. Therefore

wastes generated by such agencies are

not within the household waste

exclusion. In addition EPA believes that

medicinal drugs and ointments,

household cleaning agents and solvents,

waste oils, paints and pesticides

purchased at grocery, drug or hardware

stores may be disposed of as part of a

consumer's household wastes. If a

household disposes of such wastes, the

wastes may be subject to the household

waste exclusion.

Septic tank pumpings were included

in the exclusion contained in

§ 250.20(c)(4) of the proposed regulation.

After further examination of this

provision, EPA has concluded that such

pumpings should be excluded from

regulation as hazardous wastes to the

extent that they constitute household

waste. Households often use septic

tanks to dispose of a portion of their

wastes. As with all household wastes,

these sanitary wastes in household

septic tanks are excluded from

regulation as a hazardous waste in all

phases of their management. Thus septic

tank pumpings drawn from household

septic tanks are not regulated as

hazardous wastes under these

regulations. Any wastes drawn from

non-household septic tanks are

regulated like any other solid waste

under these regulations.

5. Agricultural Wastes. Under

§ 250.10(d][2)(i) of the proposed

regulation, agricultural wastes

(including manures and crop residues)

which are returned to the soil as

fertilizers or soil conditioners were

excluded from regulation as hazardous

waste. The exclusion was based on the

legislative history of RCRA which

specifically calls for such an exclusion.

See H. Rep. No. 94-1491, 94th Cong. 2nd

Sess. 2 (1976]. Commenters generally

accepted this exclusion, and EPA has

decided to retain it becatise the need for

such an exclusion is so clearly identified

in RCRA's legislative history.

Some commenters asked the Agency,

however, to go beyond the specific

language of the legislative history and

expand the exclusion to include

silvicultural wastes. They argued that

the foliage and branches left in the

forest after trees have been cut are not

hazardous and that such wastes help to

enrich the soil and control erosion. EPA

has decided not to provide a specific

exclusion forsuch wastes because there

is no indication in the legislative history

of RCRA that the Congress meant to

include silvicultural wastes in the

exclusion otherwise applicable to

agricultural wastes. Moreover EPA has

no basis to make a general

determination that all silvicultural

wastes will not pose environmental

problems if mismanaged.

In response to the specific comment

about tree branches, it must be

recognized that the obligation placed on

generators of solid waste is to determine

whether their waste is hazardous. Tree

branches are not listed as hazardous

wastes. Therefore, the only obligation

placed on a timber operation is to

determine whether its wastes exhibit

hazardous characteristics. EPA expects

that. in the casd of tree branches that

are not hazardous, it will be a relatively

easy task for the generator to determine

that his waste is not hazardous.

6. Mining Waste. Section

250.10(d)(2ii) of the proposed

regulation excluded overburden

intended for return to the mine site from

regulation under Subtitle C unless such

overburden had been specifically listed

as a hazardous waste. This exemption

was based on the legislative history of

RCRA.

Generally commenters accepted this

exemption but sought a clearer

specification of what wastes fall within

the exclusion. Thus commenters sought

a definition of both "overburden" and

"mine site." Commenters also sought a

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33100 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980

clearer interpretation of the time within

which the "return to the mine site"

would have to occur. Finally, several

commenters objected to that portion of

the proposed regulation which allowed

EPA to list and regulate specific

overburden materials otherwise covered

by the exclusion. EPA had invoked this

provision when listing uranium mining

overburden and waste rock and

phosphate mining overburden in the

proposed regulation. These same

commenters had also objected to the

proposed listing of such wastes.

After review of the comments and

further analysis, EPA has decided-to

retain an exemption for "mining

overburden returned to the mine site",

defining it as "any material overlying an

economic mineral deposit which is

removed to gain access to that deposit

and is then used for reclamation of a

surface mine."

In enacting RCRA, the Congress

specifically included mining wastes

within the Section 1004(27) definition of "solid waste." Therefore unless the

statute or legislative history clearly

indicate that mining wastes are to be

exempt the presumption is that they are

to be regulated like any other solid or

hazardous waste. Portions of RCRA's

legislative history in both the Senate

and House of Representatives suggest,

however, that certain kinds of mining

overburden are not within the Act's

jurisdiction. In discussing RCRA's scope

the House Report states:

[Olverburden resulting from mining operations and intended for return to the

mine site is not considered to be discarded

material within the meaning of this

legislation. This however does not preclude

any finding by the Administrator that specific mine wastes are hazardous within the scope of this legislation.

In the Senate this issue was discussed

during the floor debate when Senator

Domenici asked about the effect bf

RCRA on mining operations, particularly

strip mining. As part of his response

Senator Randolph stated:

The measure would not affect surface mining activities. Reclamation is not solid waste

dispodal.

Reclamation of surface mines will

commonly involve the return to the mine

site of waste overburden that has been

removed to gain access to the ore

deposit. Since it is assumed that both

the Senate and House had similar

objectives in passing RCRA, the "returned to the mine site" language in

the House Report must be read in light

of the Senate's concern that mining

wastes used to reclaim surface mines

should not be subject to RCRA. EPA

believes, therefore, that the most

reasonable interpretation of-the "return

* to the mine site" phrase is one that

limits the exemption to mining waste

used to reclaim surface mines.

Commenters suggested that EPA

define overburden as any material

removed to gain access to the i "economic mineral" or the, "mineralI

.being mined for use." While both terms

basically convey the same meaning,

EPA has decided to use "economic

mineral" because it may have a clearer

meaning to mining operators. The intent

of the term is to identify the material

that the mining operator is in the

business to extract from the ground.

In keeping with the Congressional -

*intent that this exclusion is designed for

overburden used to reclaim surface

.mines, the definition is limited to

overburden "overlying" a mineral

deposit. The Department of the Interior

makes a similar distinction in the

definition of overburden in its

regulations under the Surface Mining

Control Act. EPA does not intend this

definition of overburden to be limited

exclusively to the material located

directly above a mineral deposit. Some

material is removed from the sides of a

mining pit to permit safe access to the

economic mineral, and such material

should be treated as overburden. EPA

urges the public to provide suggestions

about how the definition may be refined

if there appears to be any confusion

about the neaining of "overlying" in this

context.

Overburden material must be "returned to the mine site" before it is

excluded from regulation under RCRA.

As indicated earlier, the purpose of the

exemption is to assure that mining

wastes used to reclaim surface mines

are not subject to regulation as solid or

hazardous waste. EPA recognizes that

reclamation does not necessarily

involve replacement of overburden into

the portion of the ground from which it

was taken. EPA also recognizes that

surface mining reclamation may be

subject to State or Federal regulation, making it difficulut-to provide a national

definition of what constitutes

reclamation. In particular it is difficult to

provide a general definition of "mine

site" that will fit with the various State

and federal requirements for

reclamation.

EPA has decided, therefore, not to

define what is meant by reclamation of

a surface mine. Several commenters

indicated that most reclamation

activities are subject to State or Federal

regulation. EPA expects that any permits

or reclamation plans developed to

satisfy such regulatory agencies will

specify the reclaimed area, and these

actions should provide an acceptable

and understandable specification of the "mine site" as that term is used in this

definition. EPA contemplated limiting

the exemption to reclamation that was

approved by State or Federal agencies.

While such a requirement is not part of

this regulation, EPA is consideing

whether such a requirement should be

part of the final definition. EPA seeks

public comment on such a modification

and is particularly interested to discover

the extent to which environmentally

sound reclamation activity occurs In the

absence of Federal and State regulation,

This approach addresses two specific

suggestions made in comments, First It

clarifies the time component of the "returned to the mine site" concept

because it ties the exemption to

reclamation activity, Particularly where

the mining operation is subject to State

or Federal regulation, it should be

reasonably clear what portion of the

mine's overburden will be used over

what period of time to implement a

reclamation plan. Second, as indicated

above, it eliminates the need for a

specific definition of mine site. In any

case, EPA does not believe, as one

commenter suggested, that the definition

of "mine" used in the Agency's Effluent

Limitations Guidelines for the Ore

Mining and Dressing Point Source

Category (under the Clean Water Act) is

appropriate for this ddfinition, The OWA

definition is designed to identify a full

range of mining and associated

activities that should be regulated

because they generate pollutants which

may potehtially discharge into navigable

waters. The RCRA definition of "mine

site" is to identify a reclaimed area that

may receive a waste material which will

thereby be excluded from environmental

regulation under RCRA.

Finally the Agency has eliminated ihe

part of the proposed exemption that

would allow exempted overburden to be

brought within RCRA jurisdiction

through specific listing as a hazardous

waste. (EPA believes, however, that

uranium mining overburden and

phosphate mining overburden will be

brought back under Subtitle C

jurisdiction-, as discussed below.) The

only overburden exempted is that which

is used for reclamation purposes. EPA

expects that the State and Federal

agencies that regulate such reclamation

will consider the overburden's potential

to adversely affect public health and the

environment.

EPA believes strongly that portions of

the overburden from uranium and

phospate mining should be regulated

under Subtitle C with respect to their

potential emissions of radon gas and

gamma radiation. The Agency

/ Rules and Regulations
Federal Register / Vol. 45, No. 98 / Monday, May 19. 1980 / Rules and Regulations 3

recognizes that this is an issue currently

before the Congress in amendments to

RCRA. One such amendment would

provide specific authority for EPA to

regulate these overburdens. If this

amendment is enacted, the "overburden

returned to the mine site" exclusion will

be modified accordingly.

Commenters also questioned the

application of the Subtitle C system to

in-situ mining wastes. In-situ mining of

oil shale, uranium and other minerals

may involve the placement of certain

solvent solutions directly to a mineral

deposit in the ground. This solvent

passes through the earth, solubilizing the

economic mineral as it goes. The

mineral and solvent mixture leaches

down to underground extraction wells

which remove the solution.

EPA does not believe that the soil

through which these solvent solutions

pass is a waste to be regulated under

RCRA for two reasons. First the removal

of materials from their natural state

does not transform all remaining

elements of that environment into a

waste material. For example, picking an

apple from a tree does not transform the

tree into a solid waste. Likewise the

removal of minerals from the land d6es

not make the earth a solid waste.

Second, the soil from which minerals

are extracted by in-situ mining does not

need to be managed as solid wastes. As

indicated in United States Brewers'

Association, Inc. v. EPA, supra., the

definition of "solid waste" under RCRA

must be read in conjunction with

Section 1004(28), the definition of "solid

waste management," which sets forth

the broad set of activities that RCRA is

to regulate. None of the management

activities identified in Section 1004(28),

including "disposal," are relevant to inplace materials located hundreds, even

thousands of feet.below the ground.

Only when these materials are actually

removed from the ground can it be

reasonable to establish regulations

governing the management of those

materials. Accordingly in-situ mining

wastes, not removed from the ground,

are not regulated as solid wastes under

these regulations.

A final issue raised in the public

comments concerns the relationship

between these regulations and the study

of mining wastes required under Section

8002(f) of RCRA. Commenters argued

that all mining wastes should be

excluded from coverage under RCRA

regulatory programs (including Subtitle

C) pending the outcome of that study.

While the study will certainly assist

the Agency in refining these regulations

to address the particular environmental

problems presented by mining wastes,

the Agency does not believe that mining

wastes should be excluded from

regulation, any more than any other

solid or hazardous waste, until the study

is completed. RCRA certainly does not

require such a deferral. The fact that the

Congress may have perceived a need for

further information about mining wastes

does not raise the implication that

RCRA's regulatory programs should not

address the environmental problems

presented by such wastes. The

definition of "solid waste" in Section

1004(27) specifically includes wastes

from mining operations and no other

statutory provision otherwise links

EPA's jurisdiction over such wastes to

completion of the study under Section

8o02(f).

It is important to note that pending

amendments to RCRA may provide for

deferral of regulation of certain mining

wastes until completion of the mining

waste study. Clearly that indicates a

Congressional belief that any deferral of

regulation pending the outcome of the

study was not contained in RCRA as

originally enacted. Certainly if the

legislative amendment is passed EPA

will modify these regulations

accordingly. The Agency has not,

however, created such a deferral in

anticipation of such an amendment

because the amendment is contained in

the bill of only one house. Thus the

Agency cannot be certain that such an

amendment will be part of the final

legislation.

7. Sewage Sludge. Unlike the proposed

regulation this regulation does not

exclude fiom regulation under Subtitle C

sewage sludge from publicly-owned

treatment works (POTW's). Several

commenters objected to the exclusion

contained in the proposed regulation,

arguing that it was inconsistent to

exclude sewage sludge from POTW's

and not exclude sewage sludge from

privately-owned systems. They urged

EPA to exclude sewage sludge from

such private systems. Other commenters

urged EPA to exclude wastewater

treatment sludges from certain

industries such as the meat packing and

food processing industries because these

sludges are very similar to domestic

sewage sludge.

Finally, other commenters objected to

the proposed exclusion of sewage sludge

from POTW's and urged that this

exclusion be dropped. They claimed that

POTW sludge often is very

contaminated and thereby can be a

hazardous waste. They urged that it not

enjoy an arbitrary exclusion. EPA has

thoroughly re-examined this issue in

light of the comments and has decided

not to exclude POTW sludge and not to

add exclusions for any other types of

sludge.

The regulation of sewage sludge is

necessarily a complex matter because

such sludges fall within thp jurisdiction

of several Federal environmental

programs. Under Section 1004[27) of

RCRA. the definition of "solid waste"

specifically includes "sludge from a

waste treatment plant." In defining "sludge," Section 1004(26A) includes

wastes from a "municipal wastewater

treatment plant."

Because of these very clear statutory

expressions, EPA must regulate sewage

sludge under RCRA-either under

Subtitle D, where it has already

promulgated regulations covering

sewage sludge (see 44 FR 53438 et. seq.),

or under Subtitle C where these sludges

that are deemed by EPA to be

hazardous wastes should be regulated.

Under Section 102 of the Marine

Protection, Research and Sanctuaries

Act, EPA regulates the ocean dumping

of sludge, including sewage sludge. In

addition EPA establishes, under Section

405 of the Clean Water Act (CWA),

guidelines for the disposal and

utilization of sewage sludge. Under

Section 405(e), owners and operators of

publicly owned treatment works

(POTW's) must comply with these

guidelines. Sewage sludge often

contains valuable organic matter and

plant nutrients, and it may be

distributed to the public as a soil

conditioner or fertilizer. Such

distribution of sewage sludge may be

regulated under the Consumer Product

Safety Act (CPSA] or the Toxic

Substances Control Act (TSCA), in

addition to Section 405 of the CWA.

Whdre such overlapping jurisdiction

exists. EPA seeks to integrate and

coordinate its regulatory actions to the

extent feasible. Such efforts give the

regulated community a clear picture of

its obligations and improve the

administrative efficiency of the Agency,

both of which advance the

environmental objectives contained in

EPA's various statutory authorities.

Section 1006 of RCRA specifically

recognizes the need to integrate the

solid and hazardous waste programs

with other EPA regulatory programs.

To that end EPA has decided to

develop a comprehensive set of

regulations to deal with sewage sludge

management. Such regulations would be

co-promulgated under RCRA (Subtitles

C and D). the Clean Water Act, the

Marine Protection, Research and

Sanctuaries Act and possibly the Toxic

Substances Control Act andlor the

Consumer Product Safety Act. These

regulations will address sewage sludge

33101
Federal Register / Vol. 45, No. 98 / Monday, May 19; 1980 / Rules and Regilations

from both private and public sources,

including septic tank pumpings.

In devising such regulations the

Agency will, of course, make the

distinctions and classifications -

necessary to make the regulation

comport with the goals and

requirements of each statute. Under

such a comprehensive regulation,

sewage sludge that would otherwise

meet the test for being hazardous under

Subtitle C will be subject to

requirements providing a level of

protection to human health and the

environment equivalent to that found in

the Subtitle C regulations.

The Agency has issued and is

developing regulations which will

eventually be part of the comprehensive

sewage sludge regulation. For example

the Agency promulgated Criteria for the

Classification of Solid Waste Disposal

Facilities and Practices (44 FR 53438) on

September 13, 1979. These regulations,

which apply to sewage sludge, include

special provisions for the land

application of solid waste to food chain

crops and for the prevention of disease

from pathogens contained in sewage

sludge and septic tank pumpings. EPA

issued the Criteria. under the authority of

Sections 1008(a)(3) and 4004(a) of RCRA

as well as Section 405(d) of the CWA.

EPA has also published two technical

bulletins that provide guidance on

sludge management: "Municipal Sludge

Management: Environmental Factors"

(42 FR 57420) and "Application of

Sludges and Wastewater to Agricultural

Land; A Planning and Education Guide."

In addition the Agency is in the

process of developing regulations on the

distribution and marketing of sewage

sludge which will focus on the use of

such material as a soil conditioner'or

fertilizer. These regulations will, at a

minimum, be promulgated under Section

405(d) of the CWA. The Agency is also

examining whether TSCA or CPSA

authorities may be used in developing

these regulations.

The Agency's strategy for the

development of a comprehensive

sewage sludge management regulation

will eventually result in the

establishment of a separate regulation.

Once such a regulation is in place,

sewage sludge will be exempted from

coverage under other sets of regulations.

In particular sewage sludge that

qualifies as a hazardous waste will be

exempted from this Part-and Parts 262

through 265 once this separate sewage

sludge regulation, which will provide an

equivalent level of protection, is issued:

in final form.

Pending promulgation of this

comprehensive sewage sludge

regulation, sewage sludge-will not be

specifically excluded from Subtitle C.

Like-any other solid waste, sewage

sludge that exhibits any of the

characteristics of hazardous waste

established in this regulation-must be

managed as a hazardous waste.

Some commenters urged EPA to list

sewage sludge as a hazardous waste,

contending that it was particularly

hazardous when used-in the growing of

food chain crops because of the

potential plant uptake of cadmium,

PCB's and other contaminants. The

Agency has decided not to specifically

list sewage sludge as a hazardous waste

at this time.

It is difficult to make general

determinations about the hazardousness

df sewage sludge, particularly those

produced by POTW's, because of the

wide variations in sludge quality. The

makeup of a given community's sewage

sludge, for example; reflects the range of

contaminants generated by the

industrial and commercial activities in

the area. The sludges of two POTW's

will differ as much as the communities

themselves.

Determinations about the

hazardousness of sewage sludge must,

therefore, involve the making of some

distinctions between types of sludge.

EPA anticipates that it may make such

distinctions as part of its comprehensive

sewage sludge management regulations.

Thus, it is reasonable for EPA to

determine whether categorical

classifications of sewage sludges are

appropriate as part of the Agency's

effort to develop such a regulation.

In addition it should be recognized

that-the particular hazard identified by

the commenters, namely uptake of

contaminants in food-chain crops, is

being addressed by existing regulations.

As mentioned above, EPA has issued

the Criteria for the Classification of

Solid Waste Disposal Facilities and

Practices under Subtitle D of RCRA,

which place limits on the applicatioii of

solid waste (including sewage sludge) to

food-chain crops. In addition, it is

developing regulations covering the

distribution and marketing of sewage

sludge, which often is used by

consumers in gardens for growing food

crops. EPA believes that these

regulations address the commenter's

particular concern about cadmium and

PCB contamination in sludge.

E. Section 261.5 (Special Requirements

for Hazardous Waste Produced by

Small Quantity Generators)

1. Introduction. In enacting RCRA,

Congress was responding to a problem

of unknown magnitude and dimension.

With specific reference to the generation

of hazardous waste, the House

Committee stated:

Oine of the major problems to be addressed

in the hazardous waste area is the lack of

information concernifg the components, volumes and sources of hazardous waste. To

date there has been no survey or other wide

ranging investigation of the sources of

hazardous or potentially hazardous waste

generation or disposal. As a result, little Is

known about the actual volume of hazardous

waste being generated, the geographical

distribution of the generators or the extent to

which hazardous wastes are transported

[H.R. Rep. at 26].

In the proposed regulation, EPA

recognized that the principal focus of the

regulatory program should be directed

towards effectively controlling the

hazardous waste generated by the larger

sources of hazardous waste. The

Agency was uncertain, however, about

the most appropriate manner of

regulating generators of small quantities

of hazardous waste, The proposed

regulations exempted from regulation

retailers and any person who generated

and disposed of hazardous waste in

quantities of less than 100 kilograms in

any one month period, provided that

these generators disposed of their waste

in a waste disposal facility meeting the

RCRA Section 4004 criteria or in a

facility permitted to manage hazardous

waste. In the preamble to the proposal,

EPA explained the rationale for this

exemption as follows:

The principal element of this issue is how

to balance the need to protect human health

and the environment from the adverse Impact of potential mismanagement of small

quantities of hazardous waste with the need

to hold the administrative and economic

burden of management of these wastes under

RCRA within reasonable and practical limitg

(43 FR 58970).

Since the time of proposal, the Agency

has received and developed

considerable information on the issue of

the appropriate degree and manner of

regulating small quantities of hazardous

waste. The information obtained in this

process indicates that the number of

persons generating hazardous wastes is

staggering. There are an estimated

760,000 large and small generators of

hazardous wastes producing over 60

million tons of hazardous waste a year.

The greatest amount of these wastes

comes from very large generators,

typically large, manufacturing facilities,

Just over 5 percent, or 40,000, of the total

number of generators produce more than

5000 kg/mo of hazardous wastes; yet,

these lhrge generators produce 97.7

percent of the total quantity of

hazardous waste. Roughly 91 percent, or

695,000 of the generators, produce less

than 1000 kg/mo, yet contribute only one

33102
Federal Register I Vol. 45, No. 98 I Monday, May 19, 1980 I Rules and Regulations 33193

percent, or 600,000 tons per year, of the

total hazardous waste generated. At

levels of generation below 100 kg/mo, 74

percent, or 563,000, of the generators

produce only 0.23 percent, or 138,000

tons per year of hazardous waste.

The types of business activity

generating small quantities of hazardous

waste differ markedly from those

generating large quantities of hazardous

waste. In contrast to large quantity

generators, which are almost entirely

from the manufacturing sector, over 89

percent of the small generators-those

producing hazardous waste at rates of

less than 1000 kg/mo-are from the nonmanufacturing sector. These generators

are scattered among such diverse

sectors as construction, special trade

contractors (e.g. plumbers, electricians),

secondary schools, and local

transportation systems. Gasoline service

stations and automobile repair garages

(for wastes other than waste lubricating

oil) comprise nearly 30 percent of these

non-manufacturing small generators of

hazardous waste.

The Agency has determined that the

enormous number of small generators, if

brought entirely within the Subtitle C

regulatory system, would far outstrip the

limited Agency resources necessary to

achieve effective implementation.

The information developed in the

rulemaking process has led EPA to

adopt, in the final regulations, a system

which incorporates various aspects of

the different approaches suggested in

the preamble to the proposed rule. The

final regulation sets low (1 to 100 kg/mo)

quantity exclusion limits for certain

extremely hazardous wastes; sets an

initial general exclusion limit for

generators of less than 1000 kg/mo of all

other hazardous wastes; and conditions

this general exclusion to assure that

excluded wastes are disposed of in

either authorized hazardous waste

management facilities or facilities

approved by.a State for municipal or

industrial wastes. EPA believes the

approach adopted will allow EPA and

the States to initially focus

implementation and enforcement of the

Subtitle C regulatory program on those

generators of hazardous waste who are

presently producing 99 peicent of all

hazardous waste. In addition, the

Agency will initiate rulemaking within 2

to 5 years to phase-in expanded Subtitle'

C coverage of small generators down to

those generating more than 100 kg/mo

quantities.

The final rule does not exempt

retailers from coverage as did the

proposed regulations. In the preamble to

the proposed rule the Agency stated its

belief that retailers rarely generate more

than 100 kg/mo. However, commenters

argued, and the Agency agrees, that

some retailers may generate extremely

hazardous wastes. Furthermore, some

generators, such as large hardware or

garden stores may generate substantial

quantities of hazardous waste. To the

extent that retailers do generate only

very small quantities, they will be

exempted by the exclusion level

provided in the regulations. Thus, in the

final regulation, retailers who generate

hazardous waste are subject to the same

requirements as any other generator.

The background document responds

fully to the diverse and numerous

comments received on the proposed

exemption of generators of small

quantities of hazardous waste. This

preamble will discuss the issue raised

most frequently during the comment

period-the consideration of hazard in

establishing quantity limitations for

hazardous wastes-and the rationale for

setting an initial quantity dxclusion of

1000 kg/mo and for phasing down the

exclusion to 100 kg/mo.

2. Consideration of Hazard in

Establishing Quantity Limitations. A

number of commenters stated that EPA

should use consideration of hazard in

determining the scope of regulatory

coverage. Two methods were suggested.

(1) Using quantity to define hazardous

waste pursuant to Section 1005(5) of

RCRA, i.e., determining the level for

each waste below which it does not

pose a substantial hazard to human

health and the environment when

improperly managed; or, (2) considering

the degree of hazard presented by a

particular waste to establish different

levels or types of controls. Although

both approaches are attractive, the

Agency lacks at present the ability to

use either approach in any extensive

fashion, and therefore has had to adopt

a general exclusion level.

3. Using Quantity to Determine That q

Waste is Hazardous. The Agency

considered whether the small quantity

issue could be addressed through

consideration of quantity in the

definition of hazardous waste.

Specifically, the Agency considered

whether small quantity exclusion limits

could be established by defining de

minimis quantities below which a waste

would not be hazardous under the

statutory definition in Section 1005(5) of

RCRA, Le., below which no substantial

hazard to human health and the

environment exists under conditions of

improper management. However, the

Agency has not been able to find a way

of determining de minimis quantities.

To do so would require knowledge not

only about the intrinsic properties of a

waste but also about the possible

exposures that attend various small

quantities of waste under various

plausible scenarios of waste

mismanagement. Such exposure

assessments require consideration of

waste properties, numerous site-specific

conditions, and alternative management

scenarios. For example, the levels of

exposure and hazard which could result

from leaching of toxic constituents from

a particular hazardous sludge in a

landfill would depend on factors such as

the persistence of the waste, site

hydrogeology. depth to the groundwater,

the attenuation of the constituent in the

underground environment (including

degradation of the constituent and its

dilution in the groundwater], and the

location of persons using the

groundwater. The problem is made more complex by the fact that many wastes

may be managed in several alternative

ways, such as land disposal, treatment,

or incineration, and each of these types

of management exhibits different

exposure and risk patterns.

Given current knowledge and

information, these assessments cannot

be made for most wastes with sufficient

precision to determine the specific

quantities which represent a threshold

for finding a waste hazardous.

Therefore, the Agency has not been able

to establish de minimis quantities for

defining hazardous wastes. The Agency

must therefore consider all quantities of

any waste listed or identified in Part 261

to be hazardous.

4. Inability of the Agency to Use

Degree of Hazard. Because the Agency

was unable to use quantity in

determining whether a waste is

hazardous, it considered using degree of

hazard in determining the appropriate

quantity exclusion level. Commenters

heavily supported establishing exclusion

limits based on degree of hazard of

various wastes. These suggestions were

part of a broader set of comments which

recommended that the Agency establish

a degree of hazard system that placed

wastes into two or more levels of hazard

depending on the risk that those wastes

present to public health and the

environment. Commenters argued that

such a system could be used as a basis

for phasing regulatory coverage,

tailoring waste management standards,

and establishing small quantity

exclusion levels.

The Agency's response to the full

scope of the degree of hazard proposals

is included in the preamble to the Part

264 and 265 regulations being

promulgated today. As explained there,

the Agency has not adopted a degree of

hazard system in the final regulations.

Among other reasons, the Agency

45, No. 98 / Monday, May 19, 1980 Federal Register / Vol. / Rules and Regulations 33103
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

concluded that none of the degree of regulated, workload requirements would

hazard systems suggested by exceed resources available by 1100 to

commenters, nor any it could itself 1200 workyears. If generators of less

conceive', is capable of comprehensively than 100 kg/mo quantities were ' distinguishing different degrees of exempted from full regulation, the

hazard among the myriad of hazardous shortfall would be much less, but still a

wastes without application of very substantial 200 to 300 workyears.

subjective judgment. This precluded However, if generators of less than 1000

establishing small quantity exemptions kg/mo quantities are exempted, the

based on a hierarchy of hazard levels, shortfall is projected to be. less than 100

While the Agency has not found it workyears, about 5 percent of the total

possible to establish a comprehensive workload requirenents.

hazard ranking system, the Agency has The resource constraints and

•attempted on a limited basis to make shortfalls have direct significance for

hazatd distinctions in establishing small the operation of the entire regulatory

quantity cutoffs. The Agency has program. To expand the coverage to

established very low exclusion limits for smaller generators would require direct

certain very acutely toxic or otherwise sacrifices from other elements of the

hazardous chemical products (if program, most notably regulation and

discarded), off-specification derivatives enforcement of large generators,

of those products, and the.product permitting of treatment, storage and

containers and spill residues: The disposal facilities, and enforcement and

Agency may in the future establish inspection of these facilities.

specific (low)- exclusion limits for other Furthermore, with greater resource

highly hazardous wastes on a case-by-- demands and projected shortfalls,

case basis. greater difficulties are likely in the

5. Limited Administrative Resources ability of States to obtain authorization

Require Setting the Initial Exclusion to administer the program in li~u of the

Level at 1000 kg/mo. EPA has decided to Federal government.

adopt for the present time, a general- Given the enormity of the

exclusion level of 1000 kg/mo. The implementation task and the limited

Agency's basis for this decision is the administrative resources, EPA has been

current lack of sufficient administrative forced to make difficult allocation

resources to allow the Agency and the decisions. Expanding the coverage of

States to effectively regulate all generators would entail direct sacrifices

hazardous waste. Given that resource from other essential program

constraint, the Agency belieVes that the components. The-determination of the

overall level of environmental proper exclusion level in the final,

protection which can be provided will regulation represents a complicated

be greater if the Agency focuses balancing of a variety of factors. The

available resourceg on fully regulating decision reflects a judgment by the

wastes from large generators during the Agency that the overall environmental

early years of regulation implementation objectives will be best served by

rather than expanding the scope of selecting-a level which promises full and

regulatory coverage and achieving effective implementation of all elements

ineffectual implementation of a more of the program rather than one that

ambitious program. promises ineffective implementation of a

The primary reason for selecting 1000 more ambitious program.

kg/mo, i.e., the administrative Accordingly, EPA has decided to

impossibility of implementing at lower establish for the present time a

levels, deserves some elaboration. As conditioned exclusion of hazardous

noted earlier, regulation of all wastes from generators who produce

generafors of hazardous waste would - less than 1000 kilograms a month.-This

bring 760,000 persons into the regulatory level will enable EPA to direct its

system. Regulating only those persons attention to the effective regulation bf 99

who generate more than 100 kg/mo percent of the total wastes generated,

would exclude from the program 560,000 and will entail only insignificant, if any,

generators, 73.9 percent of the total. If- sacrifices in the task of issuing'permits

the exclusion level were set at'1000 kg/ - to hazardous waste management

mo, 695,000 generators or 91.2 perfent facilities.

would be excluded from regulation. At a In addition, the exclusion is not

5000 kg/mo level,-722,000 generators or unqualified; generators of small

94.7 percent would be excluded. quantities of hazardous waste mustIn 1981, the first full year of ensure that their wastes go to facilities

implementing the Subtitle C controls, that are approved by the State to handle

analyses of Agency and State workload municipal or industrial wastes. For most

requirements and available resources to of these facilities the commingling of

implement the Subtitle C controls small quantities of hazardous' waste

indicate that, if all generators were fully with large quantities of non-hazardous

waste is likely to minimize

environmental problems attributable to

the hazardous waste, particularly since

dilution levels at a 1000 kg exclusion are

generally at least 100 to 1. Importantly,

this approach will give State agencies

more flexibility in dealing with small

quantity generators. If a State

determines that certain types of

exempted hazardous waste should not

be managed in a particular non- • hazardous facility, it can deal with that

situation directly.

The Agency considered other types of

reduced administrative or technical

requirements for exempted generators,

including various subsets of the full

Subtitle C requirements, A limited

number of commenters suggested

particular reduced requirements which

they felt would provide limited but

necessary controls. The Agency's

analysis of various reduced Subtitle C

requirements indicated that they would

either provide an insignificant level of

additional control, or that they would

not substantially reduce the

administrative burden of the full Subtitle

C requirements. Thus, the Agency

decided to impose only the condition

stated above.

6. Phasing Down the Coverage of

Small Quantity Generators. On the

basis of information presently available - to the Agency, it appears that a general

exclusion level of 100 kg/mo wotild

betier achieve the environmental

protection objectives of Subtitle C.

Therefore, EPA intends to initiate

rulemaking within 2 to 5 years to expand

Subtitle C coverage down to generators

of 100 kg/mo. During this process, the

Agency will consider the need for any

special regulatory requirements to deal

with any unique problems associated

with these wastes.

A number of commenters argued that

phasing regulatory coverage of small

generators would significantly benefit

the administration of the hazardous

waste management program. The

Agency believes that because of limited

resources, the Agency must phase its

regulation of small generators to be able

to fully implement the Subtitle C

controls on large generators,

transporters, and waste management

facilities.

7. Environmental Considerations. The

information that the Agency was able to

develop on the environmental impacts of

different quantity cutoff levels was not

fully conclusive. However, the data

indicate that an exclusion level of 100

kg/mo, coupled with lower exclusions

for certain highly hazardous wastes, and

disposal of excluded waste in Subtitle C

or State approved facilities will, in most

33104
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

cases, minimize adverse impacts on

human health and the environment.

The review of damage cases tends to

support a 100 kg/mo exclusion level.

First, there were very few damage cases

involving quantities below that level.

Second, thos- few cases involved

indiscriminate dumping rather than

disposal in managed facilities. This

suggested that disposal of quantities less

than 100 kilograms in a managed facility

might provide sufficient environmental

protection, even if the managed facility

was not authorized to handle hazardous

waste. Of the 11 damage incidents

involving the disposal of less than 1000

kg quantities of hazardous waste in

managed facilities the environmental

damage or personal injury occurred in

nine of the incidents because of

mismanagement of single containers,

i.e., 55 gallon drums of ignitable,

corrosive or reactive materials. Setting

the exclusion level at 100 kg/mo would

in most cases ensure that single, full

drums would be properly packaged and

labeled, manifested and sent to Subtitle

C facilities. A higher exclusion level

would not provide this assurance.

Wastes generated by small quantity

generators at the 100 kg/mo exclusion

level comprise only 0.23 percent of all

hazardous waste. The environmental

analysis showed that these small

generator hazardous wastes are

typically mixed by the generator with

non-hazardous wastes and subsequently

disposed of in waste management

facilities for municipal waste. If these

mixed wastes were evenly distributed to

such facilities, the dilution ratio of nonhazardous to hazardous waste would be

roughly 900 to 1 at a 100 kg/mo

exclusion limit.

Although even distribution will not

occur, EPA believes that very large

dilution ratios will result in most

situations with a 100 kg/mo exclusion

level. This is because 92 percent of the

small generators (producing less than

100 kglmo) are in the non-manufacturing

sector and are distributed in reasonable

proportion to population and, therefore,

in reasonable proportion to quantities of

diluting non-hazardous municipal

wastes. The effect of even distribution

and high dilution is to spread and,

thereby, minimize exposure and risk.

Although this effect cannot be assessed

with great precision, it is not

unreasonable to assume that human

health exposure and risk is significantly

reduced at dilution ratios of several

hundred to 1.

8. Resource Considerations. Projecting

administrative resources into the future

is inherently speculative, requiring

various assumptions and estimates of

State and Agency budgets, and

implemeptation workloads. The Agency

studies assumed constant budgets, and

predicted the administrative shortfall to

become exacerbated, rather than

reduced over time. Other projections,

presented in the background document

for small generators, also suggest some

resource difficulties in phasing-in the

coverage of small generators, but these

projections show that the resource

picture may improve over time. The

Agency, however, believes it is

appropriate to expand its regulatory

coverage of small quantity generators,

and will be seeking the budgetary

increases necessary to accomplish that

phasing. Additionally, once the

regulatory apparatus is in place and

operating, the Agency will be able to

reassess the ability to achieve more

comprehensive coverage by means of

allocating its resources differently than

presently projected. -

F. Section 261.6 (Special Requirements

for Hazardous Waste Which Is Used,

Re-used, Recycled or Reclaimed)

This section sets forth the

applicability of the Subtitle C

regulations to the storage and

transportation of hazardous waste

sludges and hazardous wastes listed in

Subpart D that are used, re-used.

recycled or reclaimed. It also provides

for the exclusion from regulation of all

other aspects of the use, re-use,

recycling or reclamation of hazardous

waste until EPA promulgates regulations

to the contrary. The content of and

rulemaking considerations that went

into this section are fully discussed in

Section IV. B. of this preamble.

V. Subpart B-Criteria for Identifying

Characteristics of Hazardous Waste and

fot Listing Hazardous Waste

A. Section 261.10 (Criteria for

ldentifying the Characteristics of

Hazardous Wastes)

Section 3001 of the Act requires EPA

to develop and promulgate criteria for

identifying the characteristics of

hazardous waste. The proposed

regulations identified two such criteria.

The first criterion was that the

characteristic be capable of being

defined in terms of physical, chemical or'

other properties which cause the waste

to meet the definition of hazardous

waste in the AcL This criterion

embodied the simple but fundamental

notion that a characteristic of hazardous

waste must be one which causes the

waste to be a hazardous waste within

the meaining of the statutory definition.

The second criterion was that the

properties defining the characteristic be

measurable by standardized and

available testing protocols. EPA adopted

this second criterion in recognition that

the primary responsibility for

determining whether wastes exhibit the

characteristics rests with generators. It

believed that unless generators were

provided with widely available and

uncomplicated test methods for

determining whether their wastes

exhibited the characteristics, the system

would prove unworkable. Largely in

reliance on this second criterion, EPA

refrained from adding organic toxicity,

carcinogenicity, mutagenicity,

teratogenicity, bioaccumulation

potential and phytotoxicity to the set of

proposed characteristics and instead left

it to listing mechanism to capture

wastes exhibiting these properties. EPA

considered the available test protocols*

for measuring these characteristics to be

either insufficiently developed or too

complex and too highly dependent on

the use of skilled personnel and special

equipment. Additionally, given the

current state of the knowledge

concerning such properties, EPA did not

feel that it could define with any

confidence the numerical threshold level

at which wastes exhibiting these

characteristics would present a

substantial hazard. Furthermore, it

questioned whether these tests

sufficiently took into account the

multiple factors which bore on the

question of the hazardousness of such

wastes.

EPA received a few comments on its

proposed criteria for identifying

characteristics, the most significant of

which addressed the appropriate use of

the identified characteristics. A number

of commenters contended that EPA did

not have authority to require generators

to assess their wastes in accordance

with the characteristics. These

commenters were generally concerned

about the burden placed on generators

by such a requirement and argued that

the characteristrics should only be used

by the Agency in listing hazardous

wastes. Other commenters believed that

EPA was fully justified in requiring

generators to assess their wastes in

accordance with the identified

characteristics and felt that this would

assure the broadest possible coverage

for hazardous wastes.

EPA disagrees with those commenters

who argue that EPA has no authority to

require generators to determine if their

wastes exhibit any of the

characteristics. Throughout the statute,

Congress made reference to two

alternative mechanisms for bringing a

waste into the hazardous waste

system-identification through

characteristics, and listing. If Congress

33105
33106 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 7 Rules and Regulations

had intended the identified

characteristics to be used solely by EPA

in listing wastes, then there would have

been no point in making a distinction

between these two mechanisms.

Consequently, since the determination

of whether a waste exhibits the

characteristics appears to require some

action by someone other than EPA, the

most reasonable interpretation of the

statutory languageis that it requires

generators to assess their wastes in

accordance with the EPA-identified

characteristics. This interpretation of

the statutory language is substantially

reinforced by the provision in Section

3002(4) that gerierators'mry be required

to furnish information on the general

chemical composition of their Waste-a

requirement which 'presumes testing.

The final regulation makes a few

slight changes in the language of the

criteria for identifying characteristics in

an attempt to clarify the meaning of the

regulation and better reflect EPA's

regulatory intent. First, EPA has omitted

reference to damage incidents and

scientific and technical information as

bases for identifying characteristics, out

of a conviction that this reference is

unnecessary and in partial agreement

with those who argued that damage

incidents should not be heavily relied on

in identifying characteristics.,Second,

EPA has omitted the redundant phrase "can be defined in terms of specific,

physical, chemical, toxic, infectious, or

other properties of a solid waste." Third,

EPA has expanded the criterion of "measurability" to make clear that any

test for measuring characteristics must

be within the capability of the generator

community and to provide that

characteristics such as reactivity need

not be accompanied by a testing , protocol if the characteristic can be "reasonably detected by generators...

through their knowledge of the waste."

B. Section 261.11 (Criteria for Listing

Hazardous Waste)

In the proposed regulation, EPA

specified two criteria for listing

hazardous waste, The first criterion was

'that the waste possess one or more of

the identified characteristics. The

second criterion was that the waste

meet the definition of hazardous waste

found in Section 1004(5) of the Act.

The first criterion to a large extent

reflepted EPA's regulatory strategy at

the time of the proposal. Under that

strategy, EPA planned to identify and

quantitatively define all of the

characteristics of hazardous waste,

including organic toxicity,

carcinogenicity, mutagenicity,

teratogenicity, bioaccumulation

potential and phytotoxicity. Generators

would be'required to assesi their wastes

in accordance with these charadteristics

and EPA would list hazardous wastes

where it had data indicating the wastes

exhibited one of the identified

characteristics. Listing would thus play

a largely supplementary function and,

would serve as a device for injecting

certainty into the pr6cess of hazardous

waste determination. As noted above,

however, EPA has found it impossible to

fully effectuate this strategy because of

the lack of suitably uncomplicated test'

protocols, the difficulty of establishing

*numerical hazardous threshold levels for

these additional characteristics, and the

failure of the available test protocols to

fully indorporate all of the multiple

factors bearing on the hazards presented

by such characteristics.'

The second criterion was adopted

against the backdrop of this inability to

capture all hazardous vastes through

identified characteristics, and was

intended to give the Agency an

independent basis for capturing such

wastes. Although this proposed criterion

was admittedly somewhat general in'

nature, it implicitly incorporated the

more.specific criteria embodied in the

delisting requirements and the waste

codes which accompanied each listingprovisions which made it clear that EPA

was specifically concerned with

radioactive, mutagenic,"

bioaccumulative, toxic organic and

infectious wastes. Thus, although EPA

appeared to have prescribed for itself a

very broad and inexact listing standard

in the -proposed regulation, in actuality

-the Agency followed a fairly

particularized set of criteria in listing

wastes.

EPA received a large number of

comments in response to its proposed

criteria for listing. None of these

commenters objected to EPA's first

criterion for listing wastes that exhibit

one of the characteristics. A large

number of commenters, however,

objected to the second criterion. Many

of these commenters felt that the mere

articulation of the statutory definition as

the basis for listing was circular and

constituted an abrogation of EPA's

statutory duty to establish criteria for

listing which expand upon the statutory

definition. Others argued that the

second criterion was inappropriate

because it failed to take into

consideration such things as

concentration, degradation potential

and bioaccumulation potential-factors

which are specifically mentioned by the

Act. -

EPA agrees that the proposed

criterion for listing wastes which do not

exhibit any of the characteristics was as N

a general matter, too broad.

Accordingly, we have promulgated a

considerably expanded and more

specific set of criteria to take the place

of the proposed criterion. These criteria

are broken down into two categoriescriteria for listing acutely hazardous

waste and criteria for listing toxic

waste.

The criteria for listing acutely

hazardous waste are intended by EPA to

serve as the criteria for identifying

wastes which are so hazardous that

they can be said to meet part (A) of the

statutory definition of hazardous

waste-i.e., wastes which may "cause,

or significantly contribute to an increase

in serious irreversible, or incapacitating

reversible, illness", regardless of how

they are managed. It is EPA's conviction

that most wastes are hazardous only

because they "pose a substantial

present or potential hazard to human

health or the environment when

improperly managed" and thus meet

part (B) of the statutory definition of

hazardous waste. Nevertheless, EPA

recognizes that there are wastes which

are so acutely hazardous that they can

be considered to present a substantial

hazard whether improperly managed or

not. EPA has defined this category of

wastes to include those which have

been shown to be fatal to humans in low

doses or have been shown in

mammalian studies to have an oral LD

50 toxicity of less than 50 milligrams per

kilogram, (as determined using rats), an

inhalation LC 50 toxicity of less than

2000 milligrams per cubic meter (as

determined using rats), or a dermal LD

50 toxicity of less than 200 milligrams

per kilogram (as determined using

rabbits). Numerous government agencies

and private organizations, including the

Department of Transportation, the

Consumer Product Safety Coinmission

and the National Academy of Sciences,

recognize that substances exhibiting

these LD 50 and.LC 50 toxicities are so

potentially lethal as to be considered

poisonous or acutely toxic. EPA has also

defined this category of wastes to

include wastes, such as explosives,

which otherwise meet part (A) of the

statutory definition of hazardous waste.

This has been done in recognition that

wastes may be acutely hazardous even

if they are not toxic. Inasmuch as a

waste will meet the acutely hazardous

criteria only when the wh6le waste,

rather than just its cohstituents, presents

an acute hazard, EPA has employed and

intends to employ these criteria

primarily to list the discarded pure

chemical substances and associated

materials specified in § 261,33. EPA

recognizes, however, that there may be
Federal Register I Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

wastes such as wastes containing

substantial concentrations of potent

carcinogens which meet these criteria

even though they are not pure

substances.

The criteria for listing toxic wastes

are intended by EPA to identify all those

wastes which are toxic, carcinogenic,

mutagenic, teratogenic, phytotoxic, or

toxic to aquatic species. These criteria

provide that a waste will be listed

where it contains any of a number of

designated toxic constituents-unless,

after consideration of certain specified

factors, EPA concludes that the waste

does not meet part (B) of the statutory

definition of hazardous waste. As in the

proposed regulation, the ultimate

requirement for listing a waste as

hazardous is whether it meets the

definition of hazardous waste found in

the Act. Unlike the proposed regulation,

however, the final criteria significantly

channel the route the Agency must

follow in determining whether a waste

meets the statutory definition. The first

inquiry which must be made under the

final criteria is whether the waste

contains any of the toxic constituents

listed in Appendix VIII. These

constituents are ones which have been

shown in reputable scientific studies to

have'toxic, carcinogenic, mutagenic or

teratogenic effects on humans or other

life forms and include such substances

as those identified by the Agency's

Carcinogen Assessment Group.

Consequently, the presence of any of

these constituents in the waste is

presumed to be sufficient to list the

waste unless after consideration of the

designated multiple factors, EPA

concludes the waste is not hazardous.

These multiple factors include the type

of toxic threat posed, the concentrations

of the toxic constituents in the waste,

the migration potential, persistence and.

degradation potential of the toxic

constituents, the degree to which the

toxic constituents bioaccumulate in

ecosystems, the plausible types of

improper management to which the

waste could be subjected, the quantities

of waste generated, and other factors

not explicitly designated by the Act,

inclpding damage incidents involving

wastes containing the toxic constituents

and actions taken by other

governmental agencies with respect'to

the waste or its toxic constituents.

EPA has adopted this flexible,

multiple factor approach to listing rather

than the formulaic approach embodied

in the characteristics because it

considers this approach to be better able

to accommodate itself to complex

determinations of hazard. EPA further

believes that this multiple factor

approach was to some extent

contemplated by Congress. Most of the

factors selected are specifically

mentioned in Section 3001 of the Act.

Additionally, the report which

accompanied the Senate bill provided

that at a minimum the Administrator

should designate as hazardous each

mixture of solid waste which contained

a toxic or hazardous substance listed in

section 112 of the Clean Air Act or

section 307(a) and section 311(b) of the

Clean Water Act unless he determined

that the waste did not meet the criteria

for identifying hazardous wastes. Senate

Report 94-988, 94th Cong., 2d Sess. at 14.

Thus the Senate bill, like EPA's final

regulations, envisioned a presumption in

favor of listing based on the presence of

a toxic constituent in the waste which is

rebuttable by a consideration of further

factors. Although the Senate version of

the bill was not adopted, the concept

embodied therein was not specifically

rejected in the final statute, providing

some further basis for concluding that

EPA's approach for listing toxic wastes

reflects congressional intent.

As can be seen from the above

discussion, the final criteria for listing reflect a change in emphasis in the

Agency's regulatory strategy. EPA is not

fully confident that it can suitably define

and construct testing protocols for the

characteristics of organic toxicity,

carcinogenicity, mutagenicity,

teratogenicity, bioaccumulation

potential, phytotoxicity, radioactivity

and infectiousness, and is consequently

relying on the listing mechanism to bring

wastes exhibiting these properties into

the system. One negative aspect of thrs

change in approach is that it shifts to

EPA t primary burden for identifying,

analyzing and evaluating these wastes

with the result that it may take longer to

achieve full regulatory coverage. This

negative aspect is substantially offset,

however, by the greater flexibility and

assurance which the listing approach

provides, especially when accompanied

by the delisting procedure.

A notable difference between the

approach embodied in the

characteristics and the approach

embodied in the criteria for listing is

that EPA attaches less emphasis to

waste constituent migration and

subsequent environmental fate in the

listing mechanism than in the

characteristics. This is nowhere better

demonstrated than in the listing of

waste which contain primary drinking

water standards contaminants. In listing

wastes which contain primary drinking

water standards contaminants EPA has

elected to focus, in the first instance, on

the actual presence of the toxic

constituent in the waste and to treat

other factors such as migration potential

as essentially mitigating considerations

which might render the waste nonhazardous. EPA feels justified in

concentrating primarily on the

composition of the waste because the

listing mechanism allows for a more

individualized consideration of hazard

and because the delisting procedure

affords generators an opportunity to

demonstrate, through reliance on the

specified factors, that their waste is not

in fact hazardous. In the case of wastes

exhibiting the characteristic of EP

toxicity, on the other hand, there is no

opportunity to make such a

demonstration-since the test

prescribed in the characteristic

constitutes a final determination of

hazard. Consequently, out of concern

that the characteristic not be

overinclusive. EPA has placed

somewhat greater emphasis on

migration potential and has rigorously

incorporated this consideration into the

EP test.

As noted in section IIlA3. of this

preamble, EPA intends to supplement

the listing criteria to allow listing of

radioactive and infectious wastes. We

are deferring promulgation of the criteria

for listing radioactive wastes because

we want to wait until Congress has

spoken on this issue and because

deferral will give EPA more time to

refine its standards for listing these

wastes and to coordinate these

standards with the regulations

governing used. re-used recovered, and

reclaimed wastes. We are similarly

deferring promulgation of the criteria for

listing infectious wastes because we

have not finished developing the

treatment standards applicable to such

wastes.

A few clarifying changes have been

added to the final regulation. First, the

regulation provides that EPA may list

classes or types of wastes if it has

reason to believe that all wastes within

the class or type typically or frequently

are hazardous. Second, the regulation

provides that the criteria for listing will

be used to establish the exclusion limits

for acutely toxic wastes generated by

small generators. These exclusion limits

are referred to in § 261.5(c].

VI. Subpart C-CharacteristicS'of

Hazardous Waste

A. Section 26.20-General

This section is largely selfexplanatory. It states that a solid waste

is a hazardous waste if it exhibits any of

the characteristics of hazardous waste,

explains the assignment of EPA

Hazardous Waste Numbers, and

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

explains the method for obtaining a

representative sample in testing for

characteristics. Rather than specifying

particular procedures to be used in

obtaining representative samples,'EPA

is simply requiring the regulated

community to obtain samples which

meet the definition of representative

sample found in Part 260 of the

regulations. To provide some guidance

concerning compliance with this

requirement, EPA will consider ftiy

sample obtained using the sampling

methods indexed in Appendix I to be a representative sample within the

meaning of the Part 260 definition. Since,

however, these sampling methods are.

not being officially required by EPA

anyone desiring to use a different

sampling method may do so without

demonstrating the equivalency of that

method under the procedures set forth in

§ 260.21. . I I

B. Section 261.21 (Characteristic of

Ignitability)

In the proposed regulation, EPA

defined ignitable waste to include the

following: (1) Liquids having a flashpoint

of less than 1400 F (60* C) (2) non-liquids

liable to cause fires through friction,

absorption of moisture, spontaneous

chemical change or retained heat from

manufacturing or liable, when ignited, to

burn so vigorously and persistently as to

create a hazard (3) ignitable compressed

gases and (4) oxidizers.

EPA's objective was to identify

wastes capable of causing fires during

routine transportation, storage and

disposal and wastes capable of severely

exacerbating a fire once started. Such

fires, EPA recognized, pose a particular

danger to transportation and disposal.

personnel and also threaten the general.

public by generating toxic fumes and

creating convection currents which

transport toxic particulates to the

surrounding area. EPA adopted the

Department of Transportation's

definitions of ignitable compressed gas

and oxidizer and borrowed heavily from

the Department of Transportation's

definition of non-liquid ignitable

because it believed these definitions

adequately reflected routine waste

management conditions. At the same

time, it chose a flashpoint limit for*

ignitable liquid wastes different from

that specified by the Department of

Transportation's "flammable" liquid

category because it believed that the

flashpoint limit specified by the

Department of Transportation did not

fully reflect conditions likely to be

encountered during routine waste

management.

A large number of commenters argued

that EPA should adopt the Department

of Transportation's 1000 F flashpoint for

flammable liquids. These commenters

argued that EPA's adoption of a

different flashpoint limit from the

Department of Transportation is not

justified by conditions likely to be

encountered during waste management

and will create undue confusion in the'!

regulated community.

The Agency'disagrees with these

commenters. A number of EPA studies

reveal that ambient temperatures of 140"

F are regularly encountered during

landfill disposal. In such environments,

liquid wastes with flashpoints lower

than 140 F will readily volatilize and

can be easily ignited by the numerous

ignition sources to which wastes are

exposed-during management. The need

to regulate such wastes is borne out by

an early Department of Transportation

study which recommended that the'

Department of Transportation adopt a

flashpoint limit of 140 F for flammable

liquids because temperatures of this

order can be encountered during

transportation. The commenters who

argue that EPA's 1400 F flashpoint limit

is not justified by waste management

conditions forget that, through the

creation of its "combustible liquid"

category, the Department of

Transportation regulates liquids with

flashpoints of up to 200' F-a tacit

acknowledgement that EPA's 1400 F

flashpoint is well within the sphere of

potential concern. EPA does not believe that its ignitable

liquids category will create undue

confusionin the regulated community.

The term "ignitable" was specifically

chosen to eliminate confusion between

EPA's "ignitable" liquids category and

the Department of Transportation's

"flammable" 'liquids category.

Furthermore, EPA's ignitable liquids

category is one with which the regulated

community should already be familiar

since it encompasses Class I and Class

II liquids in the National Fire Protection

Association's classification scheme.

While EPA believes that maintaining

consistency between its definitions of

hazard and those of the Department of

Tran~portation is a desirable goal, it

does not believe that such consistency

should be achieved at the'expense of

human health and environmental

protection.

A number of commenters argued that

the 140" F flashpoint for liquids

improperly included many liquid wastes

such as wine and some latex paints

which exhibit low flashpoints because

of their alcohol content but do not

.sustain combustion because of the high

percentage of water present.

EPA agrees that such wastes should

not be designated as hazardous, but

unfortunatelyhas no data on hand

which identifies the correlation between

the concentration of alcohol in such

wastes and the established flashpoint of

1400 F. Accordingly, it has for the time

being opted to follow the Department of

Transportation's lead and exclude from

its ignitable liquids category aqueous

solutions containing less than 24 percent

of alcohol by volume. This exclusion

will remove from the ignitability

characteristic liquid wastes which the

Agency knows may flash but not sustain

combustion. In the meantime, EPA

hopes to undertake further study to

determine whether another exclusion

limit is more appropriate and to

evaluate tests which might be capable of

identifying wastes which exhibit this

phenomenon.

Many commenters argued that the

proposed definition of solid ignitable

wastes was too vague and that a testing

protocol was needed to provide proper

guidance. A number of these

comnienters took particular issue with

the phrase ". . . or when ignited burns

so vigorously and persistently as to

create a hazard during its management • . ." which they felt could be construed

to include such non-hazardous materials

as bark, wood chips, wastepaper,

sawdust, corrugated boxes, etc.

EPA agrees that the proposed

definition of solid ignitable wastes was

perhaps imprecise and could stand

clarification. It has no intention of

designating such things as wastepaper

and sawdust to be hazardous and is

only interested in capturing the small

class of thermally unstable solids which

are liable to cause fires through friction,

absorption of moisture or spontaneous

chemical changes. Accordingly, to

eliminate any misunderstanding, we

have changed the definition of ignitable

solid to read ". . and when ignited

burns so vigorously and persistently that

it creates a hazard."

Although EPA would have preferred

providing a test method for identifying

ignitable solids, it has determined, after

diligent inquiry, that there are no test

methods capable of accurately

identifying the small class of ignitable

solids to which its regulation is directed.

EPA is presently working with the

Department of Transportation and other

organizations to correct this deficiency,

In the meantime, the absence of a test

should not cause too much of a problem

since generators of thermally unstable

solids, like generators of reactive

wastes, are likely'to be aware that their

waste exhibits this property.

A number of commenters argued that

EPA improperly included in its

definition of ignitable solids, wastes

such as slags which are liable to cause

33108
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fires through "retained heat from

manufacturing or processing." EPA agrees that these wastes should

not be designated as hazardous and has

accordingly deleted the phrase "or

retained heat from manufacturing or

processing" from the definition of

ignitable solids. EPA was originally

concerned that wastes such as slags, if

placed in a landfill, could present a

hazard by raising the temperature of

other wastes to their flashpoints. It is

now convinced that the likelihood of

such high volume wastes being placed in

a landfill is sufficiently small as not to

warrant their regulation.

C. Section 261.22 (Characteristic of

Corrosivity)

In the proposed regulation, EPA

defined corrosive wastes to include (1)

aqueous wastes exhibiting a pH of less

than or equal to 3 or greater than or

equal to 12 and (2) liquid wastes capable

or corroding steel at a rate greater than

0.250 inches per year. This definition

attempted to address the various

hazards presented by corrosive wastes.

EPA chose pH as one barometer of

corrosivity because wastes exhibiting

low or high pH can cause harm to

human tissue, promote the migration of

toxic contaminants from other wastes,

react dangerously with other wastes,

and harm aquatic life. EPA chose metal

corrosion rate is its other barometer of

corrosivity because wastes capable of

corroding metal can escape from the

containers in which they are segregated and liberate other wastes.

A majority of commenters argued that

the proposed pH limits were unduly

stringent. These commenters pointed out

that the proposed upper pH limit of 12.0

would include many otherwise nonhazardous lime-stabilized wastes and

sludges, thereby discouraging use of this

valuable treatment technique. They

further pointed out that the proposed

lower pH limit of 3.0 would include a

number of substances generally thought

to be innocuous and many industrial

wastewaters prior to neutralizatiori.

They questioned EPA's assertion that

the proposed lower pH limit was needed

to protect against tissue damage.

EPA agrees that the proposed pH

limits were unnecessarily stringent and

has accordingly adjusted the upper pH

limit to 12.5 and the lower pH limit to

2.0. In originally establishing the

proposed limits, EPA was confronted

with the difficulty that while the

tendency to promote the solubilization

of heavy metal contaminants and to

cause harmful reactions generally

increases as pH approaches the upper

and lower limits of the pH scale, there

are no threshold levels for these effects.

Consequently, to a significant extent,

EPA based the proposed pH levels on

studies demonstrating a correlation

between pH and eye tissue damage.

Since eye tissue is considered to be

more sensitive than other human tissue,

the proposed pH levels were

unnecessarily conservative and had the

unintended effect of inhibiting the use of

such beneficial processes as the lime

stabilization of wastes. The expanded

pH range being adopted today rectifies

this problem by excluding such things as

lime stabilized wastes from the system.

It also addresses the problem of tissue

damage more realistically while at the

same time providing ample protection

against the solubilization of toxic

contaminants and dangerous reactions.

A number of commenters commented

on the need for addressing percent

acidity and alkalinity in the pH

provision of the corrosivity

characteristic. A few commenters

favored adding percent acidity/

alkalinity to the pH provision because it

would provide useful information for

disposal purposes. Most commenters,

however, felt that percent acidity/

alkalinity should not be addressed

because it would not add significantly to

the determination of hazard and would

require the use bf a more complicated

measurement technique.

EPA agrees with most commenters

that the addition of percent acidity/

alkalinity to the pH provision is

unnecessary. Percent acidity/alkalinity

provides an indication of the capacity of

a waste to resist a change in pH and

therefore to aid in the assessment of the

hazard presented by a waste over the

long term. However, it adds little to the

assessment of the hazard posed by the

waste during transportation, storage and

initial disposal. Furthermore, because

the capacity of a waste to retain low or

high pH is as much a function of its

disposal or storage environment as of its

percent acidity/alkalinity, the Agency

knows of no scientifically valid basis

upon which to establish hazardous

threshold levels of percent acidity/

alkalinity. Accordingly, EPA has elected

not to address percent acidity/alkalinity

in the corrosivity characteristic.

A few comments were received on the

need for including corrosive solids in the

corrosivity characteristic. All advocated

including solids in the corrosivity

characteristic but none described

situations where the improper disposal

of such wastes would be likely to cause

damage.

EPA has concluded that, inasmuch as

the great majority of wastes are

presumed to be in liquid or semi-liquid

form, there is no demonstrated need to

address corrosive solids at this time.

EPA will, however, continue to seek

information on the dangers presented by

these wastes and will consider specific

regulatory measures if the need for more

control becomes apparent.

A number of commenters suggested

that the corrosivity characteristic should

address tissue damage more directly

and employ a skin corrosion test.

Several of these commenters pointed to

a Consumer Product Safety Commission

survey which ostensibly casts doubt on

the ability of pH to predict tissue

damage.

EPA believes that there is sufficient

correlation between pH and tissue

damage to justify the use of pH in a

regulatory context, especially in view of

the fact that it is using pH as a multipurpose measure of many elements of

concern. Requiring the regulated

community to conduct skin corrosion

tests, which necessitate the

maintenance of special facilities and

skilled personnel. would prove

unnecessarily burdensome and would

yield little in the way of extra results.

Accordingly. EPA is not including a skin

corrosion test in the final regulation. At least one commenter noted that the

NACE metal corrosion test specified in

the proposed regulations permits

variation in a number of test conditions.

To correct this problem, EPA has

standardized the conditions of the

NACE test in its test methods guidance

manual and has required generators to

utilize this standardized version in

running the test.

D. Section 261.23 [Characteristic of

reactivity)

The proposed regulation defined

reactive wastes to include wastes which

(1) readily undergo violent chemical

change (2) react violently or form

potentially explosive mixtures with

water (3) generate toxic fumes when

mixed with water or, in the case of

cyanide or sulfide bearing wastes, when

exposed to mild acidic or basic

conditions (4) explode when subjected

to a strong initiating force (51 explode at

normal temperatures and pressures or

(6) fit within the Department of

Transportation's forbidden explosives,

Class A explosives, or Class B

explosives classifications.

This definition was intended to

identify wastes which, because of their

extreme instability and tendency to

react violently or explode, pose a

problem at all stages of the waste

management process. The definition

was to a large extent a paraphrase of

the narrative definition employed by the

National Fire Protection Association,

although test protocols for measuring

thermal and shock instability were

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

prescribed as a partial aid in assessing

reactivity. The Agency chose to rely on

a descriptive, prose definition of

reactivity because the available tests for

measuring the variegated class of effects

embraced by the reactivity definition

suffered from a number of deficiencies.

EPA received a large number of

comments which argued that the prose

definition of reactivity employe'd by EPA

is too indefinite and vague and gives

generators inadequate guidance in

assessing the reactivity of their waste.

These comments advocated replacing

the prose definition with a numerically

quantified definition accompanied by

appropriate testing protocols.

EPA has attempted where possible to

define hazardous waste characteristics

in terms of specific, numerically

quantified properties measurable by

standardized testing protocols. The

available test methods for reactivity,

however, suffer from a number of

generic and individual shortcomings

which make a numerically quantified

definition with accompanying test

protocols inappropriate. First, these

tests are too restrictive in scope and

confine themselves to measuring how

one specific aspect of reactivity

correlates with a specific initiating

condition or stress. No test is

sufficiently general to even begin to

measure the variety of different stresses

and reactions found within the reactive

classification. Second, because the

reactivity of a waste sample is a

function not just of its intensive

properties such as density and

composition but also of its extensive

properties such as mass and surface

area, the reactivity of the sample as

measured by the tests willnot

nece~sarily reflect the reactiviW of the

whole waste. Third, most of the

available tests are not of the "pass-fail"

type and require subjective

interpretation of the results.

The unavailability of suitable test

methods for measuring reactivity should

not cause problems. Most generators of

reactive wastes are aware that their

wastes possess this property and require

special handling. This in because such

wastes are dangerous to the generators'

own operations and are rarely generated

from unreactive feed stocks.

Consequently, the prose definition

should provide generators with

sufficient guidance to enable them to

determine whether their wastes are

reactive.

A number of commenters argued that

the two proposed test methods for

measuring reactivity were, among other

things, unreliable and difficult to

interpret. EPA agrees with these

commenters that the two proposed test

methods-the Explosion Temperature

Test and the Bureau of Explosives shock

instability test suffer from a number of

inadequacies and add little to the prose

definition. Although the Explosion

Temperature Test was originally thought

to be asuitable method for measuring

one aspect of reactivity, field testing

demonstrates that this test requires

subjective interpretation of the results.

Re-evaluation of the shock instability

test suggests that it too possesses

problems which make its utility as a

measure of reactivity questionableespecially in view of its narrow scope.

Accordingly, EPA has stricken these two

tests from the regulations except to the

extent the Department of

Transportation's definition of Class A - explosives requires use of the shock

instability test.

Several commenters took issue with

* the inclusion in the reactivity definition

of any waste which "generates toxic

gases, vapors or fumes when mixed with

water" and "any cyanide or sulfide

bearing waste which can generate toxic

gases, vapors or fumes when exposed to

mild acidic or basic conditions." These

commdrnters -complained that this

language lacks specificity. As an

example, they noted that quite a few

things contain sulfides and cyanides in

trace amounts and can generate minute

quantities of hydrogen sulfide or

hydrogen cyanide under acidic or basic

conditions.

EPA agrees that the language in

question could benefit from clarification.

It has accordingly amended the

regulation to include only those wastes

which generate toxic gases, vapors and

fumes in "a quantity sufficient to

present a danger to human health or the

environment" It has also specified that,

by mild acidic or basic conditions, it

means pH conditions of between 2 and

12.5. This pH range was chosen because

only waste inside this pH range can be

managed without regard to the

prohibitions imposed by Subtitle C.

Consequently, these pH conditions are

likely to be the most stringent

encountered by cyanide and sulfide

bearing wastes.

E. Section 261.24 (Characteristic of EP

Toxicity)

There is persuasive evidence that the

contamination of groundw'ater through

the leaching of waste contaminants from

land disposed wastes is one of the most

prevalent pathways by which toxic

waste constituents migrate to the

environment. EPA's damage files

contain numerous incidents of

groundwater pollution resulting from the

indiscriminate dumping and improper

landfilling of wastes. Additionally, the

legislative history of RCRA is replete

with indications that such groundwater

contamination was one of Congress'

primary areas of concernin the

proposed regulation, EPA addressed this

problem by developing a test procedure

called the Extraction Procedure (EP)

designed to identify wastes likely to

leach hazardous concentrations of

particular toxic constituents into the

groundwater under conditions of

improper management. Under this

procedure, constituents were extracted

from the waste in a manner designed to

simulate the leaching action that occurs

in landfills. This extract was then

analyzed to determine whether it

possessed any of the toxic contaminants

identified in the National Interim

Primary Drinking Water Standards

(NIPDWS). If the extract contained any

of the contaminants in concentrations 10

times greater than that specified in the

National Interim Primary Drinking

Water Standards, the waste was

considered to be hazardous.

Like other test procedures employed

to identify hazardous characteristics, the

.EP was intended to serve as a quick test

for identifying wastes which are capable

of posing a substantial present or

potential hazard when improperly

managed. Consequently, in devising the

test, EPA necessarily had to make

certain assumptions about the improper

management to which toxic wastes

capable of contaminating groundwater

are likely to be subjected. In making

such assumptions, EPA believed It

important to employ a reasonably

conservative mismanagement

scenario-in view of the statutory

mandate to protect human health and

the environment, the broad statutory

definition of hazardous waste and also

because the phenomenon of long term

leaching is only incompletely

understood. On the other hand, EPA

considered it important not to utilize a

wholly implausible mismanagement

scenario, since by doing so it would end

up regulating as hazardous those wastes

which were quite unlikely to ever cause

a problem.

The result of these deliberations was

a decision to model the EP upon a

mismanagement scenario for toxic

wastes which constitutes a prevalent

form of improper management-namely,

.the co-disposal of toxic wastes in an

actively decomposing municipal landfill

which overlies a groundwater aquifer.

EPA realized in making its co-disposal

assumption that actively decomposing

municipal waste'landfills generate more

aggressive leachate media than other

landfills and thus, that its assumption

was a relatively conservative one, It

I

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nevertheless believed the co-disposal

assumption to be reasonable, first,

because wastes are customarily

landfilled, second, because most

categories of waste have the potential to

be disposed of in municipal waste

landfills, third, because the predicted

degree of contaminant concentration in

leachate could occur with respect to

wastes which are not likely to be

disposed of in municipal landfills and

fourth, because Congress expressed

particular concern about the disposal of

toxic wastes in municipal landfills. EPA

also realized its assumption that the

landfill overlies a groundwater aquifer

was a relatively conservative one. It

believed, however, that this assumption

was consistent with its concern for the

disposal of wastes in environmentally

sensitive areas and with the fact that a

groundwater body, once contaminated,

may remain contaminated for a number

of years. Furthermore, it believed this

assumption to be somewhat mitigated

by its further assumption that there

would be some attenuation in the

concentration of toxicants in the

leachate between the point the leachate

leaves the disposal site and the point the

toxicants reach environmental

receptors.

Taking these assumptions as its

framework, EPA developed the EP test

to simulate the physical processes which

would occur in an actual landfill

characlerized by thdse assumptions. To

simulate the acidic leaching medium

which occurs in actively decomposing

municipal landfills, EPA chose to

employ an acetic acid leaching medium

with a pH of 5.0 (_0.2). To simulate the

leaching process, EPA specified a

procedure requiring mixing of the solid

component of the waste with the acidic

leaching medium for a period of 24

hours. To duplicate the attenuation in

concentration expected to occur

between the point of leachate

generation and the point of human or

environmental exposure, EPA applied a

dilution factor of 10 to the concentration

of toxic constituents observed in the test

extract.

EPA was convinced that the proposed

EP represented a valid and acceptable

test for identifying wastes likely to leach

toxic constituents into groundwater.

Because, however, this test was

innovative in character and reflected a

fair amount of groundbreaking inquiry, it

drew the greatest response from the

public of all the test protocols utilized in

identifying the characteristics. The most

important of these comments are

discussed below.

A number of commenters expressed

disagreement with EPA's proposed use

of a 10-fold dilution factor to calculate

the attenuation in toxicant

concentration expected to occur

between the point at which the leachate

leaves the waste and the point of human

or environmental exposure. Some

commenters thought that the 10-fold

dilution factor was too liberal and that

no dilution factor would be more

appropriate. The majority felt that the

10-fold dilution factor was too

conservative and that a higher dilution

factor would be more appropriate.

Choosing an attentuation factor which

reasonably represents the amount of

attenuation likely to occur in the real

world was one of the most difficult

problems EPA faced in formulating the

EP-a problem which reflects in

microcosm many of the difficulties of

modeling complex physical processes

with a short term test. As leachate

migrates verticdlly from the landfill site

towards the groundwater strata, a

number of attenuating processes can

occur-including adsorption, absorption,

ion exchange, filtration, and dilution.

When the leachate enters the

groundwater zone its movement changes

from vertical to horizontal and it will

tend to form a slug or plume of

contaminated water rather than mix

generally with the groundwater flow.

This plume of contaminants may

experience some dilution, depending on

the local geology, the groundwater flow,

and the nature of the contaminants.

Once the plume of contaminated water

is drawn into a pumping well, some

further dilution tends to take place,

depending upon the amount of water

withdrawn and the rate at which it is

withdrawn. Unfortunately, all these

attenuation mechanisms are dependent

upon site specific conditions. While

some sites may exhibit attenuation of

500-fold, others will exhibit very little

attenuation at all. Moreover over time, a

site that originally exhibits 500-fold

attenuation may become so saturated

that the attenuation mechanisms no

longer work and the site begins to flush

at the same rate at which it is charged.

In order to formulate a reasonable

dilution factor, EPA assumed in the

proposed regulations that leachate from

the landfill passed unattenuated through

the soil underlying the landfill to the

groundwater zone and that drinking

water wells were situated 500 feet down

gradient from the landfill site. Relying

on projections from a mathemalical

model which incorporated these

assumptions and on empirical data from

field analyses, EPA concluded that a

dilution factor of 10 was a conservative,

but reasonable, figure.

EPA has had an opportunity to

carefully re-evaluate its original choice

of a dilution factor and is now of the

opinion that the 10-fold dilution factor

was inappropriate. A number of

considerations have prompted it to come

to this conclusion. In the first place, EPA

is concerned that, while the dilution

factor plays a critically important role in

determining the scope of coverage of the

EP, there is relatively little empirical

data upon which to base such an

attenuation factor. It is consequently

somewhat troubled by its assumption

that the soil underlying the landfill is a

delay mechanism only and that there is

no attenuation in the concentration of

toxic contaminants between the point of

actual leachate generation and arrival at

the groundwater aquifer. Second, in

view of this uncertainty, EPA attaches

some importance to the fact that there is

no variance or "delisting" procedure for

wastes which fail the EP. This absence

of a variance procedure, while perfectly

permissible, tends to magnify the

consequences of a wastes being

anomalously brought into the system by

the EP. Third, EPA believes the EP to be

a somewhat less precise instrument than

the listing mechanism for determining

hazard, inasmuch as the EP fails to take

into account factors such as the

concentration of toxicants in the waste

itself and the quantity of waste

generated which could have a bearing

on the hazardousness of the waste. EPA

consequently prefers to entrust

determinations of marginal hazard to

the listing mechanism rather than to the

EP.

On the basis of these considerations,

EPA has decided, pending the

completion of further studies, to alter the

proposed dilution factor by adopting an

attenuation factor of 100. EPA is

adopting a 100-fold attenuation factor

because it is confident that anything

which fails the EP at this factor has the

potential to present a substantial hazard

regardless of the attentuation

mechanisms at play. If forthcoming

studies demonstrate that another

attenuation factor is more appropriate

EPA will adjust the dilution factor

accordingly.

EPA does not intend this alteration in

the dilution factor to constitute what

may be perceived as an untoward

relaxation of the EP. It is simply electing

to exercise a degree of caution in the

face of the lack of empirical

substantiation for its EP leaching test to

ensure that the EP only captures wastes

which are certain to present a

substantial hazard. Since this alteration

of the attenuation factor is based as

much on EPA's desire to engage in

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cautionary rulemaking as on an "

environmental re-evaluation of the

attenuative processes which influence

concentrations in leachate, EPA has

listed and intends to continue to list

wastes which have extract

concentrations of less than 100-times

drinking water standards. This listing

will to a significant degree compensate

for the alteration in the attenuation

factor and will prevent the overall

coverage of the Subtitle C regulations

from being measurably reduced.

A number of commenters argued that

EPA improperly based the EP on a

mismanagement scenario which

assumed co-disposal in the acidic

environment of a municipal waste

landfill. These commenters generally

argued that the co-disposal assumption

is inapplicable to numerous classes of

waste which are never co-disposed with

municipal Wastes and which do not

leach at the aggressive rates

characteristic of co-disposal situations.

These commenters suggested that EPA

employ an alternative leachate medium,

such as distilled water, for those^ wastes

which are unlikely to be co-disposed

with municipal wastes.

EPA disagrees with these

commenters. EPA believes that the level

of leachate concentration predicted by

the EP is reasonably in keeping with the

concentrations which could realistically

occur in most waste management

situations and that employment of an acidic leaching medium is therefore

appropriate. Most wastes, even those

which are unlikely to be disposed of in a

municipal landfill, are likely to come

into contact with some form of acidic

leaching media during their management

histories or could otherwise encounter

environments which could cause them

to leach comparable levels of toxic

constitutents. Furthermore, inasmuch as

the phenomenon of long term leaching is

not well understood and there is no

consensus within the scientific

community on a short term leaching test,

EPA believes ithas the power to employ

a leaching model which fails to take into

account the physical processes affecting

particular generators even if this model

errs on the side of caution. See, Ethyl

Corp. v. EPA, 541 F.2d 1, 24-29 (D.C. Cir.

1976 en hanc); Hercules, Inc. v. EPA, 598

F.2d 91, 104-106 (D.C. Cir. 1978).

In any event, the change to an

attenuation factor of 100 lays to rest the

concerns of those who argued that the

acidic leaching medium was too

aggressive to apply to them. EPA is quite

convinced that any waste which fails

the EP at the 100-times standard

presents the potential for substantial

hazard if improperly managed no matter

what leaching media it is actually

exposed to. . A number of commenters argued that

the EP is not sufficiently reproducible

for use in-defining hazardous waste.

Some commenters, basing their

argument on studies which have been

conducted on the reproducibility of the

EP, argued that these studies

demonstrate an unacceptable variability

in the results obtained by the EP. Other

commenters', who did not base their

arguments on these studies, argued

simply that EPA hasnbt shown-the EP to

be reproducible and therefore may not

appropriately employ the EP in a

regulatory framework.

EPA disagrees. Sensitive throughout

the process of developing the EP to the

issue of ensuring reproducibility, EPA

commissioned a number, of studies to

evaluate the EP, including a study by the

NUS Corporation, a study by the

American Electroplaters' Society, and

an ongoing study being conducted by

the Oak Ridge'National Laboratory. In

addition, a study commissioned by the

Electric Power Research Institute (EPRI)

has been completed. None of these

studies present enough data-to draw any

hard and fast conclusions; However,

data from the EPRI report-the only

report which was able to separate out

the reproducibility of the EP from the

reproducibility of the analytical

procedures-suggests that the

reproducibility of the EP itself is of the

same order of magnitude as the

analytical procedures used to analyze

,the toxic constituents in the extract.

Since these analytical procedures have

proven to be widely acceptable to

private industry, EPA believes that the

EP should also prove acceptable.

EPA concedes that the preliminary

data indicate some variability in the

results obtained by the EP. This,

however, is true of all analytical

procedures and test methods, especially

those which are novel in character.

Furthermore, variability can be easily

corrected by running.further replicates

of the test to achieve greater certointy in

the results. To accommodate any , problems with variability, EPA intends

to provide generators with guidance on

the number of extractions which they

can perform if they want to ensure

confidence in the result. In addition,

EPA is engaged in research studies

which will enable it to further isolate

and get a handle on the causes of this

variability.-

A number of commenters argued that

extract from the EP should be tested for

toxic contaminants other than those

specified in the National Interim

Primary Drinking Water Standards.

EPA originally intended the extraction

procedure to identify toxic contaminants

other than those specified in the

National Interim Primary Drinking

Water Standards. EPA has been unable

to-do this, however, because no other

chronic exposure threshold levels

relating to drinking water consumption

have been established for other

contaminants. This should not cause a

problem, because EPA is regulating

wastes containing non-drinking water

standard contaminants through the

listing procesi. EPA will reassess its

position on this issue, when thresholds

are developed for additional

contaminants or when the Clean Water

Act Water Quality Criteria are adopted

in final form.

The proposed EP required generators

to separate the liquid and solid portions

of their waste as the first step of the

procedure, basedon the assumption that

the liquid portion of the waste would

flow out of the landfill independent of

any leaching action. Generators were

then required to mix the separated solid

portion with the acidic leaching medium

and, after a further separation, combine

the resulting extract with the originally

separated liquid portion for analysis.

EPA gave generators the option of using

either centrifugation or filtration to

perforfa the initial solid-liquid

separation and to perform the

subsequent separation of solid from

leaching solution. However, information

obtained since publication of the

proposed regulation indicates that use of

centrifugation alone is not as efficient as

filtration and can lead to carryover of

particles larger than 0.45 um. Since a

filter the size of 0.45 am was originally

selected because particles larger than

0.45 um are expected to be filtered out

by the soil prior to reaching the

groundwater, EPA has revised the EP to

require filtration of both the liquid

portion and the extract prior to analysis. A number of commenters said they

encountered severe operational

problems when performing the EP on

liquids containing very small

percentages of solids. To accommodate

this problem, EPA is amending the

proposed regulation so generators need

not perform the EP on liquids containing

less than 0.5% solids. Instead, the liquid

itself, after filtration, should be

considered the extract and directly

analyzed for its toxic constituents.

VII. Subpart D

A. Sections 261.31 and 261.32

(Hazardous Wastes From Specific and

Non-Specific Sources)

1. Methodology for Listing Hazardous

Waste Streams. Detailed justification

I I I I

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for listing each hazardous waste in

Subpart D is contained in specific

background documents, and so will not

be set forth in this preamble. The

general methodology used to support

listings will, however, briefly be

described.

The listing documents are based on

the listing criteria contained in § 261.11.

The documents are organized in the

following sequence: (1) A summary of

the Administrator's basis for listing each

identified waste stream; (2) a brief

description of the industry (or

industries) generating the listed waste

stream; (3a) a description of the

manufacturing process or other activity

which generates the waste, (3b)

identification of waste composition,

constituent concentrations, and annual

quantity generated.1 and (3c) a

description of waste management

methods; (4) a discussion of the basis for

listing each waste stream (described

more fully below]; and (5) a summary of

the adverse health effects of each of the

waste constituents of concern. The

documents also contain appendices

describing in more detail the adverse

health effects of the waste constituents

of concern, and (for certain documents).

compiling afailable environmental fate

and transport data (including data on

waste constituent solubility, volatility,

and environmental persistence) for each

such waste constituent.

a. Basis for Listing Toxic Wastes. (1)

Outline of Listing Discussion.

For hazardous wastes listed because

they meet the criteria of toxicity, the

discussion of the basis for listing

identifies the waste constituents of

concern, whether these constituents are

present in significant concentrations,

and the hazards associated with each

waste constituent. The discussion then

addresses whethe these waste

constituents, if the waste are managed

improperly, could migrate from waste

management sites, persist in the

environment, and reach environmental

receptors so as to cause substantial

hazard. The analysis generally follows a

physical continuum: whether waste

constituents are inherently capable of

migrating from the matrix of the waste

in concentrations sufficient to cause

substantial hazard, whether waste

mismanagement could lead to

environmental release of the migrating

waste constituents, and whether waste

'Waste composition and constituent

concentrations have been determined either by

actual analysis of waste samples, through literature

searches, or on the basis of process engineering and

process chemistry assumptions. When process

assumptions are used to identify waste constituents

and concentrations, the bases for the assumptions are contained in the document.

constituents are mobile and persistent

enough to reach environmental

receptors and cause substantial hazard

upon environmental release. In some

cases, actual damage incidents

involving the waste or waste

constituents demonstrate empirically

that waste constituents may migrate,

persist, and cause substantial harm if

mismanaged. 2

A word as to the types of

mismanagement situations considered.

The Agency has limited its discussion to

waste management situations which

could plausibly occur with regard to the

waste at issue. In the Agency's view, the

hazard posed by a waste are not "substantial" (Section 1004(5)(B)) if

hazards could arise only as a result of

implausible types of waste

mismanagement. Thus, the Agency

would not examine possible hazards

arising from improper waste

incineration if the waste in question is

not likely to be incinerated. On the other

hand, the fact that a waste is properly

managed by particular generators or

particular classes of generators does not

make the waste non-hazardous, as the

statute requires that EPA determine

whether a waste is hazardous if

substantial hazard could result when

wastes are "improperly treated, stored,

transported, or disposed of, or otherwise

managed." The potential of the waste to

cause hazard is therefore the key factor.

Consequently, if most or all generators

of an otherwise hazardous waste

dispose of the waste properly, for

example in lined lagoons, the Agency

may still consider hazards which could

result from improper waste lagooning.3

(2) Relative Importance Attached to

Identity of Waste Constituents and

Constituents' Transport and Fate in

Making Toxicity Listing Determinations.

It must be emphasized that in making

listing determinations, the Agency's

principal focus is on the identity of the

waste's constituents, and on constituent

concentrations in the waste and the

nature of the toxicity presented by the

constituents. Where a waste contains

significant concentrations of hazardous

waste constituents, the Agency is likely

to list the waste as hazardous unless it

is evident that the waste constituents

are incapable of migrating in significant

concentrations even if improperly

=Other factors identified in I milaI(al3) are also

considered when relevant, and when information is

available. These factors include the quantities of

waste managed, and actions of other gove-nmental

agencies or regulatory programs with regard to

health or environmental hazards posed by the

waste or by waste constituents.

lIndeed. in this hypothetical example, the fact

that an industry takes special precautions in

managing the waste suggests that the industry itself

regards the waste as hazardous.

managed, or that the waste constituents

are not mobile or persistent should they

migrate. This is particularly true where

the waste constituents include suspect

or proven carcinogens. As EPA recently

stated, "(T)here is no scientific basis for

estimating 'safe' levels of carcinogens.

The draft criteria for carcinogens

therefore state that the recommended

concentration for maximum protection

of human health is zero." (EPA Water

Quality Criteria, 44 FR 15926.15930

(March 15,1979).) Thus, if suspect or

known carcinogens are present, an

additional cancer may result should the

waste constituent migrate and reach a

receptor in any concentration, certainly

a sufficient risk to constitute a "substantial present or potential

hazard" (Section 1004(5)(B)). In this

situation, the Agency would require

virtual assurance that waste

constituents will not migrate and persist

if improperly managed to justify a

decision not to list the waste.

The Agency therefore does not seek to

demonstrate that waste constituents will

migrate and persist in sufficient

concentrations to cause substantial

hazard. Rather, fate and transport

information is relevant to show that the

potential for harm inherent in the waste

(by virtue of its composition) will not

eventuate. But, as stated, there must be

a very strong likelihood that hazardous

constituents are unable to migrate or

persist to cause substantial harm before

the Agency will decide not to list a

waste.4

The Agency believes that this

methodology is fully in accord with

statutory requirements. Thus, this

approach accords with the requirement

of Section 3001(a) that environmental

fate be considered in identifying wastes

as hazardous. At the same time, the key

focus is on the inherent potential of

waste constituents to cause substantial

harm. in accord with the definition of

hazardous waste, which requires only

that a waste "may pose a substantial

present or potential hazard" to be

hazardous. (Section 1004(5)(B], emphasis

added.)

(3) Data Base for Toxicity Listing

Determinations.

The Agency anticipates arguments

that these toxicity listing determinations

are made on the basis of inadequate

data, and that listings be deferred until

further information is gathered. EPA

recognizes that these listing

4§ 2611.11(a)(3) reflects that the wastes

composition is the key factor in determining to list

wastes as hazardous, since wastes containing

enumerated constituents are to be listed unless

consideration of particular additional factors

demonstrates that the wastes do not meet the

statutory hazardous waste dermition.

33113
33114 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

determinations are essentially

qualitative judgments, generally

involving expert assumptions based onavailable physical data rather than

precise field determinations of waste

composition or of how the wastes will

act under identified conditions.

However, the statute requires only that

a qualitative judgment be made, namely

that the wastes, if mismanaged, pose

sufficient potentiality of hazard to

warrant careful regulation. The Agency

believes that it has compiled sufficient

information on which to make this

judgment. Nor would the delay

necessary to compile in-depth (though

quite likely cumulative or redundant)

information on potentially hazardous

wastes be sufferable in light of the

urgent need for rapid implementation of

the hazardous waste management

program.5 In any case, opportunity is

afforded by means of a new comment

period for affected parties to present

additional information on the listed

waste streams, and such comments are

solicited.

b. Basis for Listing Ignitable, Corrosive,

Reactive or EP Toxic Wastes

The basis for listing ignitable,

corrosive, or reactive wastes is much

simpler. These wastes, to be listed, must

possess the appropriate characteristic,

and the listing discussion is directed

toward making this demonstration.

2. Legal Authority to List Wastes

Generically. A number of conimenters

challenged the Agency's legal authority

to list wabtes generically. They stated

that under Section 3001(b), the

Administrator is to list "particular

'hazardous wastes," arguing that this

language requires wastes to be listed

individually, rather than as a generic

class. These commenters also argued

that the statute's legislative history

supports their view, noting that the

House report to RCRA states that "the

Administrator shall promulgate

regulations identifying and specifically

listing those hazardous wastes subject

to this title." H.R. Rep. at 56 (empasis

added). The Agency disagrees with this

interpretation. Although Congress

clearly intended to distinguish the

promulgation of haiardous waste

characteristics from the listing of

hazardous wastes, there is no clear

indication that Congress further

intended to lfinit the Administrator's

discretion by precluding listing of

classes of wastes. In the Agency's view,

'See, e.g., Report on Hazardous Waste

Management and the Implementation of the

Resource Conservation and RecoveryAc Senate

Subcommittee on Oversight of Government

Management of the Senate Committee on Governmental Affairs, 96th Cong., 2d Sess. 7 (1980].

a class of wastes may be listed

generically so long as most of the

wastes in the class are typically or

frequently hazardous, and so long as the

listing description is sufficiently specific

and particularized for individual

generators to determine whether their

wastes streams are included within the

listing.

Thus, Section 3001(a), far from

prohibiting listing of wastes by classes,

simply distinguishes the use of criteria

to idenfity hazardousness

characteristics and to identify listed

hazardous wastes.

The Administrator shall * * develop

and promulgate criteria for identifying the

characteristics of hazardous waste, and for

listing hazardous waste * * *

Section 3001(b) carries forward this

distinction:

[Tihe Administrator shall promulgate

regulations identifying the characteristics of

hazardous waste and listing particular

hazardous wastes * * * Such regulations

shall be based on the criteria promulgated

under subsection [a) * * *,

To argue that Section 3001(b) was

intended to bar any listing of wastes by

class consequently reads far too much

into the language of that provision.

Indeed, Section 3001(a) does not refer to

listing of particular wastes. This

wording certainly militates against

attaching too much importance to the

reference to "particular wastes" in

Section 3001(b). 6

The legislative history likewise

indicates that Congress' concern was that the identification of wastes through

characteristics or through listing be

regulatorily distinct mechanisms, and

that the listing criteria not be confused

with hazardous wastes themselves, not

that generic listing be prohibited. The

House report to RCRA thus refers to a

"bifurcation of developing the criteria

for what is a hazardous waste separate

from the identification and listing of the

hazardous wastes * * * " and cautions

that "the critera for determining what

should be considered hazardous should

not be confused with an actual

hazardous waste * * *" H.R. Rep. at

25.

Moreover, Congress itself, in the

principal report to RCRA, used generic

'In any case, the words "particular" and

"specific" do not necessarily connote

"individualized." For instance, the first definition of

"specific" in Webster's New Collegiate Dictionary

is "constituting or falling into a specifiable

category." Similarly, the same source defines

"particular" as "distinctive among others of the same general category." Thus, the statutory

language, far from requiring individualized listing, requires that listing be done with sufficient

particularity to distinguish listed and unlisted

wastes.

waste descriptions to identify hazardous

wastes involved in damage incidents.

Examples include identification of "electroplating wastes" (H.R. Rep. at

18), waste "petrochemicals" (id. at 18,

19], and "munitions waste" (id. at 20).

This means of identification again

suggests strongly that Congress

envisioned generic identification as a

means of bringing hazardous wastes

into the Subtitle C management system.

Some commenters went on the argue

that the statutory requirement to take

factors such as toxicity, persistence,

potential for bioaccumulation, quantity,

and concentration into account in

making listing determinations (see

Sections 3001(a) and 1004(5): see also

H.R. Rep. at 25) demonstrates

Congresssional intent to prohibit gqnerlc

listings because "(t)hese factors by their

very nature are specific to particular

hazardous waste rather than to generic

categories." (Comments of Dow

Chemical Co., October 1O, 1979, p. 10).

The Agency again disagrees. A class of

wastes may exhibit sufficient unformity

of hazard to warrant listing on a class

basis. (The Agency of course, must

demonstrate that sufficient uniformity

exists or is likely to exist). Furthermore,

the commenters' argument, taken to Its

logical conclusion, would mean that the

Agency could only list wastes on a

generator by generator basis, since

waste streams will vary to some degree

with respect to these factors depending

upon the precise composition of the

individual waste (although the degree of

difference ordinarily will not be of

regulatory significance). Yet Congress

clearly did not envision site-by-site

listing.

The Agency therefore intends to list

generically those wastes which

demonstrate a reasonable likelihood of

hazard as a class. The listing

descriptions will be sufficiently specific

to allow generators to determine if their

wastes are covered, and, as discussed

above, the listing of wastes will be

distinct from their identification by

means of hazardousness characteristies.

This approach, we believe, is fully in

accord with Congressional intent.

3. Changes in Proposed Waste Listing

Descriptions and Proposed Waste Lists,

Certain of the waste listing descriptions

proposed in December, 1978 have been

revised in the lists contained in

§ § 261.31 and 261.32. These changes

generally were made to clarify where in

the process wastes are generated so as

to enable generators to determine more

easily if their wastes are listed. Since

the coverage of these clarified listing

descriptions remains identical with the
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

proposal, the revised descriptions are

not being reproposed.

Certain other listed waste streams

arise out of waste generation processes

listed in the December proposal, but are

newly identified. These waste streams

are being proposed today, rather than

issued in interim final form.

Finally, some of the waste streams

initially proposed are not contained in

the present list of wastes. The Agency's

reasons for this action are discussed in

Section II A.

B. Section 261.33 [Discarded

Commercial Chemical Products, OffSpecification Species, Containers, and

Spill Residues Thereof)

The proposed regulation contained

three appendices listing a variety of

materials which the Agency proposed to

treat as hazardous waste if discarded.

Appendix I listed selected cancelled

pesticides or pesticides undergoing

RPAR (Rebuttable presumption against

registration) review within the Agency

that were not listed elsewhere in the

proposed regulation. Appendix IV listed

selected substances regulated by the

Department of Transportation (DOT)

and classified as Poison A, Poison B, or

ORM-A that were also not listed

elsewhere. Appendix V listed

substances which are being regulated as

toxic priority pollutants under the Clean

Water Act. In addition to the substances

themselves, the regulation proposed to

regulate (1) off-specification materials,

which if they had met specifications,

would have been shipped using the

names of the substances listed in these

appendices (2) containers, unless triple

rinsed, containing the materials listed in

the appendices, and (3) spill clean-up

residues and debris from spills of

materials listed in these appendices.

Subsequently, in a supplemental

proposed rule, EPA published another

appendix (Appendix XII) listing thirtythree chemicals found to be human

carcinogens or potential human

carcinogens by the International Agency

for Research on Cancer. 44 FR 49404

(August 22,1979). In the proposed

regulation, these materials were to be

subject to the general exemption level of

100 kg/mo. Quantities of these materials

below this level were not subject to full

Subtitle C iegulation.

In listing these materials in the

proposedTule, EPA intended to

encompass those chemical products

which possessed toxic or other

hazardous properties and which, for

various reasons, are sometimes thrown

away in pure or undiluted form. The

reasons for discarding these materials

might be that the materials did not meet

required specifications, that inventories

were being reduced, or that the product

line had changed. The regulation was

intended to designate chemicals

themselves as hazardous wastes, if

discarded, not to list all wastes which

might contain these chemical

constituents. In drawing up these lists.

the Agency drew heavily upon previous

work by EPA and other organizations

identifying substances of particular

concern.

On the basis of comments received

and also EPA's own re-examination of

the proposed rule, we have substantially

revised this regulation. In the final

regulations, commercial chemicals are

treated in two separate provisions. First,

substances listed in § 261.33() of the

regulations are considered hazardous

wastes if they or their off-specification

species are thrown away in their pure

form. These substances are regulated in

the same manner as other hazardous

wastes and are subject to the general

exclusion level in § 261.5 (a) and (b) for

the generation of small quantities of

hazardous waste. Second, a number of

the substances, which meet the criterion

for listing acutely hazardous wastes, are

separately listed in § 261.33(e). This

section applies to the chemical

substances if they or their offspecification species are thrown away

in their pure form, containers and inner

liners containing these materials, and

spill residue and debris created by spills

of these listed materials. Section 261.5(c)

establishes low quantity exclusion

levels for these acutely hazardous

materials.

1. Section 261.33(f) (Commercial

Chemical Products). A number of

commenters stated that, as proposed,

the materials listed in the various

appendices were not tied to any of the

criteria for listing, and, accordingly, the

reasons for their listing were unclear.

The Agency agrees that the basis for its

proposed listings was not adequately

specified. A table accompanying the

background document on commercial

chemical products sets forth the specific

basis for including each substance on

the list published today.

Commenters also expressed some

uncertainty as to whether the proposed

regulations made hazardous any waste

that contained the listed substance as a

constituent of the waste. The intent of

the regulation was to encompass only

those materials which were being

thrown away in their pure form or as an

off-specification species of the listed

material, as well as the contaminated

residues and debris from those

materials. The final regulation has been

redrafted to limit the application of this

section to the commercial chemical

product itself, its off-specification

species and derived spill residues and

debris.

Several commenters argued that the

wholesale incorporationi of lists

developed by EPA or other Federal

agencies for other regulatory purposes

was not appropriate. In the proposal,

EPA had, for example, listed all

materials that DOT lists as ORM-A

materials pursuant to its authority under

the Hazardous Materials Transportation

Act. A number of commenters argued

that these substances should not be

listed by EPA because DOT's basis for

listing used different criteria-the

potential for interfering with

transportation. DOT's standard is very

broad and somewhat vague; ORM-A

material is one that has "an anesthetic,

irritating, noxious, toxic or similar

property which can cause extreme

annoyance of discomfort to passengers

and are in the event of leakage during

transportation." 49 CFR 173.500(a)(1).

EPA agrees with these comments and,

rather than adopting lists of substances

on a wholesale basis, has evaluated

each against EPA's criteria for listing.

Included in § 261.33(f) are those

chemical substances which are toxic

and which meet the listing criteria set

forth in § 261.11 (a)(3). These hazardous

properties have been documented in

EPA rulemaking, studies and other

materials, including health effects

documents prepared in support of these

regulations materials supporting RPAR

actions background documents

supporting National Interim Primary

Drinking Water Standards, materials

produced by EPA's Cancer Assessment

Group and, in the case of

chlorofluorcarbons, documents

supporting regulations under TSCA.

This approach has led to certain

deletions from the lists of hazardous

wastes contained in the proposed rules.

A table accompanying the background'

document sets forth the disposition of all

295 chemicals originally listed in the

proposed rules. Eight substances have

been deleted from the list because they

did not meet any of the criteria for

listing hazardous wastes; sixteen were

deleted because the listing description

was not precise enough to enable

generators to determine whether

particular materials fell within that

description. Examples of these deletions

.are "medicines N.O.S." and "motor fuel

antiknock compound." In addition,

thirty-one substances are not presently

listed because EPA lacks data to assess

the propriety of listing them on the basis

of the listing. These substances are

presently under review by the Agency to

33115
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

determine whether they should be

included on the § 261.33(f) list.

This process has reduced the chemical

products listed, to those substances

which are demonstrated to pose a

substantial threat to human health or

the environment. These materials, their

off-specification variants, and

contaminated residues and debris from

the spills of these materials are subject

to full regulation under Subtitle C in the

same manner as other hazardous

wastes.

2. Section 261.33(e) (Commercial.

Chemical Products]. In considering the

hazards presented by commercial

chemical products, EPA recognized that

some substances in their pure formpossessed extremely hazardous

properties. To account for these

substances, EPA has established a new

criterion for listing which examines the

potentially lethal capacity of chemical

substances in very small quantities. The

basis for this criterion is explained in

section V.B. above.

Applying this criterion to the proposed lists of chemicals products has led the

Agency to list 122 substances in

§ 261.33(e). As with the substances

listed in § 261.33(f), the regulatory

language has been clarified to restrict

the application of this section to

chemical products, or their offspecification species, and not to wastes

which contain these materials as a

constituents. Because of their acutely

hazardous nature, however, containers

and inner liners which contained these

materials and spill cleanup debris and

residues resulting from spill of these

materials are also included. r

At the suggestion of commenters, EPA

also reviewed chemical substances on

the TSCA inventory list for inclusion on

the § 261.33(e) list. A number of those

substances do meet the acutely hazardous criterion and accordingly

have been added to the list. However,

because all interested persons have not

had an opportunity to comment on the

listing of these materials, the Agency is

promulgating them-in interim final

(together with the remainder of Subpart

D).

The final regulations establish

stringent quantity cutoff levels for

materials listed in § 261.33(e). Inthe

proposed regulation, all hazardous

wastes in quantities generated or

disposed of at rates greater than 100 kg/

mo were subject to full Subtitle C

regulation. Although the Agency

recognized that many, if not all, of the

proposed chemicals listed possessed

acutely hazardous characteristics, it did

not propose lesser limits for these

substances because, the general

exclusion level-less than 1/2 of a 55

gallon drum-appeared sufficient to

regulate most of the chemical products

that would be thrown away. For the

reasons discussed in section IV. E.,

above, the general exclusion level has

been raised to 1000 kg/mo. This higher

level undercuts the original rationale for

proposing a single exclusion level for all

hazardous wastes. Many commenters

urged that EPA employ a degree of

hazard system for determining exclusion

levels, for allocating Agency resources

and determining priorities, and for

establishing management standards.

Although EPA is unable to adopt a

degree of hazard system, we agree with

the commenters that considerations of

hazard are appropriate in establishing

quantity exclusion levels for those

substances which posses acutely

hazardous properties. The criterion used

in listing these substances ensures that

those materials that are listed in

§ 261.33(e) are those which are lethal in

very small quantities.

Accordingly, the Agency has adopted

very low exclusion levels for these

chemical products and their offspecification variants, containers and

inner liners which contained these

materials, and spill residues and debris.

The selection of these levels reflects the

judgment of the Agency that, although

even lesser quantities may be

hazardous, the levels selected, on the

basis of probable exposure scenarios,

are sufficient to minimize the threat to

human health and the environment

while enabling the Agency to implement

and enforce these regulations. The one

kilogram level for the chemicals will, in

the Agency's judgment, bring under full

regulation Virtually all of the substances

being thrown away. The quantity limit

for containers which have not been

triple rinsed (20 liters) represents the

Agency's judgmeni of probable exposure

and consequential injury from the use of

discarded containers. The Agency has

records of damage incidents resulting

from improperly disposed containers

that occurred when people salvaged

large containers for such uses as

garbage containers aid barbecue pits.

The levels chosen for inner liners and

spill residue and debris represent the

same type of judgment based on

probable exposure. A number of commenters suggested

that the-proposed rule regarding

containers be revised. The proposal had

included within its scope all containers

which had not been triple-rinsed. Some

commenters argued that there wereother effective ways of cleaning

containers and therefore the rule was

unduly restrictive. One commenter

pointed out, for example, that the EPA I

registered label for certain pesticides

requires different rinsing procedures

from thbse specified in the proposed,

rule. EPA agrees with these comments

and has revised the regulation to allow

other cleaning methods provided they

are equally effective.

The listing of-spill residues and debris

attracted several comments. One

commenter suggested that small

quantities of contaminated spill clean-up

be excluded. EPA has, in the final

regulation, excluded aggregate amounts

of less than 100 kilograms. Another

commenter felt that EPA should define

the term "spill debris" more precisely to

avoid including wrecked rail cars or

trucks. EPA has chosen not to exclude

such debris by definition. If

contaminated, these items pose a

substantial threat to human health and

the environment and should be handled

carefully. EPA presumes, however, that

in virtually all cases, heavy equipment

can be decontaminated and therefore

will not become part of the

contaminated debris.

C. Delisting

EPA's-proposed regulations contained

procedures allowing a person to show

that a listed waste generated by an

individual facility was not hazardous

beause of plant-specific variations in

raw materials, processes or other factors

(§ 250.15). These demonstrations of nonhazardousness were to be based on the

results of specific tests for each of the

hazardous properties for which the

waste was listed (§ 250.15(a)) and

submittel and processed in accordance

with procedures set forth in § 250.15(c)

through (h) of the proposed regulations.

Although virtually all commenters

supported the concept of a "delisting"

process in principle, most were

dissatisfied with the specifics of EPA's

proposal. Many criticized the delisting

standards as being too inflexible, too

vague, and based on tests which EPA

itself was unwilling to propose as

characteristics or use as listing criteria;

some specifically urged that other

factors-including how a waste was

managed at an individual facility-be

considered in determining whether a

waste should be delisted. Other

commenters objected to the procedures

themselves, urging EPA to provide trialtype hearings on delisting petitions,

extensive procedural safeguards and

multiple administrative appeals.

After re-examining its proposed

regulation and considering public

comments, EPA has concluded that its

.delisting procedures should be revised

and simplified in four major respects,

First, EPA has concluded that the

delisting of a waste from a particular

I I I I

33116
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

facility is really a modification of its

original listing determination and

therefore should take the form of a

regulatory amendment to the lists of

wastes in Subpart D. The informational

requirements for petitions to amend

Subpart D to exclude wastes from a

particular generating facility are set

forth in § § 260.20 and 260.22 of this

Chapter. EPA will follow the

Administrative Procedures Act's

informal rulemaking procedures in

acting on them (see § 260.20).

Some commenters argued that EPA's

delisting regulations should provide for

elaborate adjudicatory hearings with

administrative law judges. EPA thinks

such procedures would be unduly costly,

burdensome and time-consuming and

that the relevant issues can be

adequately aired and decided in

informal rulemaking procedures. EPA is

on firm legal ground in this regard, for

RCRA requires only informal rulemaking

here. The Supreme Court has recently

confirmed that an agency need not

provide more formal procedures than

are specifically required by statute

(Vermont Yankee v. NRDC, 435 U.S. 519,

524 (1978)).

The second major change which EPA

has made in its delisting procedures

pertains to the effect of filing a petition.

In its proposal, EPA stated that a

requested exclusion would take effect 90

days after submission, but that the

Administra.tor could revoke the

effectiveness at any time thereafter

simply by disapproving the

demonstration (§ 250.15(d)). In the

regulations promulgated today, no

exclusion will be deemed effective until

either fi) EPA has taken final action

under § 260.20(e), or (ii) EPA has granted

a temporary exclusion on the grounds of

substantial likelihood of success under

§ 260.22(m).

EPA has concluded that it would be

inappropriate to consider a delisting

petition effective until EPA has taken

some affirmative action in response.

Once a listing has been established

through rulemaking procedures it must

be presumed valid, and those seeking to

amend any portion of it should have the

burden ofiestablishing the correctness of

their position. The proposed provision

allowing a demonstration to become

effective without EPA action improperly

shifted the burden. At the same time,

new § 260.22(m) will benefit generators

because EPA will be able to grant

temporary exclusions in appropriate

cases before the rulemaking process is

complete.

The third major change which EPA

has made to its proposed delisting

regulations is to key the standards for

approving a delisting petition to the

criteria which EPA used to list the waste

in the first place. This approach not only

is consistent with EPA's decision to

treat delisting as a rulemaking, but also

is responsive to commenters' criticisms

that EPA's proposed delisting standards

were unrelated to its listing criteria.

Moreover, because the listing criteria

have been substantially clarified and

expanded (see section V.B.), it is also

responsive to objections that those

standards were vague, inflexible and

failed to consider the multiple factors

which might cause a waste to be

hazardous.

Two points concerning the standards

for granting a delisting petition are

deserving of special comment. First. the

fact that a waste is properly managed

by an individual facility is not grounds

for delisting it, any more than the fact

that a waste is generally properly

managed by industry is grounds for not

listing it (see section VII.A.). Second, in

the case of a waste which has been

listed for acute toxicity, a generator will

be required to show not only that the

waste does not meet EPA's acute

toxicity criterion but also that it does

not meet its general toxicity criterion.

Although an off-specification acutely

toxic waste or a mixture containing an

acutely toxic waste may no longer be

deadly, it piay still continue to pose a

substantial hazard to human health and

the environment.

The final major revision which EPA

has made in its proposed regulations

relates to the effect of successful

delisting petition. Under the regulations

published today, a decision to exclude a

waste from the hazardous waste lists in

Subpart D is not a decision that the

waste is not hazardous. It simply

relegates the waste to the same general

category as any other unlisted wastei.e., if the waste exhibits one of the

characteristics, it must be regulated as

hazardous waste. This approach is

necessitated by the fact that wastes

from individual facilities may exhibit

characteristics not exhibited by waste in

general and that, in deciding to list a

waste, EPA has not tested it against

every one of the characteristics.

VIII. Environmental, Economic and

Regulatory Impacts

In accordance with Executive Order

11821, as amended by Executive Order

11949, and Executive Order 12044, EPA

'has prepared an Environmental Impact

Analysis and a Regulatory Analysis of

all of its Section 3001 through 3004

regulations. The Agency has also

voluntarily prepared an Environmental

Impact Statement for these regulations

under the National Environmental Policy

Act, 42 U.S.C. 4321 et seq.

Copies of these documents, and EPA's

Reports Impact Analysis and Operations

Resources Impact Analysis for Sections

3001 through 3004, may be reviewed in

all EPA Regional Office Libraries, and at

the EPA headquarters library, Room

2404, 401 M Street, S.W., Washington,

D.C. 20460.

Appendix A-Scheduled June

Promulgation

Generics

1. Paint residues generated from

industrial painting

2. Wastewater treatment sludges from

industrial painting [Comment: The

above two listing descriptions have

been changed from those originally

proposed on December 18,1978 (43 FR

58957) as: Paint wastes (such as used

rags, slops latex sludge, spent

solvent); Water-based paint waste;

and Waste paint and varnish remover

or stripper.]

Process Wastes

1. Woven fabric dying and finishing

wastewater treatment sludges

2. Mercury bearing sludges from brine

treatment and mercury bearing brine

purification muds from the mercury

cell process in chlorine production

[Comment: This listing description

includes two wastes which were

originally proposed on December 18,

1978 (43 FR 58958) as: Mercury bearing

sludges from brine purification muds.

from mercury cell process in chlorine

production and mercury bearing brine

purification muds from mercury cell

process in chlorine production.]

3. Wastewater treatment sludge from the

diaphragm cell process using graphite

anodes in the production of chlorine

[Comment: This listing description

was originally proposed on December

18,1978 (43 FR 58958) as: Wastewater

treatment sludge from diaphragm cell

process in production of chlorine.]

4. Chlorinated hydrocarbon bearing

wastes from the diaphragm cell

process using graphite anodes in

chlorine production [Comment: This

listing description was originally

proposed on December 18,1978 (43 FR

58958] as: Chlorinated hydrocarbon

wastes from diaphragm cell process in

chlorine production.]

5. Wastewater treatment sludges from

the production of Tit= pigment using

chromium bearing ores by the chloride

process [Comment: This listing

description was originally proposed

on December 18,1978 (43 FR 58958) as:

Chromium bearing wastewater

treatment sludges from the production

of Tio2 pigment by the chloride

process.]

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6. Wastewater treatment sludges from

the production of Tio2 pigment using

chromium bearing ores by the sulfate

process [Comment: This listing

description was originally proposed

on December 18, 1978 (43 FR 58958 as: Chromium bearing wastewater

treatment sludges from the production

of TiO2 pigment by the sulfate

process.]

7. Arsenic bearing sludges from the

purification process in the production

of antimony oxide

8. Antimony bearing wastewater

treatment sludge from the production

of antimony oxide

9. Solvent cleaning wastes from paint

manufacturing

10. Water cleaning wastes from paint

manufacturing

11. Caustic cleaning vxastes from paint

manufacturing

12. Wastewater treatment sludges from

paint manufacturing

13. Air pollution control sludges from

paint manufacturing [Comment: The

above five listing descriptions have

been changed from those originally

proposed on December 18, 1978 (43 FR

58958) as: Wastewater treatment

sludges from paint production and Air

pollution control sludges from paint

production.]

14. Still bottoms from aniline production

15. Sludges, wastes from tub washers

(Ink Formulation)

16. Coking: Decanter tank tar/pitch/

sludge [Comment: This listing

description include's two wastes

which were originally proposed on

December 18, 1978 (43 FR 58959) as:

Coking: Decanter tank tar and Coking:

Decanter tank pitch sludge.]

17: Spend potliners (cathodes) from

primary aluminum'production

18. Lead bearing wastewater treatment,-

sludges from gray iron foundries

19. Arsenic or organo-arsenic containing

wastewater treatment sludges from

the production of veterinary

pharmaceuticals'

20. Distillation residue from the

separation of chlorobenzenes in the

production of chlorobenzenes

[Comment: This listing description

was originally proposed on December

18, 1978 (43 FR 58958) as: Distillation

residues from fractionating tower for

recovery of benzene and

chlorobenzenes.]

21. Emission control dust/sludge from

ferrochromium-silicon production

[Comment: This listing description

was originally proposed on December

18, 1978 (43 FR 58959) as:

Ferrochromesilicon furriace emission

control dust or sludge.]

22. Emission control dust/sludge from -

ferrochrome production [Comment:

This listing description was originally

proposed on December 18,1978 (43 FR

58959) as: Ferrochrome emissions

control: furnace baghouse dust, and

ESP dust.]

23. Emission control dust/sludge from

ferromanganese production ,

[Comment: This listing description

was originally proposed on December

18, 1978(43 FR 58959) as:

Ferromanganese emission control:

baghouse dusts and scrub water

solids.]

Appendix B*--Scheduled Fall

Promulgation

Generic

1. Reactor clean-up wastes from the

chlorination, dehydrochlorination, or

oxychlorination of aliphatic

hydrocarbons

2. Fractionation bottoms from the "separation of chlorination

hydrocarbons

3. Distillation bottoms from the

separation of chlorinated aliphatic

hydrocarbons

4. Washer wastes from the production of

chlorinated aliphatic hydrocarbons

5. Spent catalyst from the production of

chlorinated aliphatic hydrocarbons

6. Reactor clean-up wastes from the

chlorination of cyclic aliphatic

hydrocarbons

7. Fractionation bottoms from the.

separation of chlorinated cyclic

aliphatic hydrocarbons

8. Distillation bottoms from the

separation of chlorinated cyclic

aliphatic hydrocarbons

9. Washer wastes from the production of

chlorinated cyclic aliphatic

hydrocarbons

10. Spent catalyst from the production of

chlorinated cyclic aliphatic

hydrocarbons

11. Batch residues from the batch

production of chlorinated polymers

12. Solution residues from the

production of chlorinated polymers

13. Reactor clean-up wastes from the

chlorination of aromatic hydrocarbons

14. Fractionation bottoms from the

separation of chlorinated aromatic

hydrocarbons

15. Distillation bottoms from the

separation of chlorinated aromatic

hydrocarbons

16. Washer wastes from the production

of chlorinated aromatic hydrocarbons

17. Waste Oil [Comment: This listingdescription was originally proposed

on December 18, 1978 (43 FR 58957) as: Waste lubricating oil and Waste

hydraulic or cutting oil.]

*Since these wastes will not be promulgated until

the fall, the listing descriptions for some of these

wastes may change as additional information is

gathered.

18. Polychlorinated biphenyls (PCB) and

PCB items as defined in 40 CFR Part

761 [Comment: The Agency indicated

in the preamble to the Section 3004

regulations (43 FR 58993), their

intention to integrate the TSCA

regulations for the disposal of PCB's

with the RCRA hazardous waste

regulations.]

Process Wastes

1. Sub-ore from underground and

surface mining of uranium,

overburden from surface mining of

uranium and waste rock from

underground mining of uranium with a

radium-226 activity in excess of 5pCi/

gin [Comment: This listing description

was originally proposed on December

18, 1978 (43 FR 58958) as: Waste rock

and overburden from uranium

mining.]

2. Leach zone overburden and discarded

phosphate ore from phosphate surface

mining and slimes from phosphate ore

beneficiation [Comment: This listing description was originally proposed

on December 18, 1978 (43 FR 58958) as:

Overburden and slimes from

phosphate surface mining.]

3. Waste gypsum from processing

phosphate ore to produce phosphoric

acid [Comment: This listing

description was originally proposed

on December 18, 1978 (43 FR 58958) as:

Waste gypsum from phosphoric acid

production.]

-4. Slag and fluid bed prills from

processing phosphate ore to produce

,elemental phosphorous [Comment:

This listing description was originally

proposed on December 18, 1978 (43 FR

58958) as: Slag and fluid bed prills

from elemental phosphorous

production.]

5. Washwater/sludges from ink printing

equipment clean-up [Comment: This

listing description includes three

wastes which were originally

proposed on August 22,1979 (44 FR

49403 and 49404) as: Waste from

equipment cleaning from flexoprinting

in the manufacture of paperboard

boxes; Waste from press clean-up in

newspaper printing and Wash water

from printing ink equipment cleaning,] 6. Wastes from photographic processing

[Comment: This listing was originally

proposed on August 22, 1979 (44 FR

49404) as: Waste Ferricyanide bleach,

dichromate bleach, color developer

(Agfa), bleach fix (Agfa) and acid

solution from photographic

processing.]

7. Lead acid storage battery production

wastewater treatment sludges

8. Lead acid storage battery production

clean-up wastes from cathode and

anode paste production

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9. Nickel cadmium battery production

wastewater treatment sludges

10. Lead slag from lead alkyl production

11. Emission control dust/sludge from

reverberatory furnace and converters

from primary copper production

[Comment: This listing description

was included in the listing description

originally proposed on December 18,

1978 (43 FR 58959) as: Primary copper smelting and refining electric furnace

slag, converter dust, acid plant sludge

and reverberatory dust.]

Dated: May 2, 1980.

Douglas M. Costle,

Administrator.

Title 40 of the Code of Federal

Regulations is amended by adding the

following new Part 261:

PART 261-IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

Subpart A-General

Sec.

261.1 Purpose and scope.

261.2 Definition of solid waste.

261.3 Definition of hazardous waste.

261.4 Exclusions.

261.5 Special requirements for hazardous

waste produced by small quantity

generators.

261.6 Special requirements for hazardous

waste which is used, re-used, recycled or reclaimed.

Subpart B-Criteria for Identifying the

Characteristics of Hazardous Waste and for

Usting Hazardous Wastes

261.10 Criteria for identifying the

characteristics of hazardous wastes.

261.11 Criteria for listing hazardous waste.

Subpart C-Characteristics of Hazardous

Waste

261.20 General.

261.21 Characteristic of ignitability.

261.22 Characteristic of corrosivity.

261.23 Characteristic of reactivity.

261.24 Characteristic of EP toxicity.

Subpart D-Usts of Hazardous Wastes

261.30 General.

261.31 Hazardous wastes from non-specific

sources. 261.32 Hazardous wastes from specific

sources. 261.33 Discarded commercial chemical

products and associated off-specification

materials, containers and spill residues.

Appendices

Appendix I-Representative Sampling

Methods

Appendix II-EP Toxicity Test Procedures

Appendix II-Chemical Analysis Test

Methods

Appendix IV-[Reserved for Radioactive

Waste Test Methods]

Appendix V-[Reserved for Infectious Waste

Treatment Specifications]

Appendix VI-[Reserved for Etiologic

Agents]

Appendix VII-Basis for Listing

Appendix VIII-Hazardous Constituents

Authority: Secs. 1006,2002(a), 3001. and

3002 of the Solid Waste Disposal Act. as amended by the Resource Conservation and

Recovery Act of 1976, as amended (42 U.S.C.

6905, 6912, 6921 and 6922).

Subpart A-General

§261.1 Purpose and scope.

(a) This Part identifies those solid

wastes which are subject to regulation

as hazardous wastes under Parts 262

through 265 and Parts 122 through 124 of

this Chapter and which are subject to

the notification requirements of Section

3010 of RCRA. In this Part-

(1) Subpart A defines the terms "solid

waste" and "hazardous waste,"

identifies those wastes which are

excluded from regulation under Parts

262 through 265 and 122 through 124 and

establishes special management

requirements for hazardous waste

produced by small quantity generators

and hazardous waste which is used, reused, recycled or reclaimed.

(2) Subpart B sets forth the criteria

used by EPA to identify characteristics

of hazardous waste and to list particular

hazardous wastes.

(3] Subpart C identifies characteristics

of hazardous waste.

(4) Subpart D lists particular

hazardous wastes.

(b) This Part identifies only some of

the materials which are hazardous

wastes under Sections 3007 and 7003 of

RCRA. A material which is not a

hazardous waste identified in this part

is still a hazardous waste for purposes

of those sections if:

(1) In the case of Section 3007, EPA

has reason to believe that the material

may be a hazardous waste within the

meaning of Section 1004(5) of RCRA.

(2) In the case of Section 7003, the

statutory elements are established.

§ 261.2 Definition of solid waste.

(a) A solid waste is any garbage,

refuse, sludge or any other waste

material which is not excluded under

§ 261.4(a).

(b) An "other waste material" is any

solid, liquid, semi-solid or contained

gaseous material, resulting from

industrial, commercial, mining or

agricultural operations, or from

community activities which:

(1) Is discarded or is being

accumulated, stored or physically,

chemically or biologically treated prior

to being discarded; or

(2) Has served its original intended

use and sometimes is discarded: or

(3) Is a manufacuring or mining byproduct and sometimes is discarded.

(c) A material is "discarded" if it is

abandoned (and not used. re-used,

reclaimed or recycled) by being:

(1] Disposed of; or

(2) Burned or incinerated. except

where the material is being burned as a

fuel for the purpose of recovering usable

energy, or

(3) Physically. chemically, or

biologically treated (other than burned

or incinerated) in lieu of or prior to being

disposed of.

(d) A material is "disposed of" if it is

discharged. deposited. injected, dumped,

spilled, leaked or placed into or on any

land or water so that such material or

any constituent thereof may enter the

environment or be emitted into the air or

discharged into ground or surface

waters.

(e) A "manufacturing or mining byproduct" is a material that is not one of

the primary products of a particular

manufacturing or mining operation, is a

secondary and incidental product of the

particular operation and would not be

solely and separately manufactured or

mined by the particular manufacturing

or mining operation. The term does not

include an intermediate manufacturing

or mining product which results from

one of the steps in a manufacturing or

mining process and is typically

processed through the next step of the

process within a short time.

§ 261.3 Definition of hazardous waste.

(a) A solid waste, as defined in

§ 261.2, is a hazardous waste ifi

(1) It is not excluded from regulation

as a hazardous waste under § 261.4(b);

and

(2) It meets any of the following

criteria:

(i) It is listed in Subpart D and has not

been excluded from the lists in Subpart

D under §§ 260.20 and 260.22 of this

Chapter.

(ii) It is a mixture of solid waste and

one or more hazardous wastes listed in

Subpart D and has not been excluded

from this paragraph under §§ 260.20 and

260.22 of this Chapter.

(iii) It exhibits any of the

characteristics of hazardous waste

identified in Subpart C.

(b) A solid waste which is not

excluded from regulation under

paragraph (a)(1) of this section becomes

a hazardous waste when any of the

following events occur.

(1) In the case of a waste listed in

Subpart D, when the waste first meets

the listing description set forth'in

Subpart D.

(2) In the case of a mixture of solid

waste and one or more listed hazardous

wastes, when a hazardous waste listed

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in Subpart D is first added to the solid

waste.

(3) In the case of any other waste

(including a waste mixture), when the

waste exhibits any of the characteristics

identified in Subpart C.

(c) Unless and until it meets the

criteria of baragraph (d):

(1) A hazardous waste will remain a

hazardous waste.

(2) Any dolid waste.generited from

the treatment, storage or disposal of a

hazardous waste, including any sludge,

spill residue, ash, emission control dust

or leachate (but not including

precipitation run-off), is a hazardous

waste.

(d) Any solid waste described in

paragraph (c) of this section is not a

hazardous waste if it meets the'

following criteria:

(1) In thel case of any solid waste, it

does not exhibit any of the . characteristics of hazardous waste

identified io Subpart C.

(2) In the case of a waste which is a

listed waste under Subpart D, contains a

waste listed under Subpart D or is

derived from a waste listed in.Subpart

D, it also, has been excluded from

paragraph (c) under § § 260.20 and 260.22

of this Chapter.

§ 261.4 Exclusions.

* (a) Mateials which are not solid

wastes. The following materials are not

solid wastes for the purpose of this Part:

(1) (i) Donestic sewage; and

(ii) Any iixture of domestic sewage

and other Wastes that passes t hrough a

sewer systdm to a publicly-owned

treatment works for treatment.

"Domestic sewage" means untreated

sanitary wastes that pass through a

sewer system. (2) Industrial wastewater discharges

that are point source discharges subject

to regulatioh under Section 402 of the

Clean Watdr Act, as amended.

[Comment: This exclusion applies only

to the actual point source discharge. It

does not exclude industrial wastewaters

while they are being collected, stored or

treated befdre discharge, nor does it

exclude slu ges that are generated by

industrial i, astewater treatment.)

(3) Irrigation return flows.

(4) Source, special nuclear or byproduct material as defined by the

Atomic Energy Act of 1954, as amended,

42 U.S.C. 2011 et seq.

(5) Materials subjected to in-situ

mining techniques which are not

removed fr6m the ground as part of the

extraction process.

(b) Solid wastes which are not

hazardous wastes. The following solid

wastes are rot hazardous wastes:

(1) 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.)

(2) Solid wastes generated by any of

the following and which are returned to

the soils as fertilizers:

(i) The growing and harvesting of

agricultural crops.

(ii) The raising of animals, including

animal manures.

(3) Mining overburden returned to the

mine site.

(4) 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.

(5) Drilling fluids, produced waters,

and other wastes associated with the

exploration, development, or production

of crude oil, natural gas or geothermal

energy.

§ 261.5 Special requirements for

hazardous waste generated by small

quantity generators.

(a) Except as otherwise provided in

this section, if a person generates, in a

calendar month, a total of less than 1000

kilograms of hazardous wastes, those

wastes are not subject to regulation

under Parts 262 through 265 and Parts

122 through 124 of this Chapter, and the

notification requirements of Section 3010

of RCRA.

(b) If a person whose waste has been

excluded from regulation under

paragraph (a) of thisSection

accumulates hazardous wastes in

quantities greater than 1000 kilograms,

those accumulated wastes are subject to

regulation under Parts'262 through 265

and Parts 122 through 124 of this

Chapter, and the notification

requirements of Section 3010 of RCRA.

(c) If a person generates in a calendar

month or accumulates at any time any of

'the following hazardous wastes in

quantities greater than set forth below,

those wastes are subject to regulation

under Parts 262 through 265 and Parts

122 through 124 of this Chapter, and the

notification requirements of Section 3010

of RCRA:

(1) One kilogram of any commercial

product'or manufacturing, chemical

intermediate having the generic name

listed in § 261.33(e).

(2) One kilogram of any offspecification commercial chemical

product or manufacturing chemical

intermediate which, if it met -

specifications, would have the generic

name listed in § 261,33(e).

(3) Any containers identified In

§ 261.33(c) that are larger than 20 liters

in capacity;

(4) 10 kilograms of inner liners from

containersidentified under § 261.33(c):

(5) 100 kilograms of any residue or

contaminated soil, water or other debris

resulting from the cleanup of a spill, Into

or on any land or water, of any

commercial chemical product or

manufacturing chemical intermediate

having the generic name listed in

§ 261.33(e).

(d) In order for hazardous waste to be

excluded from regulation under this

section, the generator must comply with

§ 262.11 of this Chapter. He must also

either treat or dispose of the waste In an

on-site facility, or ensure delivery to an

off-site treatment, storage or disposal

facility, either of which is:

(1) Permitted by EPA under Part 122 of

this Chapter, or by a State with a

hazardous waste management program

authorized under Part 123 of this

Chapter;

(2) In interim status under Parts 122

and 265 of this .Chapter; or,

( (3) Permitted, licensed, or registered

by a State to manage municipal or

industrial solid waste.

(e) Hazardous waste subject to the

reduced requirements of this section

may be mixed with non-hazardous

waste and remain subject to these

reduced requirements even though the

resultant mixture exceeds the quantity

limitations identified in this section,

unless the mixture meets any of the

characteristics of hazardous waste

identified in Subpart C.

§ 261.6 Special requirements for

hazardous waste which Is used, re-used, recycled or reclaimed.

(a) Except as otherwise provided In

paragraph (b) of this section, a

hazardous waste which meets either of

the following criteria is not subject to

regulation under Parts 262 through 265

or Parts 122 through 124 of this Chapter

and is not subject to the notification

requirements of Section 3010 of RCRA

until such time as the Administrator

promulgates regulations to the contrary: (1) It is being beneficially used or reused or legitimately recycled or

reclaimed.

(2) It is being accumulated, stored or

physically, chemically or biologically

treated prior to beneficial use or re-use

or legitimate recycling or reclamation,

(b) A hazardous waste which is a

sludge, or which is listed in Subpart D,

or which contains one or more

hazardous wastes listed in Subpart D;

and which is transported or stored prior

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to being used, re-used, recycled or

reclaimed is subject to the following

requirements with respect to such

transportation or storage:

(1) Notification requirements under

Section 3010 RCRA.

(2) Part 26Z of this Chapter.

(3) Part 263 of this Chapter.

(4) Subparts A, B, C, D and E of Part

264 of this Chapter.

(5) Subparts A, B, C, D, E, G, H, I, J

and L of Part 265 of this Chapter.

(6) Parts 122 and 124 of this Chapter,

with respect to storage facilities.

Subpart B-Criteria for Identifying the

Characteristics of Hazardous Waste

and for Usting Hazardous Waste

§ 261.10 Criteria for Identifying the

characteristics of hazardous waste.

(a) The Administrator shall identify

and define a characteristic of hazardous

waste in Subpart C only upon

determining that:

(1) A solid waste that exhibits the

characteristic may:

(i) Cause, or significantly contribute

to, an increase in mortality or an

increase in serious irreversible, or

incapacitating reversible, illness; or

(ii) Pose a substantial present or

potential hazard to human health or the

environment when it is improperly

treated, stored, transported, disposed of

or otherwise managed; and

(2) The characteristic can be:

fi) Measured by an available

standardized test method which is

reasonably within the capability of

generators of solid waste or private

sector laboratories that are available to

serve generators of solid waste; or

(ii) Reasonably detected by generators

of solid waste through their knowledge

of their waste.

§ 261.11 Criteria for listing hazardous

waste.

(a) The Administrator shall list a solid

waste as a hazardous waste only upon

determining that the solid waste meets

one of the following criteria:

(1) It exhibits any of the

characteristics of hazardous waste

identified in Subpart C.

(2) It has been found to be fatal to

humans in low doses or, in the absence

of data on human toxicity, it has been

shown in studies to have an oral LD 50

toxicity (rat) of less than 50 milligrams

per kilogram, an inhalation LC 50

toxicity (rat) of less than 2 milligrams

per liter, or a dermal LD 50 toxicity

(rabbit) of less than 200 milligrams per

kilogram or is otherwise capable of

causing or significantly contributing to

an increase in serious irreversible, or

incapacitating reversible, illness. (Waste

listed in accordance with these criteria

will be designated Acute Hazardous

Waste.)

(3) It contains any of the toxic

constituents listed in Appendix VIII

unless, after considering any of the

following factors, the Administrator

concludes that the waste is not capable

of posing a substantial present or

potential hazard to human health or the

environment when improperly treated,

stored, transported or disposed of, or

otherwise managed:

(i) The nature of the toxicity presented

by the constituent.

(ii) The concentration of the

constituent in the waste.

(iii) The potential of the constituent or

any toxic degradation product of the

constituent to migrate from the waste

into the environment under the types of

improper management considered in

paragraph (a)(3)(vii) of this section.

(iv) The persistence of the constituent

or any toxic degradation product of the

constituent.

(v] The potential for the constituent or

any toxic degradation product of the

constituent to degrade into non-harmful

constituents and the rate of degradation.

(vi) The degree to which the

constituent or any degradation product

of the constituent bioaccumulates in

ecosystems.

(vii) The plausible types of improper

management to which the waste could

be subjected.

(viii) The quantities of the waste

generated at individual generation sites

or on a regional or national basis.

(ix) The nature and severity of the

human health and environmental

damage that has occurred as a result of

the improper management of wastes

containing the constituent.

(x) Action taken by other

governmental agencies or regulatory

programs based on the health or

environmental hazard posed by the

waste or waste constituent.

(xi) Such other factors as may be

appropriate.

Substances will be listed on Appendix

VIII only if they have been shown in

scientific studies to have toxic,

carcinogenic, mutagenic or teratogenic

effects on humans or other life forms.

(Wastes listed in accordance with

these criteria will be designated Toxic

wastes.)

(b) The Administrator may list classes

or types of solid waste as hazardous

waste if he has reason to believe that

individual wastes, within the class or

type of waste, typically or frequently are

hazardous under the definition of

hazardous waste found in Section

1004(5) of the Act.

(c) The Administrator will use the

criteria for listing specified in this

section to establish the exclusion limits

referred to in § 261.5(c).

Subpart C-Characteristics of

Hazardous Waste

§261.20 GeneraL

(a) A solid waste, as defined in

§ 261.2, which is not excluded from

regulation as a hazardous waste under

§ 261.4(b), is a hazardous waste if it

exhibits any of the characteristics

identified in this SubparL

[Comment- § 262.11 of this Chapter sets

forth the generator's responsibility to

determine whether his waste exhibits

one or more of the characteristics

identified in this Subpart]

(b) A hazardous waste which is

identified by a characteristic in this

subpart. but is not listed as a hazardous

waste in Subpart D, is assigned the EPA

Hazardous Waste Number set forth in

the respective characteristic in this

Subpart. This number must be used in

complying with the notification

requirements of Section 3010 of the Act

and certain recordkeeping and reporting

requirements under Parts 262 through

265 and Part 122 of this Chapter.

(c) For purposes of this Subpart, the

Administrator will consider a sample

obtained using any of the applicable

sampling methods specified in Appendix

I to be a representative sample within

the meaning of Part 260 of this Chapter.

[Comment: Since the Appendix I

sampling methods are not being formally

adopted by the Administrator, a person

who desires to employ an alternative

sampling method is not required to

demonstrate the equivalency of his

method under the procedures set forth in

§§ 260.20 and 260.21.]

§ 261.21 Characteristic of Ignltabilty.

(a) A solid waste exhibits the

characteristic of ignitability if a

representative sample of the waste has

any of the following properties:

(1) It is a liquid, other than an aqueous

solution containing less than 24 percent

alcohol by volume, and has a flash point

less than 60'C (140"F), as determined by

a Pensky-Martens Closed Cup Tester,

using the test method specified in ASTM

Standard D-93-79, or a Setaflash Closed

Cup Tester, using the test method

specified in ASTM standard D-3278-78,

or as determined by an equivalent test

method approved by the Administrator

under the procedures set forth in

§§ 260.20 and 260.21.1

'ASTM Standards are available from ASrM,

1915 Race Street. Philadelphia. PA 19103.

33121
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

(2) It is not a liquid and is capable,

under standard temperature and

pressure, of causing fire through friction,

absorption of moisture or spontaneous

chemical changes and, when ignited,

burns so vigorously and persistently that

is creates a hazard.

(3) It is an ignitable compressed gas as

defined in 49 CFR 173.300 and as

determined by the test methods

described in that regulation or

equivalent test methods approved by the

Administrator under §§ 260.20 and - 260.21.

(4) It is an oxidizer as defined in 49

CFR 173.151.

(b) A solid waste that exhibits the

characteristic of ignitability, but is not

listed as a hazardous waste in Subpart

D, has the EPA Hazardous Waste

Number of D001.

§ 261.22 Characteristic of corrosivity.

(a) A solid waste exhibits the

characteristic of corrosivity if a

representative sample of the waste has

either of the following properties:

(1) It is aqueous.and has a pH less -

than or equal to 2 or greater than or

equal to 12.5, as determined by a pH

meter using either the test method . specified in the "Test Methods for the

Evaluation of Solid Waste, Physical/

Chemical Methods" 2 (also described in

"Methods for Analysis of Water and

Wastes" EPA 600/4-79-020, March

1979), or an equivalent test method

approved by the Administrator under

the procedures set forth in § § 260.20 and

260.21.

(2) It is a liquid and corrodes steel-

(SAE 1020) at a rate greater than 6.35

mn (0.250 inch) per year at a test

temperature of 55*C (130F) as

determined by the test method specified

in NACE (National Association of

Corrosion Engineers) Standard TM-01-

69 3 as, standardizedin "Test Methods

for the Evaluation of Solid Waste,

Physical/Chemical Methods," or an

equivalent test method approved by the

Administrator under the procedures set

forth in § § 260.20 and 260.21.

(b) A solid waste that exhibits the

characteristic of corrosivity, but is not

listed as a hazardous waste in Subpart

D, has the EPA Hazardous Waste

Number of D002.

2This document is available from Solid Waste

Information, U.S. Environmental Protection Agency.

26 W. St. Clair Street, Cincinnati, Ohio 45268.

'The NACE Standard is available from the

National Association of Corrosion Engineers, P.O.

Box 986, Katy, Texas 77450.

§ 261.23 Characteristic of reactivity.

(a) A solid waste exhibits the

characteristic of reactivity if a

representative sample of the waste has

any of the following properties:

(1) It is normally unstable and readily

undergoes violent change without

detonating.

(2) It reacts violently with water.

(3) It forms potentially explosive

mixtures with -water.

(4) When mixed with water, it

generates toxic gases, vapors or fumes

in a quantity sufficient to present a

danger to human health or the

environment.

(5) It is a cyanide or sulfide bearing

waste which, when exposad to pH

conditions between 2 and 12.5, can

generate toxic gases, vapors or fumes in - a quantity sufficient to present a danger

to humari health or the environment.

(6) It is capable of detonation or

explosive reaction if it is subjected to a

strong initiating source or if heated

under confinement.

(7) It is readily capable of detonation

or explosive decomposition or reaction

at standard temperature and pressure.

(8) It is a forbidden explosive as

defined in 49 CFR 173.51, or a Class A

explosive as defined in 49 CFR 173.53 or

a Class B explosive as defined in 49 CFR

173.88.

(b) A solid waste that exhibits the

characteristic of reactivity, but is not

listed as a hazardous waste in Subpart

D, has the EPA Hazardous Waste

Number of D003.

§ 261.24 Characteristic of EP Toxicity.

(a) A solid waste exhibits the

characteristic of EP toxicity if, using the

test methods described in Appendix II

or equivalent methods approved by the

Administrator under the procedures set

forth in § § 260.20 and 260.21, the extract

from a representative sample of the

waste contains any of the contaminants

listed in Table I at a concentration equal

to or greater than the respective value

given in that Table. Where the waste

contains less than 0.5 percent filterable

solids, the waste itself, after filtering, is

considered to be the extract for the

purposes of this section.

(b) A solid waste that exhibits the

characteristic of EP toxicity, but is not

listed as a hazardous waste in Subpart

D, has the EPA Hazardous Waste

Number specified in Table I which

corresponds to the toxic contaminant

causing-it to be hazardous.

Table I.-Maximurn Concentration of

Contaminants for Charactoristic of EP ToxicityContinued

EPA Maximum

hazardous Contaminant concentration waste (milligrams

number pot liet)

D004 ................ Arsenic ...................................... 5.0

D00 5 ................ Barium ....................................... 100.0

006 ........... Cadmium .......................... 1.0

D007 ................ Chromium ................................. 5.0

D008 ..... Lead..................... . . 5.0

D009 ................ Mercury ..................................... 0.2 D010 ................ Selenium ................................... 1.0

DO1 1............. .. Silver .................. 5.0

D012 ................ Endrin (1,2,3.4,10,.0- 0.02

hexachloro.1,7-opoxy. 1,4,4a,5,,7,8,Baoctahydro-l,4,endo, endo.

5,8-dimethano naphthalene.

D013 ........... Undane (1.2,3.4,5,6- 0.4

hexachlorocycohexane,

gamma isomer.

0014 ............ Methoxychor (1,1,1. 10.0

Tdchloro.2,2-bis [p

methoxyphenyl]ethano)

D015 ............. Toxaphene (C,.H,.CI, 0.5

Technical chlorinated

camphene. 67-69 percent

chlorine).

D016 ............... 2,4.D, (2.4- 10.0

Dich'orophenoxyacetlc

acid). D017....-..... 24,5-TP Silvex (2.4,5. 1.0

Tdchlorophenoxyproplonlc

acid).

Subpart D-Lists of Hazardous Wastes

§ 261.30 General.

(a) A solid waste is a hazardous

waste if it is listed in this Subpart,

unless it has been excluded from this list

under § § 260.20 and 260.22.

(b) The Administrator will indicate his

basis for listing the classes or types of

wastes listed in this Subpart by

employing one or more of the following

Hazard Codes:

Ignitable W aste ................................................... (I) Corrosive Waste .. ......... (C)

Reactive Waste ......................... ... 1 EP Toxic Waste ............. . . .... ) Acute Hazardous Waste ................................................... (H)

Toxic Waste ............. . . . . ..... ()

Appendix VII identifies the constituent

which caused the Administrator to list

the waste as an EP Toxic Waste (E) or

ToxicWaste (T) in § § 261,31 and 261.32,

(c) Each hazardous waste listed in this

Subpart is assigned an EPA Hazardous

Waste Number which precedes the

name of the waste. This number must be

used in complying with the notification

requirements of Section 3010. of the Act

and certain recordkeeping and reporting

requirements under Parts 262 through

265 and Part 122 of this Chapter.

(d) Certain of the hazardous wastes

listed in § 261.31 or § 261.32 have

exclusion limits that refer to

§ 261.5(c)(5).

II I I I

33122
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33123

§ 261.31 Hazardous waste from nonspecific sources.

Industry and EPA Hazardous Vste Hazard code

hazardous waste No.

Generic:

FOO..."h spent halogenated solents used in degreaing. ten b ortI*m. rmet4m chlkde. 1.1.k r carbon ()

tetnchioride. and the chbrinated fluaonrbons arid sludges from the recovery of two s0ovnts In degreasing operation F002 The spent halogenated solvents. tetr e n mret4en chlore 1.1.1.ktchloros e. corobarzone. 1,12- (T)

trichworo-1,2,24rifluoroethane, o- dorobenzene, and to 9 bottom ronth ie recovery of tese solvent.

F003 The spent non-haogenated solvents xylere, aetone. e" acette eth4 bonene. elh er n bW &AcoL coteanone, and te st (T)

bottoms from the recovery o these solvents.

F004 The spent non-helogenated sovents cresols and cresy acd. ritrobenzene. ard the stl bottoms from tie recovery of thase s . .__. (T)

FOS The spent non-halogenated solvent methanok Woln metA a" ke oe rnh)4 atobuty! klom. carbon de de. ls r pyridrn U.T)

and the sta bottoms from the recovery of ths solvent&

F006 Wastewater treatment sludges from electroplating opera.in ..

F007.. Spent plating bath solutions from electroplating operations ( ")

F006 Plating bath sludges from the bottom of plaftng bathe from electropting operations (...)

FO9 Spent stripping and deaning bath solutions from eletopla'g operations K..T) P010 Ouenching bath sludge from ol baths from metal heat treatng operations .. (.)

F011 Spent solutions from salt bath pot cleaning from metal heat treating operat .... (R. T)

1012 Quenching wastewater treatment sludges from metal heat treating operations (T)

F013 Flotation tainligs from.selective fltation from mineral metals recovery operabon (")

P014 Cyaridation wastewater treatment taUXn pond sediment from mlnell metal recovery operations (1)

F015 Spent cyanide bath solutions from mineral metals recovery operations (. )

P016 Dewatered air polution control scrubber s udge from coke ovens arnd ble t funeca (')

§ 261.32 Hazardous waste from specific sources.

Industry and EPA Hzardous waste Hazard code

hazardous waste No.

Wood Presenration: K001 - Bottom secdnent sludge from the treatment of wastewaters from wood prW ng p(oceMs that ua Creosote a&Or pen htCorophenoL ()

Inognic Pigments: K002 Wastewater treatment sludge from the production O4 chrome yelow and orange pgmenrt (1)

K003 Wastewater treatment sludge from the production of moybdate orange p~grn ts .. C) K004 - Wastewater treatment sludge from the production o zinc yalow pgments.........CO K005 Wastewater treatment sludge from the production o chrome green pigments .. )

K006_.. .. ... Wastewater treatmnent sludge from the production o chrome oxide geen pg nt (anhydrous and hydrate T) K007 Wastewater treatment sludge from the prodcion of iron blue pigments (1)

K008 - Oven resdue from the production of chrome oxide green pigmen. .T.

Organic Cn s: KO09 Dstlation bottoms from the production o aoetadfde fron ehyle . ..

KOO Distilation side cuts from the production of aeldelyde from , .T)

K011 Bottom stream from the wastewater stripper in the production of acyfor i.e (K.7)

K012.. Sti bottoms fron the final purification o acryoritre in the production i aylo.iti.e .. (T)

K013 Bottom steam from the acetonitril column In the production of a ,cryloniO.. (51)

1014 Bottom from the a peron iaction fe column in the production of crtyonitrie ("T)

K015.. .. .. Still bottoms from the ,istilation o berzyl chloride M.)

K016 Heavy ends or distilation residues from the producin o carbon tetrahdloride CT) K017 Heavy ends (stil bottoms) from the pufication column in the production of @apc rotydri (T)

1018 Heavy ends from fractionation in ethyl chlbrid proritde o ()

1019 Heavy eds from the ditlation of ethylene d oid in ethyjene dchiorde pro - : C K020 Heavy ends from the distilation of vinyl chlorde in vnyl chloride monomer production (T)

K021 Aqueous spent antimony cataLyst waste from u e r ... ... . T) K022 Distilation bottom tars from the prOducti O pheoaco from cue .T)

K023 Dtiltaton fight ends from the production o phUhe artidd from naphth ne C K024 Distillaton bottoms from the production of phtha anhydride from naphthhen ) K025 Distilation bottoms from the production of trobenne by the nitration o benzene. CT) K026 Stripping sM tais from the production Of methy ethyl p ea ..... (I)

K027 Centrifuge reidue from toluene iocyaate producti (R T)

K028 Spent cata yst from the hydrochlornnator reactor in the production of 1.1.1,rchlooethane (T)

K029 Waste from the product stream stripper in the production of 1.1.1-i.chi.oeth n'T)

.030 - Cokm botoms or heavy ends from the combined production of blchiorostYilene and perchloroe .t.ene ()

Pestiides:

K031 By-products salts generated in the production of MSMA ard cacodyc acid .C)

K01.o32_, Wastewater treatment sludge from the production of chlordene C)

K033 Wastewater and scrub water from the chlorination of cyclopentadiene in the production o chotdone CT) K034 Filter solds from the tration of achlorocyclopents In the production of ctiordmne (T)

K035 Wastewater treatment sludges generated in the production o creos.te (T) K036 Still bottoms from toluene reclamation disllation In the production O d'aloon ,C)

K037 Wastewater treatment sludges from the producton of KiAulolon CTQ K038 Wastewater from the washing ard stripping of phorate production.. .. CT)

K039 Fiter cake from the titration of diethylpho rodthoric acid In the production of phoraa (1)

K040 - Wastewater treatment sludge from the production of phorIte ()

K0 , 4t Wastewater treatment sludge from the production of to phene .. .T)

K042 Heavy ends or distilation residues from the dtlaon of tetrachloroberzene In the producon o 2.45-T (T)

K043 Z6-Dichlorophenol waste from the production of Z4-D .. )

K044 Wastewater treatnent sludges from the manufaectng and processing of o .plo.. . (R)

K045 Spent carbon from the treatment of wastewater containn -o - (R)

K046 Wastewater treatment s"lges from the manufactsing. lmation and loaing of lead-baed kM ig compounds.. (T)

K047 Pinklred water from TNT operations ..

Petroleum Refiring:

K048 Disolved ai flotation (DAF) float from the petrole re inv y .CT) K049 Slop oi emulsion acids from the petroteum refining i n

K050 Heat exchanger burzi'e cdearng sudge fromrn the petroleum reQnin i ly CT) K051 API separator sludge from the petroleum re k i industry .... CT)

K052 - Tank bottoms (leaded) from the petroleum refinng industry C)

Leather Tarig Firishirg: K053 Chrome (blue) tnmlngs generated by the folowing subcategories of the father tarn ard ktimIn fty heir pulplchrome wnre.I CT) wet tinish; hair savelchrome tanlretarlwet r-, tretan/wet finht no bearrnoux Vvough-he-4*w and sheting.
33124 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

§ 261.32 Hazardous waste from specific sources. -Continued

Industry and EPA Hazardous waste Hazard coda hazardous waste No.

K054 .................. . Chrome (blue) shavings generated by the following subcategories of the leather tanning and finishing indutby hair pulp/chromo tan/retan/ () wet finish; hair save/chrome tan/retan/wet finish; retan/wet finish; no beamhouse; through-the-blue: and shealing. K055 ........................ Buffing dust generated by the following subcategories of the leather tann'ng and finishing Industry: hair pulp/chrome tan/retan/wet finish; (T)

hair save/chrome tan/retan/wet finish; reran/wet finish; no beamhouse; and through-the-blue. K05S .......................................... Sewer screenings generated by the following subcategories of the leather tanning and finishing industry hair pulp/chrome tanhotan/wel (T)

finish; hair save/chrome tan/retan/wet finish: retan/wet finish; no beamhouse; through-the-blue; and shearling.

K057 ........................ Wastewater treatment sludges generated by the following subcategories of the leather tanning and finishing Industry. hair pulp/chromo tan/ (I) retan/wet finish; hair save/chrorhe tan/retan/wet finish; retan/wet finish; no beamhouse; through-the-blue and shearling. K058 ...................... ............... Wastewater treatment sludges'generated by the following subcategories of the leather tanning and finishing Industry. hair pulp/chrome tan/ (R ")

retan/wet finish; hai save/chrome tan/retan/wet finish; and through-the-blue. K059 ............................... Wastewater treatment sludges generated by the following subcategory of the leather tanning and finishing lndustry hair save/non-chromo (A)

tan/retan/wet finish.

Iron and Steel:

K060 ...................................... Ammonia still lime sludge from coing operao ............................................... ... . . . ().... K061 .................................... Emission control dust/sludge from the electric furnace production of steel ................................................................................

(' ) K062 ........................................ Spent pickle liquor from steel finishing operations .................................................... .. (C. T) K063 . .. ................. r. ........ Sludge from lime treatment of spent pickle riquot from steel finishing operations . .................................. ..... ()

Primary Copper. K064 ................... Acid plant blowdown slurry/sludge resulting from the thickening of blowdown slurry from primary coper production ......................................... Mr)

Primary Lead: K065 .................... Surface impoundment solids contained in and dredged from surface impoundments at primary lead smelting facilities ...................................... ()

Primary Zinc.

K066 ........................... Sludge from treatment of process wastewater and/or acid plant blowdown from primary zinc production .............. ........................... (1) K067 ............. Electrolytic anode slimes/sludges from primary zinc production ........................................................ ......... . .. () K068 . ... .................... Cadmium plant leach residue (iron oxide) from primary zinc production..... .. .... .............. . . ............. 1"T) Secondary Lead: K069 .................. Emission control dust/sludge from secondary lead smelting . ... ............. .......... ..... ..................................

§ 261.33. Discarded Commercial Chemical

Products, Off-Specification Species,

Containers, and Spill Residues Thereof.

The following materials or items are

hazardous wastes if and when they are

discarded or intended to be discarded:

(a) Any commercial chemical product,

or manufacturing chemical intermediate

having the generic name listed in

paragraphs (e) or (f) of this section.

(b) Any off-specification commercial

chemical product or manufacturing

chemical intermediate which, if it met

specifications, would have the generic

name listed in paragraphs (e) or (f) of

this section.

(c) Any container or inner liner

removed from a container that has been

used to hold any commercial chemical -

product or manufacturing chemical -

intermediate having the generic name

listed in paragraph (e) of this section,

unless:

(1) The container or inner liner has

been triple rinsed usiiig a solvent

capable of removing the c~mmercial

chemical product or manufacturing

chemical intermediate; (2) The cbntainer or inner liner has

been cleaned by another method that

has been shown in the scientific

literature, or by tests conducted by the

generator, to achieve equivalent -

removal; or

(3) In the case of a container, the inner

liner that prevented contact of the

commercial chemical product or

manufacturing chemical intermediate

with the container, has beeh removed.

(d) Any residue or contaminated soil,

water or other debris resulting from the

cleanup of a spill, into or on any land or

water, of any commercial chemical

product or manufacturing chemical

intermediate having the generic name

listed in paragraphs (e) or (f) of this

Section.

[Comment: The phrase "commercial

chemical product or ma-nufacturing

chemical intermediate having the

generic name listed in.. .. " refers to a

chemical substance which is

manufactured or formulated for

commercial or manufacturing use. It

does not refer td-a material, such as a

manufacturing process waste, that

contains any of the substances listed in

paragraphs (e) or (f). Where a

manufacturing process waste is deemed

to be a hazardous waste because it

contains a substance listed in

paragraphs (e) or (f), such waste will be

listed in either § § 261.31 or'261.32 or will

be identified as a hazardous waste by

the characteristics set forth in Subpart C

of this Part.]

(e) The commercial chemical iroducts

or manufacturing chemical

intermediates, referred to in paragraphs

(a) through (d) of this section, are

identified as acute fiazardous wastes

() and are subject to the small quantity

exclusion defined in § 261.5(c). These

wastes and their corresponding EPA

Hazardous Waste Numbers are:

Hazardous Substance

waste No.

1080 see P0S8

1081 see P057

(Acetato)phenylmercruy see P092

Acetone cyanohydrin see P069

POOl 3-(alpha-Acetonybenzy-44rydrxycoumarin and

salts

P002.,_.. 1-AcetyI-2-thlourea

P003-_ Acroleln

Agarin see P007

Agrosan GN 5 see P092

Aldicarb see P069

Acfrren see P048

-Continued "

Hazardous Substance'

waste No.

P004... Adrin

Algimycin see P092

P005 ....... Allyl alcohol

P006 ........ Aluminum phosphide (R)

ALViT see P037

Aminoethyloeno see P054

P007 ...... 5-(Amnomoethyl34soxazolol

POOS....... 4-Aminopyridine

Ammonium metavanadate see P1 19 P009........ Ammonium picrate (R)

ANTIMUCIN WOR see P092

ANTURAT see P073

AQUATHOL see P088 ARETIT see P020

P1O0....... Arsenic acid

P01 ...... Arsenic pentoxido

P012..... Arsenic trioxido

Athrombin sea POOl

AVITROL see P008

Azirldoene see P054

AZOFOS see P061

Azophos see P061

BANTU see P072 P013...... Barium cyanide

BASENITE see P020

BCME see P016

P014 .......... Beriznothlol

Benzoepin see P050

P015.... Beryllium dust

P016........ Bis(chloromethyl) ether

BLADAN-M se P071

P017........ Bromoacetone

P018.... Brudne

P019.... 2-Butanono peroxide

BUFEN see P092

Butaphene see P020

P020..... 2-se-Butyl.4,6-dnitropheno

P021........ Calcium cyanide

CALDON see P020

P022...... Carbon disulfide

CERESAN see P092

CERESAN UNIVERSAL see P092

CHEMOX GENERAL see P020

CHEMOX PE. see P020

CHEM-TOL sea P090 P023..... Chloroacetaidohyde

P024 .......... pChloroanriline P025 ........ 1-(p-Chorobenzoyl)-5-mothoxy-2.mthylndole.3,

acetic acid

P026 ...... 1-(o-Chlorophenyl)thlouea P027....... 3-Chloropropionitrile

P028. alpha-Chlorotolueno

P029 ........ Copper cyanide CRETOX see P100

Coumandir see Po01

Coumafen see Pool P030... Cyanides
Hazardous

waste No.

P031 Cyanogen

P032 . Cynogen br e P033 Cyanogen ch id

Cycodan see P060

P034- 2 ey-.6-dnitrpheoI ,Cy 

D-CON see P001

DETHMOR see P001

DETHNEL see P01

DFP see P043

P035 Z4-Dichlo2, wp yacefic add (24-)

P036- Didiorophnlarsie

Dlc yargen see P031

P037- Dieldiri

DIELDREX see P037

P038- Oiet e P039- 0.0-Dethyl.S-(2-(ethylthio)ethl~ser of phophrohli acd

P040- 0.0-Dietyl-0-(2-py"a"te P041- 0,0-Diethyl phosphoric add. 0-nitrophenyl ester

P042- 3.4-DIy -lpha-(methylan*io)-rnethyI benzyl

alcohol

P043- Di-sopropyluorophoaphate

DIMETATE see P044

1.45, e hthalene. 1,22,4.10.10-

hem ,AaS.88a-heahydm endo, erdo see P060

P044- Dyrnethoate

P045- 33-Dmkehyl--(nethylthio)-2-butao-OP046- [(neoh ylphawet hylanrw

Diircylhrype* ,, see P034

P047-_ 4, - and salts

P048- Z4-)Wtnophenol

DINOSEB see P020

DINOSEBE see P02D

Dbulfoto see P039 P049- 2,- tthiobkmet

DNBP see P020

DOLCO MOUSE CEREAL see P108

DOW GENERAL see P020

DOW GENERAL WEED KILLER see P020

DOW SELECTIVE WEED KILLER see P020

DOWICIDE G see P090

DYANACIDE see P092

EASTERN STATES DUOCIDE see P001

ELGETOL see P020

P050- Endosulfan

P051 - Enduin

Epbephuine see P042

P02.- Ethylcyaride

P053..- Ethylenecfanrje

P054- Ethylendehe

FASCO FASCRAT POWDER see Pool

FEMMA see P091

P055- Fen cyadde

P056- Fluone

P058- Fluoroacetic acid. sodium salt

FOLODOL-80 see P071

FOLOOOL M see P071

FOSFERNO M 50 see P071

FRATOL see P058

Fuknimmte of mernsy see P065

FUNGITOX OR see P092

FUSSOF see P057 GALLOTOX see P092

GEARPHOS see P071

GERUTOX see P020

P059- HeptachN

P060- 1,2,.4.10.10-H 14.4a.58,8aht yrho-1",-edo, endo-cmethanonaph- thale ne

1,4,5,6,7,7-H o j:23-

danethanol sumiie see P050

P061- Hexachopropene

P062-. Hemethyl tetrap;aphate HOSTAOUICK see P092

HOSTAQUIK see P092

Hydrazoethane see P068

PO63- Hydrocyask add

ILLOXOL see P037

INDOCI see P025

Indomethacin see P025

INSECTOPHENE see P050

Isodrin see P060

P04- lsocyan-c add. methyl ester

KILOSEB see P020

KOP-THIOOAN see P050

KW1K-KIL see P108 - KWIKSAN see P092

KUMADER see P001

KYPFARIN see P001

LEYTOSAN see P092

IOUIPHENE see P092

Hazardous

waste No.

MAIJK see P050

MAREVAN sea PO01

MAR-FRIN sea P001

MARTINO MAR.FRIN se P001

MAVERAN see P001

MEGATOX see P006

P065- Mercury Iurkiate

MERSOUTE see P002

METACIO 50 s. P071

METAFOS see P071

METAPHOR se P071

METAPHOS see P071

METASOL 30 sea P002

P066 Meftmyl

P67- 244than.~

.JETHYL-E 605 see P071

P058-~~ MeWA~ hydrse

Me" Isocya a e see P06

P070.. -. hl2(ehldl-rpoley.o

(mal~aror osin

METHYL NIRON n.o P042

P071 - Methyl praitho

METRON see P071

MOIE DEATH see P106

MOUSE- TS see P106

MOUSE-RID see P106

MOUSE-TOX see P106

MUSCIMOI. see P007

P072- 1-Nehy-2.loxe

P073. Nickel carbonyl

P074- Nicks! cyaride

P075- NMoo&ie and salts

P076- Nitricoad.

P077- p-Mtroatra P078- NkoW 6*We

P079- Nitrogen proalde

P060- Nitrogen ltwme

P061 - Noglco. (R) P062- N-Ntrosod.rethyarrin

P063- N. oescdpheryunirw P064-.. N.NftroumehmW*yt~a

NYLMERATE so. P092

OCTA/OX swe P037

OCT/ sea P002

P006 . Oid alcohol cidensed wh 2 MCI. stlylere

OMPA ae P065

OMPAC3DE see P06

OMPAX sa. P065

P087- Oani takoslde

P088- 7.05 [d22-hte wb-d yk ad

PANtVARFIN sea P001

PANORAM D-31 see P037

PANTHERINE we P007

PANWARFIN see PO01 P089- Par tio

PCP se POmO

PENNCAPM see P071

PENOXYL CARBON N a. P04

P090-...~. PwfttAjrohmn

PeAcoophenat sa. POGO

PENTA-KILL sea P00

PENTASOL soe P00

PENWAR see P000

PERMICIDE se P0M0

PERMAGUARD sea P00

PERMATOX see P00 PERMITE sea P00

PERTOX s.e P00

PESTOX III see P066

PHENMAD see P092

PHENOTAN see P020 Pool- pheyt dicdomrusPtwrtriarcapW see P014

P092- Ptwj rcury acetate

P093-. N-Ph~nl sora PHILIPS 1861 see POD6

PIIIX see P002

15094-... Phorate

PD95- Phosgie. P096- Pfich

P097. Phoephorothoc add. 00-&nk est-. 0-ear

with N-d Jt4 benzene a 'w'ri c add 0.0-mvfhyl-( - phena) este s P071

PIED PIPER MOUSE SEED see P106

P098- pelt cymide

P099- Pfts a icid$

PREMERGE se P020

P100. 1.2-roancoi

Proparvl4 alcohol see P102 P10-O rpok

33125

Hazadous

wwNo.

P102__ 2-Propyn-l-ol

PROTHROMADI, See P001

UNCISAM see P002

OUINTOX see P037

RAT/ NO MICE BAIT see P001

RATA-WAY see P001 RAT-B-GON see P001

RAT-04OE #2 see P001

RAT-GUARD sme P001

RAT-KILL see P001

RAT-MIX "e P001

RATS-NO-MORE see P001

RAT-OLA seae P001

RATOREX see P001

RATTUHL see Pol

RAT-TROL see POOl

9O-1ETH see P001

RO-DEX see P106

ROSEX see PO1 ROUGH & READY KUSE MIX see P001

SANASEED see P106

SANTO6RITE see P00

SANTOPHEN see P00 SANTOPHEN 20 see P090

SCHRADA see P065

P103- Seenoume

P104.. saeroyer*id

S M see P105 SPARIC see P020

SPOR-KIL see P002

SPRAY-TROt. BRAND ROOEH-TROL see P001

SPURGE seae P020

Pl0- SO~fA" aide

Sodium curA dn see PO0 P10 6- Sod .,cyarids

Soduw knroeceace see P066

SOOIUM WARFARIN see P001

SOLFARIN see P001 SOLFO..ACK B8 see P048

SOLFOLACK S8 see P048 PI07- SIronkm su" P106- Sydhrww Ad sails

SUBTEX see P020

SYSTAM see P066

TAG FUNGIIDE seae P02

TEXWAISA see P071

TEMIC see P070

TEMIK see P070 S IEFPJM4-TROL see P0O0

P00. Telrastoyidllopyophoephale

Pl 10- Takes" Imad

Pill- Teirambsipoposplate P112 Tetivormethmm

Teraphoephrido add. hexseh estr see P062

TETROSULFUR BLACK PB see P048

TETRO6ULPHUR PBR see P048

P113- Thiicadde

The*= peroxide see P113

P114 .Th urnselariie

TWOR see P002

THLUIL see P002

THI00AN sea P050 IIIIOFOR see PM6

THIOMtUL see P00

THIONEX see P00

THIOPltET E see P071

P11- Thoseaicarbazde

IToilfan fonef see P060

P117- Th~iurm

THOUPSONS WOOD FIX see P0O0

TIOVEL see P050 PI1L Trichirontmtlharl'io

TWIN LIGT RAT AWAY see POW1

US F PH-8 see P060 USAF EK-4a00 see P002

PI19- Vaad sod anirium sal

P120 Vardur peloxdde

VOFATOX see P071

WANADU se P120

WARCOUMIN "a P001

WAR/FAIN SOOIUM see P001

WARFICIDE see P001 WOFOTOX see P072

YAN OC see P057 YASOKNOCK see P058

ZIARNIK see P002

P121- Ztc cyride

PI22- Znc phosphide (RT)

ZOOCOUMAIMR see P001

'The Age-ncy Idkxled tose trade rmes of tich it was aswhr an anlm of a t"d, name does not krn,' tha t e oritled merneal Is not hazardous. The matarial is hazardous

N I Is isted aSthr its gneric name.

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

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

(f) The commercial chemical products or manufacturing chemical

intermediates, referred to in paragraphs

(a), (b) and (d) of this section, are

identified as toxic wastes (T) unless

otherwise designated and are subject to

the small quantity exclusion defined in

§ 261.5 (a) and (b). These wastes and

their corresponding EPA Hazardous

Waste Numbers are:

Hazardous Substance'

Waste No.

AAF see U005 U001 .......... Acetaldehyde

U002 ......... Acetone (I) U003 .......... Acetonitrite (I,1)

U004 .......... Acetophenone U005 .......... 2Acetylaminoflourene

UDOS ......... Acetyl chloride (CT) U07 .......... Acrylamide

Acetylene tetrachloride see U209'

Acetylene trichlorde see U228 U0S .......... Acrylic acid (I) U009 .......... Axlonir le

AEFOTHENE Tr see U226

3.Amino-5-(p-acetamidophenyl)-IH-1,24-Vizole,

hydrate see U011 U010 .......... 6-Amino-l,la,2,88a,8b-hexahydro-8- (hydroxymothyl)8-methoxy.5-methylcarbamate

azIrlno(2',3'.3,4) pyrrolo(1.2-a) indole-4, 7-diond

(ester) U011 .......... Amitrole

U012 .......... Aniline (I) U013 .......... Asbestos

U014 .......... Auramine

U0IS .......... Azaserine U016 .......... Benz[c]acidine U017 ......... Benzal chloride .U018 .......... Benz[a]anthracene U019 .......... Benzene U020 .......... Benzenesulfonyl chloride (CR) U021 .......... Benzidine

1,2-Benzisothiazolin-3-one, 1,1-dioxde see U202

Benzota]anthracene see U018 a U022 .......... Benzorapyrene U023 ...... Benzotrlchlorlde (C,RT) U024 .......... Bis(2-chloroethoxy)methane U025 .......... Bis(2.chloroethyl) ether U026 ......... N,NoBis(2-chloroethy).2-naphthylamine U027 ... Bis(2-chloroisopropyl) ether U028 .......... Bis(2-ethylhexyl) phthilate U029 .......... Bromomethane U030 .......... 4-Bromophenyl phenyl ether U031..... n-Butyl alcohol (I)

U032 .......... Calcium chromate

Carbolic acid seebils

Carbon tetrachloride see U211 U033........ Carbonyl fluoride U034 .......... Chloral U035 .......... Chlorambucil U036 .......... Chlordane U037 .......... Chlorobenzene U038 .......... Chlorobenzilate U039 .......... p-Chloro-m-cresol U040 .......... Chlorodibromomethane U041 .......... 1-Chloro-2.3-epoxypropane

CHLOROETHENE NU see U226 U042 .......... Chloroethyvinyl ether U043 .......... Chloroethene ' U044.. Chloroform (1,T) U045.... Chloromethane (1,T)

U046.. Chloromethyl methyl ether U047..... 2-Chloronaphthatene

U048 .......... 2-Chlorophenol U049 .......... 4-Chloro-o-toluidine hydrochloride U050 .......... Chrysene

C.. 23060 see U073 U051 . Cresote U052 . Cresols U053 .......... Crotonaldehyde

U054... Cresylic acid

U055 ......... Cumene

Cyanomethane see U003 U056 .......... Cyclohexane (I) UD57 ......... Cycohexanone (I) U058 .......... Cyclophosphamide U059 .......... Daunomycin

U060 .......... DDD

Hazardous

Waste No.

Substance'

U061 .......... DDT U062. ..... iallate

U063 ...... Dibenz[a.hlanthracene

Dibearzola,hanthrhcene see U063

U064 ......... Dibenzo[ai]pyrene

U065...... Dibromochloromethane

U066...... 1,2-Dibromo-3-chloropropane

U067.... 1,2-Dibromoethane

U068 ..... Dibromomethane

U069...... Di-n-butyl phthalate

U070...... 1,2;Dichlorobenzene

U071..... 1.3-Dichlorobenzene

U072....... 1,4-Dichlorobenzene

U073....... 3,3'-Dichlorobenzdkine

U074.... 1,4-Dichtoro-2-butene

3.3'-Dichloro-4,4'-diaminobiphenyl see U073

U075.....-.. Dichloroduiluoromethane

U076....-... .1-Dichloroethane

U077.-...... 1,2-Dichloroethane

U078....... 1,1-Dichloroethylene

U079 ..... 1,2otrans-dichloroethyane

U080......... Dichforomethane

Dichloromethytbenzene see U017

U081....... 2,4-Dichlorophenol

U082....... 2,6-Dichforophenol

U083..... 1.2-Dichloropropane

U084...... 1,3-Dichloropropene

U085........ Diepoxybutane (1,T) U086 ..-..... 1,2*Die thyihydrazine

U087-..- 0,0-Diethyl-S-methyl 'ester of phosphorodithioic

acid

UO8&..... Diethyl phthalate

U089..... Diethylstitbestrol

U090 ...... Dihydrosafrote

U091.... 3,3'-Dimethoxybenzidine

U092....-.. Diethylanine (I)

U093......... p.Dimethylaminoazobenzene

U094 ...... 7.12-Dimethylbenz[a]anthracene

U095. ....... 3.3'-Dimethylbenzidine

U096...... alphaalphaDimethylbenzyhydroperoxde (R)

U097...... Dimethylcarbamoyl chloride

U098.... 1.1-Dimethylhydrazine

U099..... 1.2-Dimethylhydrazine

U100..... Dimethylnitrosoamine

U101...... 2,4-Dimethylphenol U102.. ..... Dimethyl phthalate

U103 .-. Dimethyl sulfate

U104..... 2,4.Dinitrophenol

U105. . 2,4-Dinitrotoluene

U106-.... 2,6-Dinitrotoluene

U107 .-. Di-n-octyl phthalate

U108. 1,4-Dioxane

U109....- 1,2-Diphenylhydrazine

Ul1O....... Dipropylarnne (I)

UI 1 ...... Di-n-propytnitrosamine

EBDC see U114

1,4-Epoxybutane see U213

U112...... Ethyl acetate (I)

U113.. Ethyl scrylate (I)

U114........ Ethylenebisdithiocarbamate

Ul15....... Ethylene oxide (I,1)

Ul16........ Ethylene thiourea

Ul17.. Ethyl ether (1,T)

Ul18 ..... Ethylmethacrylate

Ul19...... Ethyl methanesulfonate

Ethynifrile see U003

-Fremaster T23P see U235

U120. Fluoranthene .

U121...... Fuorotdichloromethane

U122....... Formaldehyde

U123-. Formic acid (0,1)

U124 .......... Furan (I)

U125 ....... Furfural (I)

U126-....... -Glycidylatdehyde

U127 ......... Hexachlorobenzene

U128...--.. Hexachlorobutadiene

U129........ Hexachdorocyctohexane

U130......-. Hexachlorocyclopentadiene

U131 ..... Hexachloroethane

U132 ...... Hexachlorophene

U133........ Hydrazine (RT)-

U134........ Hydrofluodc acid (CT)

U135...... Hydrogen sulfide

Hydroxybenzene see U188

U136 ...... Hydroxydimethyl arsine oxide 4,4'-(Imidocarbony bis(N,N-dimethyaniline see

U014

U137....... lndeno(1,2,3-cd)pyrene

U138..... lodomethane

U139 ...... Iron Dextran

U140-....... Isobutyl alcohol

Hazardous

Waste No.

Substance'

U141 .......... Isosafrole

U142. ........ Kepone

U143 ........ Laslocarpine

U144........ Lead acetate

U145 .......... Lead phosphate.

U146 .......... Lead subaceato

U147........ Maleic anhydride

U148 .......... Malec hydrazido

U149. Malononittile

MEK Peroxide see U160

USO .. Melphalan

U151 .......... Mercury

U152......... Methacrylonitrilo

U153 Methanethol

U154 .......... Methanol

U155...... Methapyrilene

Methyl alcohol see U194

U156 ......... Methyl chlorocarbonate

Methyl chloroform see U226

U157 .......... 3-Methylcholanthrene

Methyl chloroformate see U156

U158 ........ 4,4-Methylane-bis.(2-chloroanilno)

U159 .......... Methyl ethyl ketone (MEK) (1")

U160 .......... Methyl ethyl ketone peroxide (R)

Methyl iodide see U138

U161 .......... Methyl Isobutyl ketore

U162........ Methyl methacrylato (R,T)

U163........ N-Methyl-N'-nitro-N-nitrosoguandino

U164 ........ Methylthiouracil

Mitomycin C see UOIO

U165 ......... Naphthaleno

U166 .......... 1,4-Naphthoquinone

U167 ........ l-Naphthylamine

U168...... 2-Naphthylamine U169 .......... Nitrobenzene (1.7)

Nitrobenzol see U169

U170......... 4-Nitrophenol

U171 .......... 2-Nitropropane (I)

U172 ......... N-Nitrosodl-n-butylamilno

U173 .......... N-Nitrosodiethanolamino

U174 ......... N-Nilrosodiethylamno

U175....-... N.Nitrosodi-npropylamlno

U176. ........ NoNiltosoonethylurea

U177 ......... N-Nilroso-n-mthylurfa

U178 .......... N-Nitroso-n-methylurethano

U179. NoNitrosopipeddino

U180 ......... N-Nrlosopyrolidine

UI11....... 5-Nitro-o-toluldine

U182..... Paraldehyde

PCNB see U185

U183-........ Pentahlorobenzeno

U184........ Pentachloroethane

U185. ........ Penachloonitrobenzeno

U186 1,3.-Pentadieno (I)

Perc see U210

Porchlorethyleo see U2t0

U187 ......... Phenacelin

U188 .. Phenol

U189.... Phosphorous sulfide (A)

U190...... Phthalic anhydride

U191 .......... 2-Picoline

U192 ......... Pronamide

U193..... 1,3-Propane sultone

U194.....-. n-Propylarino (I)

J19........ Pyridine

U197. ........ Ounones

U200 ..... Reserpine

U201 ......... Rosorcnol

U202......... Saccharin

U203 .......... Safrot

U204......... Sclenious acid

U205 ......... Selenium sulfide (R,')

Silvex see U233

U206 ....... Streptozotocin

2,4.5-T see U232

U207 ......... 1,245.Ttrachorobenzeno

U208 ....... 1,l,1,2-Tetrachloroethano

U209 .......... 1,1,2,2-Tetrachloroethano

U210 .......... Tetrachloroetheno

Tetrachloroethylono see U2i0

U211... Tetrachloromethane

U212.... 2,3,4.6-Tetrachlorophonol

U213 ..... Tetrahydrofuran (I)

U214....... Thallium (I) acetate

U215..... Thallium (I) carbonate

U216...... Thallium (I) chloride

U217.....-... Thallium (1) nitrate

U218...... Thloacetamide

U219. .. Thoure

U220....-... Toluene

U221 .......... Toluenediamine

U222 ...... o.Toludino hydrochloride

33126
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

Hazardous

Waste No.

SutanceI

Ug-.-- Tolu* isocyanate

U224- ToXaphN

Z4.5-TP see U233

U -- Tironomethane U226--- 1.1.1-Trichloroethane

U227- 1.12-Trdichloroethane

U228- Trictioroethene

Trichiboetk4ene see U228

U22 Trichgorotormeta

U230-. 2.4.5-Tricoro1phno

U231- 24.6-Trichorophenotl

U232__ 2,4.5-Trctoroo-eoxyaeic acid

U233-... 2,4,5-T" " " acid aVph.

alpha, alpo- Tnihorotolun see U023

TRI-CLENE see U228

U234--- Trinitrobenzene (RI)

U235-. Tris(2,3-dAcom opyt phohate

U236- Twan blue

U237-- Urac rustard

U238- Urethane

Vriyl chloride see U043

Vinrldene chloride see U078

U239- Xyene

1 The Agency icnuded those trade names of which it was

aware an omission of a trade name does not irply that it is

not hazardous. The mateial is hazardous if it is listed under

its generic name.

Appendix I-Representative Sampling

Methods

The methods and equipment used for

sampling waste materials will vary with

the form and consistency of the waste

materials to be sampled. Samples

collected using the sampling protocols

listed below, for sampling waste with

properties similar to the indicated

materials, will be considered by the

Agency to be representative of the

waste.

Extremely viscous liquid-ASTM Standard

D140-70 Crushed or powdered materialASTM Standard D346-75 Soil or rock-like

material-ATM Standard D420-69 Soillike material-ASTM Standard D1452-65

Fly Ash-like material-ASTM Standard

D2234-76 [ASTM Standards are available

from ASTM, 1916 Race St., Philadelphia,

PA 19103]

Containerized liquid wastes--"COLWASA"

described in 'Test Methods for the

Evaluation of Solid Waste, Physical/

Chemical Methods," I U.S. Environmental

Protection Agency. Office of Solid Waste,

Washington. D.C. 20460. [Copies may be

obtained from Solid Waste Information,

U.S. Environmental Protection Agency. 26

W. St. Clair St., Cincinnati, Ohio 45268]

Liquid waste in pits, ponds, lagoons, and

similar reservoirs.-"Pond Sampler"

described in "Test Methods for the

Evaluation of Solid Waste, Physical/

Chemical Methods." I

This manual also contains additional

information on application of these

protocols.

'These methods are also described in "Samplers

and Sampling Procedures for Hazardous Waste

Streams" EPA 600/2-0-o-18. January 1980.

Appendix 11- EP Toxicity Test

Procedure

A. Extraction Procedure (EP)

1. A representative sample of the

waste to be tested (minimum size 100

grams) should be obtained using the

methods specified in Appendix I or any

other methods capable of yielding a

representative sample within the

meaning of Part 260. [For detailed

guidance on conducting the various

aspects of the EP see 'Test Methods for

the Evaluation of Solid Waste, Physical/

Chemical Methods," SW--846, U.S.

Environmental Protection Agency Office

of Solid Waste, Washington, D.C.

20460.1]

2. The sample should be separated

into its component liquid and solid

phases using the method described in

"Separation Procedure" below. If the

solid residue 2 obtained using this

method totals less than 0.5% of the

original weight of the waste, the residue

can be discarded and the operator

should treat the liquid phase as the

extract and proceed immediately to Step

8.

3. The solid material obtained from

the Separation Procedure should be

evaluated for its particle size. If the solid

material has a surface area per gram of

material equal to, or greater than, 3.1

cm2 or passes through a 9.5 min (0.375

inch) standard sieve, the operator

should proceed to Step 4. If the surface

area is smaller or the particle size larger

than specified above, the solid material

should be prepared for extraction by

crushing, cutting or grinding the material

so that it passes through a 9.5 mm (0.375

inch) sieve or, if the material is in a

single piece, by subjecting the material

to the "Structural Integrity Procedure"

described below.

4. The solid material obtained in Step

3 should be weighed and placed in an

extractor with 16 times its weight of

deionized water. Do not allow the

material to dry prior to weighing. For

purposes of this test, an acceptable

extractor is one which will impart

sufficient agitation to the mixture to not

only prevent stratification of the sample

and extraction fluid but also insure that

all sample surfaces are continously

I Copies may be obtained from Solid Waste

Information. U.S. Envronmental Protection Agency

26 W. St. Clair Street. CincinnatL Ohio 45258.

2The percent solids Is determined by drying the

rilter pad at 80 C until it reaches constant weight and then calculating the percent solids using the

following equation:

(weight ofpad + so~d) - t-s weight of pad x 10D0 % sokd

k"htW of sample

brought into contact with well mixed

extraction fluid.

5. After the solid material and

deionized water are placed in the

extractor, the operator should begin

agitation and measure the pH of the

solution in the extractor. If the pHis

greater than 5.0, the pH of the solution

should be decreased to 5.0 ± 0.2 by

adding 0.5 N acetic acid. If the pH is

equal to or less than 5.0, no acetic acid

should be added. The pH of the solution

should be monitored, as described

below, during the course of the

extraction and if the pH rises above 5.2.

0.5N acetic acid should be added to

bring the pH down to 5.0 ± 0.2.

However, in no event shall the aggregate

amount of acid added to the solution

exceed 4 ml of acid per gram of solid.

The mixture should be agitated for 24

hours and maintained at 20°-40* C (68"-

104" F) during this time. It is

recommended that the operatormonitor

and adjust the pH during the course of

the extraction with a device such as the

Type 45-A pH Controller manufactured

by Chemtrix, Inc., Hillsboro, Oregon

97123 or its equivalent, in conjunction

with a metering pump and reservoir of

0.5N acetic acid. If such a system is not

available, the following manual

procedure shall be employed:

(a) A pH meter should be calibrated in

accordance with the manufacturer's

specifications. (b] The pH of the solution should be

checked and. if necessary, 0.5N acetic acid

should be manually added to the extractor

until the pH reaches 5.0 ± 0.2. The pH of the

solution should be adjusted at 15. 30 and 60

minute intervals, moving to the next longer interval if the pH does not have to be

adjusted more than 0.SN pH units.

(c) The adjustment procedure should be

continued for at least 6 hours.

(d) If at the end of the 24-hour extraction

period, the pH of the solution is not below 5.2

"and the maximum amount of acid (4 ml per

gram of solids) has not been added, the pH should be adjusted to 5.0 ± 0.2 and the

extraction continued for an additional four

hours, during which the pH should be

adjusted at one hour intervals.

6. At the end of the 24 hour extraction

period. deionized water should be added

to the extractor in an amount

determined by the following equation:

V= (20][W)-1(W]-A

V= ml deionized water to be added

W= weight in grams of solid charged to

extractor

A= ml of 0.5N acetic acid added during extraction

7. The material in the extractor should

be separated into its component liquid

and solid phases as described under

"Separation Procedure."

8. The liquids resulting from Steps 2

and 7 should be combined. This

33127
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

combined liquid (or the waste itself if it

has less than 1/2 percent solids, as noted

in'Step 2] is the extract and should be

analyzed for the presence of any of the

contaminants specified in Table I of

§ 261.24 using the Analytical Procedures

designated below.

Separation Procedure

Equipment: A filter holder, designed

for filtration media having a nominal

pore size of 0.45 micrometers and

capable of applying a 5.3 kg/cm 2 (75 psi]

hydrostatic pressure to the solution

being filtered shall be used. For-mixtures

containing nonabsorptive solids, where

separation can be affected without

imposing A 5.3 kg/cm 2 pressure

differential, vacuum filters employing a

0.45 micrometers filter media can be

used. (For further guidance on filtration

equipment or procedures see "Test

Methods for Evaluating Solid Waste,

Physical/Chemical Methods."]

Procedure: 3

(i] Folloving manufacturer's

directions, the filter unit should be

assembled-with a filter bed consisting of

a 0.45 micrometer filter membrane. For

difficult or slow to filter mixtures a

prefilter bed consisting of the following prefilters in increasing pore size (0.65

micrometer membrane, fine glass fiber

prefilter, and coarse glass fiber prefilter)

can be used.

(ii) The viaste should be poured into

the filtration unit.

(iii) The reservoir should be slowly pressurized until liquid begins to flow.

from the filtrate outlet at which point the

pressure in ,he filter should be

immediatel lowered to 10-15 psig. Filtration s iould be continued until

liquid flow ceases.

(iv) The pressure should be increased

stepwise in 10 psi increments to 75 psig and filtration continued until flow

ceases or the pressurizing gas begins to.

exit from the filtrate outlet.

(v) The filier unit should be

depressurized, the solid material

removed and weighed and then

transferred tp the extraction apparatus,

or, in the case of final filtration priorto, analysis, disbarded. Do not allow the

-This procedue is intended to result in

separation of thd "free" liquid portion of the waste from any solid m'atter having a partlcle size

>0.45um. If the s~mple will not filter, various other

separation techniques can be used to aid in the

filtration. As despribed'above, pressure filtration is

employed to speed up the filtration process. This

does not alter the nature of the separation; If liquid does not separate during filtration, the waste can be

centrifuged. If ieparation occurs during

centrifugation the liquid portion (centrifugate) is

filtered through the 0.45urn filter prior to becoming

mixed with the liquid portion of the waste obtained

from the initial filtration. Any material that will not

pass through the filter after centrifugation is

considered a solid and is extracted.

material retained on the filter pad to dry

prior to weighing.

(vi) The liquid phase should be stored

at 4°C for subsequent use in Step 8.

B. Structural Integrity Procedure

Equipment: A Structural Integrity

Tester having a 3.18 cm (1.25 in.)

diameter hammer weighing 0.33 kg (0.73

lbs.) and having a free fall of 15.24 cm (6

in.) shall be used. This device is

available from Associated Design and

Manufacturing Company, Alexandria,

VA., 22314, as Part No. 125, or it may be

fabricated to meet the specifications

shown in Figure 1.

Procedure: -

1. The sample holder should be.filled

with the material to be tested. If the

sample of waste is a large monolithic

block, a portion should be cut from the

block having the dimensions of a 3.3 cm

(1.3 in.) diameterx 7.1 cm-(2.8 in.)

cylinder. For a fixated waste, samples

may be cast in the form of a 3.3 cm (1.3

in.) diameter x 7.1 cm (2.8 in.) cylinder

for purposes of conducting this test. In

such cases, the waste may be allowed to

cure for 30 days prior to further testing.

2. The sample holder should be placed into the Structural Integrity Tester, then

the hammer should be raised to its

maximum height and dropped. This

should be repeated fifteen times.

3. The material should be removed

from the sample holder, weighed, and

transferred to the extraction apparatus

for extraction.

Analytical Procedures forAnalyzing

Extract Contaminants

The test methods for analyzing the

extract are as follows:

(1) For arsenic, barium, cadmium,

chromitm, lead, mercury, selenium or

silver: "Methods for Analysis of Water

and Wastes," Environmental Monitoring

and Support Laboratory, Office of

Research and Development, U.S.

Environmental Protection Agency,

Cincinnati, Ohio 45268 (EPA-600/4-79-

020, March 1979),

(2) For Endrin; Lindane;

Methoxychlor; Toxaphene; 2,4-D; 2,4.5-

TP Silver: in "Methods for Benzidine,

Chlorinated Organic Compounds,

Pentachiorophenol and Pesticides in

Water and Wastewater," September

1978, U.S. Environmental Protection

Agency, Environmental Monitoring and

Support Laboratory, Cincinnati, Ohio

42568,

as standardized in 'Test Methods for

the Evaluation of Solid Waste, Physical/

Chemical Methods."

For all analyses, the method of

standard addition shall be used for the

quantification of species concentration.

This method is described in "Test

Methods for the Evaluation of Solid

Waste." (It is also described in

"Methods for Analysis of Water and

Wastes.")

BILLING CODE 6560-01-M

33128
cnA'-,'i Doon=a°,- I Vnl 4. Mn.qR I Monday. May 19. 1980 I Rules and Regulations339

3.3cm 14

(1.3")

9.4cm

(3.7")

COMBINED

WEIGHT

.33Kg

(.731b)

ELASTOMERIC *

SAMPLE HOLDER

*ELASTOMERIC SAMPLE HOLDER FABRICATED OF

MATERIAL FIRM ENOUGH TO SUPPORT THE SAMPLE

Figure 1

COMPACTION TESTER

BILLNG COOE &%"-01-C

p-A -1 1 UnI 45 No 98 / Mondav, Mav 19, 1980 / Rules and Regulations

33129
33130 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

Appendix Ill-Chemcal Analysis Test

Methods

Tables 1, 2 and 3 specify the

appropriate analytical procedures,

described in "Test Methods for

Evaluating Solid Waste" (SW-846),

which should be used in determining

whether the waste in question contains

a given toxic constituent. Table 1

identifies the. analytical class and the,

approved measurement techniques for

each organic chemical-listed in

Appendix VII. Table 2 identifies the

corresponding methods for the inorganic

species. Table 3 identifies the specific

sample preparation and measurement

instrument introduction techniques

which may be suitable for both the

organic and inorganic species as well as

the matrices of concern.

Prior to final selection of the

analytical method the operator should

consult the specific method descriptions

- m SW-846 for additional guidance on

which of the approved methods should

be employed for a specific waste,

analysis situation.

Table l.-Analyf'cal Charactenstics of Organic Chemials

Measurement technaques Compound Sample handineg - Non-GC

class/fracon methods Conventional

GC/MS GC Detector

Acetonithile ............... .... Volale .......

Acroleln .......................... ........ Volable.. . . . .

Acrylamide ................ .......

AcryloNtrile ............... ...... Volatile..................

Benzene .................................

Senz(a)anthracene....... Extractable/SN .. ...... 8.10 (HPLC)_

Benzo(a)pyrone .............. Extractable/BN ............. 8.10 (HPLC)_

Benzotrchlorde .......... ....... Extractable/BN........

Bonryl chloride . ....... Volatile or Extractable/SN

Benz(b)fluoanthne............ Extractable/BN. ...... 8.10 (HPLC)_

Sis(2-chloroethoxymethane) ..... Volaile......... -.. -... ,.

Sls(2.chloroethyl)ether _....... Volatie......

Sls(2-chlorolsopropyether ....... Volatile........ Carbon disulfide ....... Volatile --..

Carbon tetrachloride. ......... Volatile.. - - - Chlordane Extractabe/BN........................

Chlonnated dlbenzodioxans . Extractable/SN....

Chlorinated blphenyls............. Extractable/BN. .......... Chloroacetaldehyde ................ Volatile

Chlorobenzeno .................. Volatle - _ _

Chloroform .............................. Volatile

Chloromethane ....................... Volatle__ _ _

2-Chlrophenol ....................... Extractable/SN ........

Chrysene ............. . ........... Extractable/SN........ 8.10 (HPLC)_

Creosote . ....................... Extractable/SN.___

Cresol(s) ................... F.xt.ctabeA -.................. Crsylic acle(s) ............................ Extractable/A .......... Dichlorobenane(s) ................. Extractabl/BN

Dichloroethane(s) .................. Volatile Dichloromethane .................. Volatile_........._,

Dichlorophenoxy.acetic acid.... Extractable/A_. ......... . Dichloropropanol ................. Extractable/BN ....... -

2,4-Dimothyphenol ................._ Extrctabl/A .. .

Dinitrobenzne ................. ... ... Extractable/BN ...... .. .

4,6-Dinotro-o-cresol.............. Extractable/A _............

2,4.Dinitrotoluene ........................ Exbactable/BN...---....

Endrin .................................... Extractabl/P .... _...........

Ethyl ether ............................... Volle...............

8.24 8.03 NSD

8.24 8.03 NSD

8.24 8.01 FID

8.24 8.03 NSD

8.24 8.02 PID

8.25 8.10 FID

8.25- 8.10 FlID

8.25 8.12 ECD

8.24 8.01 HSD

8.25 - 8.12 ECO

8.25 8.10 RD

8.24 8.01 HSD

8.24 8.01 HSD

8.24 8.01 HSD

8.24 8.01 HSD

8.24 8.01 HSD

8.25 8.08 HS0

8.25 8.08 ECO

8.25 8.08 HSD

8.24 8.01 "HSD

8.24 8.01 HSD.

8.02 PID

8.24 8.01 HSD

8.24 8.01 HSD

8.25 8.04 FID, ECD

8.25 8.10 FD 18.25 8.10 ECO

8.25 8.04 RD, ECO

8.25 8.04 FID. ECO

8.25- 8.01 HS0

8.02 PID

8.12 ECO

8.24 8.01 HSD

8.24 - 8.01 HSD

8.25 8.40 HSD

8.25 8.12 ECD

.8.25 8.04 FID, ECD

8.25 8.09 RD. ECD

8.25 8.04 RD, ECD

8.25 8.09 RD, ECD

8.25 8.08 HSD

8.24 8.01 FD

8.02 RD Formaldehyde ............................... Volatile ......... . 8.24 8.01 RD Formic acid ............................... Extractable/BN ................ 8.25 8.06 RD

Heptachlor ........................... Exractable/P ........... _ .. 8.25 8.06 HSD

Hexachlorobenzne ............... Extractable/BN................. . 8.25 8.12 ECO

Hexachlorobutadiene . .......... Extractable/BN. ............ . 8.25 8.12 ECD

Hexachloroethane ................ Extractable/BN.. ........ 8.25 8.12 ECD H exachlorocyclopentadiene ...-... Exactable/8N_....... 8.25 8.12 ECD,,

Undane ...................................... Extiactable/P.......... 8.25 8.08 HSD'

Maloic anhdrde ..................... Extractable/BN..-.. 8.25 8.06 ECD. RD

Methanol... ..- ... Volate........ . 8.24 8.01 FID

Mothomyl.. ............... ............ Extractable/BN............... 8,32 (HPLC)_

Methyl othyj ketone................... Volatile..... .............. ... 8.25 8.01 RD 8.02 RD Methyl IsobWdy ketone-...._.... Volatile...__ __ 8.25 8.01 RD

8.02 FD Naphthalene ........................ .......... Extractable/BN_..; . ............ 8.25 8.10 RD

Napthoquinone ................................... _ -8.25 8.06 ECD, FID

- 8.09 RD Nitrobenzeno .............. .........- Extractable/BN....... 8.25 8.09 ECD, RD 4-Nitrophenl .............................. Exlractable/A . .... ......... 8.24 8.04 ECD, RD

Paraldehyde'(rtmer of Volatile. ................. ... 8.24 8.01 RD

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

Table 1.-- Ma Characteistics of Organic Chenra-S-Continued

ComPnd SaWle hnAV No*G C ______

class/fraction methods COMWeno

GC/MS GIC Deector

Pentachloopol - Extractbl/A,__ 8.25

Phenol- ......... Extractable/A 8.25

Phorate Extractable/BN _ Phosphorodtioic acid esters__ Extractable/BN _

Phthafic antoide ExtraCtable/N__ _ 8.25

2-Pcon,'_ Exractable/BN__ 8.25

Pid.ine ExtractableBN__ 8.25

Tetrachorobenzenes) - ExtractableBN_ _ _825

Tetrachloroethane(s) _ Volatile .... 8.24

Tetrachoroethenr Volati1e_24__ 824

Tetrachorophenol Extractable/A ,,8.24

Toluene ..... &Volatile_8.24

Te deaian_ ExlractabBN _ 8.25

Toluene disocyanate(s) - Extractble/noeaqueos- -- am825

Toxaphene ExkactabWP ,,,8.25

Trichroethane_ Volatile 824

Trichloroethene(s) Volatie ... - 8.24

Trichloofluoromethane - Volatil - 8.24

Trichioropheno(s) - Extractable/A_____ ____ 8.25

2.4,5-TP (Sivex) Extractable/A__ 8.25

Trichioropropane Volatile -__ 8.24

vaiyt chloide Volatile 8.24

Virylidene chlorid Volatle - 8.24

Xylene Volatile ....._8.24

&04

8.22 - 8.06

8.22

8.06

8.00

8.06

8.01

8.02

8.06

8.06

8.01

8.01

8.04

8.40

8.101

8.01

8.02

Eco

ECM. FO

FPO

ECO, PlO

ECo. plO

FPO

ECO, no ECO. FlO ECD, Flo

ECD, FID

ECO

HFO

HSO

ECO

NO

Flo

HSO

HSO

HSO

HSO

HSO

HSO

HSO

HSO

Pxo

'Analyze for phenanthrene and carbazole; if these are present in a ratio between 1.4:1 and 5:1, crootle ahoudd be consd

ered present. -

ECO = Electron capture detetor RD - Flame lotazb5on detector FPD - Flame pholomeft detector HSD - Halde

specific detector. HPLC = KOg pressre liqid chromoWrapty NSO - Ntogn-,pcic dect. PIO - Phocohtion de.

lector.

Table 2-Anal'/alnd Charactesbcs of Inorgaic Species

Speces Sample had class measroment lec A Mehod

Antimony Digestion Atomic absorbtlon-hrniaeiam e8 50

Arseni ...... Hydride Atomic aborblon-Flme 8.51

Barkrn Igestion Atomic ab eoton-fx nce/fam 8.52

Ca dn. .Digestion , Atomic &bso__on~fnac m 8.53

CtvoiumDigestioni Atomic abctlnIwaelime85

Cyarde Hydrot'ai Atomic aborbtloncop &W

Lead Diges.tion. Atomic aboeobtion-nmace/flame - 8.58

Meecixy Cold Vapor - Atomic abeibtlon 8.57

Nickel Dgestion Atomic b6lm 8.5

,,mHydride digestion - Atomic ab tlme _ 8.5

Siver Digestion Atomic abaocbtl-nnc/1e __00

Table 3.-Sample Preparlon/Sample IntMxtion

Tedniques

Physical characteristics of waste'

Sample

handFrg class

Fid Paste Sold

Voltte - Prge and Purge and Headopace.

trap- trap.

Direct Headspace.

ioecton.

Sen*ivolstie Direct Shake out -. Shake out.

and injection. Soxhlet.

nonvolatile. Shake out._ Soncalon.

Inorga __ Dect

in-tin

Dges Digestiont Digestion.

Hydrde_ Hsde__ Hde.

'For purposes of this Table. Iuid refers to readliy Porable

Nquids wich may or may not contain suspended pauicmes

Pasteke raterials. whie flid in the soen of flowabaty. can

be thought of as beig thixotropic or plastic in nate, e.g.

pa-. Solid materials are those wastes which can be handled %ihout a container (Le., can be pied up without appreclable sagging).

Procedure and Method Number(s)

Digestion-See appropriate procedure for

element of interest.

Direct injection--8.80

Headspace-&82

Hydride--See appropriate procedure for

element of interest.

Purge & Trap--8.83

Shake out--8.84

Sonication--8.85

Soxhlet--8.88

Appendx VlL-&ss kfirLf -Heanaro( Wastes

EPA

hazadou Hazardous consiuarfti for wtich listed wla NO.

FW1- letachroetvy4ene metryfane chloid tichloro jfw cchxo rita:sor

ost . ,1,1rk oIt6ta -ti.t -

F002- lair yn methane c de iclor

oF0h0__. .i)e.cbenneN.1.2fhoO1-kratn. - dchikroberm".

F= - N-A

F004- cracok and crae~ic ac4d rIfrctercia

F0= - malw)nL foka. mek etI ke.

R06O cm*r chre md cyanide -

F00 _ (-af)

FRO __ cyar (at)

FOlo- cyanide (saIIIs)

FOiO.__ conide(sail) F012- cyanide (sails

F013-.4, cyaa-e(CO.plexed)

F03...... cai.cnl.axad o m~

F014- cyeide(comraxd

F05S......._ cyanide (saldt)

F016...... clanidef(crOplaed)

K001-.... benrane. berci(a~argwce barrro(aXp~jrane

cixysgns. 4-n l~uW -AW

phano 2-chcropivnol. Z4-deet'fl pienol.

2.4.&.ilrlhrophanoL. paetfropl-col 4.6-

K002- KO04__ chromim Seedckior'ehaol

K0 cronmit m lad

K004- drootmn

K005-. dno nm lead

K<0 __ dson~m

KO0- ctoroon . d

11 m-y choride. paraehye. lmrc add

lf0O10-... cicrolorm. looicenlahde. metylan chloride.

N x4 pa . b ac4

Mj1 acrylon~fl. acaonirile. hyckoclanic acid

X012. acrylorikie acelorie. acroleinacryianida

K013-..... hyckocyaric acdd. acryorbii.. acaicuimle

K014-..... acalorikie. acryfanide

K015. banryl chloride. chlorcbanzme. lok.e, bermoKOI....6.. hclrobenzene. aducciiee

carbon aodrcid. det hwtachioroethane; Perchl.etydene. c

esaw and beg (2.chlreh ethersi. kictioropropanachioppanots

buldenhaedorobeauane

KIO.......0 e- o 1,1e 1,1,2-

tcttiane. takachlcothanea (1.1,.24- airoetiand 1.1.).

-ihocbl. letachlro-m carbon

ltkadckido. chkrolcnll .;.A diceide. .-. yr drne cicid

33131
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

Appendix VIL.-Basis for Lisfing Hazardous

Wastes-Continued -

EPA

hazardous Hazardous constituents for which listed

waste No.

K020 .......... eyne dichloride, 1.1,1-trichloroethane, 1,1,2-

ichloroothane. tetrachloroethanes (1.1,2.2-tetradhloroethane and 1.1,1.2-tetrachloroethane),

trichloroethylene. tetrachloroethyfene. carbon

tetrachloride, chloroform, vinyl chloride. vinyli.

dene chloride

K021 .......... antimony, carbon tetrachloride. chloroform

K022 .......... phenol, tars (polycyctic aromatic hydrocarbons)

K023 .......... phlhaic anahydrido. maleic anhydride

K024 ...... phthalic anhydride, polynuclear tar~like materials,

naphthoquinone

K025 .......... meta-dinilrobenzene. 2.4-dinitrotoluene

K026 .......... paradehyde, pyridines. 2-picoline

K027 ...... toulone dilsocyanate. toluene-2.4-diamine, tars

(benzidimidazapone)

K028 . 1,1,1-trichloroethane, vinyl chloride K029 .......... 1,2.-dichloroethane. 1.1,1-trichloroethane, vinyl

chloride, vinlyldene chloride, chloroform

K030 .......... heachlorobenzene, hexachlorobutadine, hexachloroethane, 1,1,1,2-tetrachloroethane.

1 .l2,2-tetrachloroethane, ethylene dichloride

K031 .......... arsenic

K032 .......... hexachlorocyclopentadiene

K033 .......... hexachlorocyclopentadiene

K034 .......... hexachlorocyclopentadiene

K035 .......... crdsote, benz(a)anthracen, benz(b)luoroanthene. benzo(a)pyrene

K036 .......... toulene, phosphorodilhioic and phosphorothioic

acid esters

K037 .. loulene, phosphorodithioic and phosphorothiolc

acid esters "

K038 .......... phorate, formaldehyde, phosphorodithioic and

phosphorothloic acid esters

K039.....-. phosphorodithioic and phosphorothloic acid

esters

K040........ phorate, formaldehyde, phosphorodithoic and

p.hosphorothoic acid esters

K041 ... tosaphone

K042 .......... heXtachlorobenzene; ortho-dichlorobenzene

K043..... 2.4-dichlorophenol, 2.6-dichlorophenol. 2.4.6-

ttichlorophenol

K044...... NA

K045 ... NA

K046..:..... lead

K047 ... NA

K048...... chromium, lead

K049 .......... chromium, lead

K050 .......... chromium

K051.....;.. chromium, lead

K052..... lead

K053..... chromium

K054......... chromium

K055 ........ chromium, lead

K056... chromium, lead

K057 .......... chrpmium, lead

K058 .......... chromium, lead

K059 ... NA

K060 .......... cyanide, naphthalene, phenolic compounds, arsenic

K061..... chromium, lead, cadmium

K062 .......... chromium, lead

K063 .......... chromium, lead

K064...... lead, cadmium

K065.... lead, cadmium •

K066 .. lead cadmium

K067... lead, cadmium

K068 .......... lead, cadmium

K069...... chromium, lead, cadmium

NA-Waste Is hazardous because it meets either the

Ignitability. corrosivity or reactivity characteristic.

Appendix III-Hazardous Constituents

Acetaldehyde

(Acetato)phenylmercury

Acetonitrilef

3-(alpha-Acetonylbenzyl)-4-hydroxycoumarin

and salts

2-Acetylaminofluorene

Acetyl chloride

1-Acetyl-2-thiourea

Acrolein

Acrylamide

Acrylonitrile

Aflatoxins

Aldrin

Allyl alcohol

Aluminum phosphide

4-Aminobiphenyl -

6-Amino-l,la,2,8,8a,8b-hexahydro-8-

(hydroxymethyl)-8a-methoxy-5-

methylcarbamate azirino(2',3':3,4)

pyrrolo(1,2-a)indole-4,7-dione (ester)

(Mitomycin C)

5-(Aminomethyl]-3-isoxazolol

4-Aminopyridine

Amitrole

Antimony and compounds, N.O.S.5

Aramite

Arsenic and compounds, N.O.S.

Arsenic acid

Arsenic pentoxide

Arsenic trioxide

Auramine

Azaserine

Barium and compounds, N.O.S.

Barium cyanide

Benz[c]acridine

Benz[alanthracene

Benzene

Benzenearsonic acid

Benzenethiol

Benzidine "

Benzo[a]anthracene

Benzo[b]fluoranthene

Benzoojlfluoranthene

Benzo[ajpyrene

Benzotrichloride

Benzyl.chloride

Beryllium and compounds, N.O.S.

Bis( -chloroethoxy)methane

Bis(2-chloroethyl) ether

N,N-Bis(2-chloroethyl)-2-naphthylamine

Bis(2-chloroisopropyl ether

Bisfchloromethyl) ether

Bis(2-ethylhexyl) phthalate

Bromoacetone

Bromomethane

4-Bromophenyl phenyl ether

Brucine

2-Butanone peroxide

Butyl benzyl phthalate

2-s ec-Butyl-4,6-dinitrophenol (DNBP)

Cadmium and compounds, N.O.S.

Calcium chromate

Calcium cyanide

Carbon disulfide

Chiorambucil

Chlordane (alpha and gamma isomers)

Chlorinated benzenes, N.O.S.

Chlorinated ethane, N.O.S.

Chlorinated naphthalene, N.O.S.

Chlorinated phenol, N.O.S.

Chloroacetaldehyde

Choroalkyl ethers

p-Chloroaniline

Chlorobenzene

Chlorobenzilate

1-(p-Chlorobenzoyl)-5-methoxy-2-

methylindole-3-acetic acid

p-Chloro-m-cresol

1-Chloro-2,3-epoxybutane

2-Chloroethyl vinyl ether

Chloroform

ChIoromethane

Choromethyl methyl ether

2-Chloronaphthalene

'The abbreviation N.O.S. signifies those members

of the general class "not otherwise specified" by name in this listing. ,

2-Chlorophenol

1-(o-Chlorophenyl)thiouirea

3-Chloropropionitrile

alpha-Chlorotoluene

Chlorotoluene, N.O.S.

Chromium and compounds, N.O.S.

Chrysene

Citrus red No. 2

Copper cyanide

Creosote

Crotonaldehyde

Cyanides (soluble salts and complexes),

N.O.S,

Cyanogen

Cyanogen bromide

Cyanogen chloride

Cycasin

2-Cyclohexyl-4,6-dinitrophenol

Cyclophosphamide

Daunomycin

DDD

DDE

DDT

Diallate

Dibenz[a,h]acridine

Dibenz[a,j]acridine

Dibenz[a,h]anthracene(Dibenzo[a,h

anthracene)

7H-Dibenzo[c,g]carbazole

Dibenzo[ao]pyrene

Dibenzo[a,h]pyrene

Dibenzo[a,ilpyrene

1,2-Dibromo-3-chloropropane

1,2-Dibromoethane

Dibromomethane

Di-n-butyl phthalate

Dichlorobenzene, N.O.S,

3,3'-Dichlorobenzidine

1,1-Dichloroethane

1,2-Dichloroethne

trans-1,2-Dichloroethane

Dichloroethylene, N.O.S.

1,1-Dichloroethylene

Dichloromethane

2,4-Dichlorophenol

2,6-Dichlorophenol

2,4-Dichlorophenoxyacetic acid (2,4-D)

Dichloropropane

Dichlorophenylarsine

1,2-Dichloropropane

Dichloropropanol, N.O.S.

Dichloropropene, N.O.S.

1,3-Dichloropropene

Dieldrin

Diepoxybutane

Diethylarsine

O,O-Diethyl-S-(2-ethylthio)ethyl ester of

phosphorothioic acid

1,2-Diethylhydrazine

a,o-Diethyl-S-methylester phosphorodithloic

acid

0,0-Diethylphosphoric acid, 0-p-nttrophonyl

ester

Diethyl phthalate

,O-Diethyl--(2-pyrazinyliphosphorothioato

Diethylstilbestrol

Dihydrosafrole

3,4-Dihydroxy-alpha-(methylamino)-mothyl

benzyl alcohol

Di-isopropylfluorophosphate (DFP)

Dimethoate

3,3'-Dimethoxybenzidine

p-Dimethylaminoazobenzene

7,12-Dimethylbenz[alanthracene

3,3'-Dimethylbenzidine

•Dimethylcarbamoyl chloride

33132
Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

1,1-Dimethylhydrazine

1,2-Dimethylhydrazine

3,3-Dimethyl-l-(methylthio)-2-butanone-0-

((methylamino) carbonyl)oxime

Dimethylnitrosoamine

alpha.alpha-Dimethylphenethylamine

2,4-Dimethylphenol

Dimethyl phthalate

Dimethyl sulfate

Dinitrobenzene, N.O.S.

4,6-Dinitro-o-cresol and salts

2,4-Dinitrophenol

2,4-Dinitrotoluene

2,&Dinitrotoluene Di-n-octyl phthalate

1,4-Dioxane

1,2-Diphenylhydrazine

Di-n-propylnitrosamine

Disulfoton

2,4-Dithiobiuret

Endosulfan

Endrin and metabolites

EpichIorohydrin

Ethyl cyanide

Ethylene diamine

Ethylenebisdithiocarbamate (EBDC)

Ethyleneimine

Ethylene oxide Ethylenethiourea

Ethyl methanesulfonate

Fluoranthene

Fluorine

2-Fluoroacetamide

Fluoroacetic acid, sodium salt

Formaldehyde

Glycidylaldehyde

Halomethane, N.O.S.

Heptachlor

Heptachlor epoxide (alpha, beta, and gamma

isomers)

Hexachlorobenzene

Hexachlorobutadiene

Hexachlorocyclohexane (all isomers)

Hexachlorocyclopentadiene

Hexachloroethane

1,2,3,4,10,10-Hexachloro-1,4,4a,5.8,8ahexahydro-1,4:5,8-endoendodimethanonaphthalene

Hexachlorophene

Hexachloropropene

Hexaethyl tetraphosphate

Hydrazine

Hydrocyanic acid

Hydrogen sulfide

Indeno(1,2,3-c,dJpyrene

Iodomethane

Isocyanicacid, methyl ester

Isosafrole

Kepone

Lasiocarpine

Lead and compounds, N.O.S.

Lead acetate

Lead phosphate

Lead subacetate

Maleic anhydride

Malononirile

Melphalan

Mercury and compounds, N.O.S.

Methapyrilene

Methomyl

2-Methylaziridine

3-Methylcholanthrene

4,4 -Methylene-bis-(2-chloroaniline

Methyl ethyl ketone (MEK

Methyl hyirazine

2-Methyllactonitrile

Methyl methacrylate

Methyl methanesulfonate

2-Methyl-2-(methylthio)proplonaldehyde.o-

(methylcarbonyl) oxime

N-Methyl-N'-nitro-N-nitrosoguanldine

Methyl parathion

Methylthiouracil

Mustard gas

Naphthalene

1,4-Naphthoquinone

1-Naphthylamine

2-Naphthylamine

1-Naphthyl-2-thiourea

Nickel and compounds, N.O.S.

Nickel carbonyl

Nickel cyanide

Nicotine and salts

Nitric oxide

p-Nitroaniline

Nitrobenzene

Nitrogen dioxide

Nitrogen mustard and hydrochloride salt

Nitrogen mustard N-oxide and hydrochloride

salt

Nitrogen peroxide

Nitrogen tetroxide

Nitroglycerine

4-Nitrophenol

4-Nitroquinoline-1-oxide

Nitrosamine. N.O.S.

N-Nitrosodi-N-butylamine

N-Nitrosodiethanolamine

N-Nitrosodiethylamine

N-Nitrosodimethylamine

N-Nitrosodiphenylamine

N-Nitrosodi-N-propylamine

N-Nitroso-N-ethylurea

N-Nitrosomethylethylamine

N-Nitroso-N-methylurea

N-Nitroso-N-methylurethane

N-Nitrosomethylvinylamine

N-Nitrosomorpholine

N-Nitrosonornicotine

N-Nitrosopiperidine

N-Nitrosopyrrolidine

N-Nitrososarcosine

5-Nitro-o-toluidine

Octamethylpyropbosphoramide

Oleyl alcohol condensed with 2 moles

ethylene oxide

Osmium tetroxide

7-Oxabicyclo[Z2,1]heptane-2,3-dlcarboxylic

acid

Parathion

Pentachlorobenzene

Pentachloroethane

Pentachloronitrobenzene (PCNB)

Pentacholorophenol

Phenacetin

Phenol

Phenyl dichloroarsine

Phenylmercury acetate

N-Phenylthiourea

Phosgene

Phosphine

Phosphorothioic acid, 0,0-dimethyl ester, 0-

ester with N.N-dimethyl benzene

sulfonamide

Phthalic acid esters, N.O.S.

Phthalic anhydride

Polychlorinated biphenyl. N.O.S.

Potassium cyanide

Potassium silver cyanide

Pronamide

1.2-Propanediol

1,3-Propane sVltone

Propionitrile

Propylthiouracil

2-Propyn-l-ol

Pryidine

Reserpine

Saccharin

Safrole

Selenious acid

Selenium and compounds. N.O.S.

Selenium sulfide

Selenourea

Silver and compounds, N.O.S.

Silver cyanide

Sodium cyanide

Streptozotocin

Strontium sulfide

Strychnine and salts

,.4.5-Tetrachlorobenzene

Z3,7.8-Tetrachlorodibenzo-p-dioxin (TCDD]

Tetrachloroethane N.O.S.

1.1,1,2-Tetrachloroethane

1,1.2,2-Tetrachloroethane

Tetrachioroethene (Tetrachloroethylene)

Tetrachloromethane

2,3,4.6-Tetrachlorophenol

Tetraethyldithiopyrophosphate

Tetraethyl lead

Tetraethylpyrophosphate

Thallium and compounds. N.O.S.

Thallic oxide

Thallium () acetate

Thallium (I) carbonate

Thallium (I) chloride

Thallium [I nitrnte

Thallium selenite

Thallium (I) sulfate

Thloaceamide

Thiosemicarbazide

Thiourea

Thluram -

Toluene

Toluene diamine

o-Toluidine hydrochloride

Tolylene diisocyanate

Toxaphene

Tribromomethane

124-Trichlorobenzene

1,1,1-Trichloroethane

1.1,2-Trichloroethane

Trichloroethene (Trichloroethylene

Trichloromethanethial

2,4,5-Trichlorophenol

2,4.6-Trichlorophenol

24.5-Trichlorophenoxyacetic acid (2,4,5-q

2.4.5-Tricblorophenoxypropianic acid (2,4.5-

TP) (Silvex)

Trichloropropane. N.O.S.

1,2,3-Trichloropropane

0.0.0-Triethyl phosphorothioate

Trinitrobenzene

Tris(i-azridinyl)phosphine sulfide

Tris[2,3-dibromopropyl) phosphate

Trypan blue

Uracil mustard

Urethane

Vanadic acid. ammonium salt

Vanadium pentoxide (dust)

Vinyl chloride

Vinylidene chloride

Zinc cyanide

Zinc phosphide

[WR Dm. W-14= Pikd 5.-m&4s aml

BILING CODE 66-01-,

33133