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Regulation Information Page 1 of 22
§261.4 Exclusions.
(a) Materials which are not solid wastes. The following materials are not solid wastes for the
purpose of this part:
(a)(1) (i) Domestic sewage; and
(a)(1)(ii) Any mixture of domestic sewage and other wastes that passes through a sewer
system to a publicly -owned treatment works for treatment. "Domestic sewage" means
untreated sanitary wastes that pass through a sewer system.
(a)(2) Industrial wastewater discharges that are point source discharges subject to regulation
under section 402 of the Clean Water 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 before
discharge, nor does it exclude sludges that are generated by industrial wastewater
treatment.]
(a)(3) Irrigation return flows.
(a)(4) Source, special nuclear or by-product material as defined by the Atomic Energy Act of
1954, as amended, 42 U.S.C. 2011 et seq.
(a)(5) Materials subjected to in -situ mining techniques which are not removed from the
ground as part of the extraction process.
(a)(6) Pulping liquors (i.e., black liquor) that are reclaimed in a pulping liquor recovery
furnace and then reused in the pulping process, unless it is accumulated speculatively as
defined in §261.1(c) of this chapter.
(a)(7) Spent sulfuric acid used to produce virgin sulfuric acid, unless it is accumulated
speculatively as defined in §261.1(c) of this chapter.
(a)(8) Secondary materials that are reclaimed and returned to the original process or
processes in which they were generated where they are reused in the production process
provided:
(a)(8)(i) Only tank storage is involved, and the entire process through completion of
reclamation is closed by being entirely connected with pipes or other comparable enclosed
means of conveyance;
(a)(8)(ii) Reclamation does not involve controlled flame combustion (such as occurs in boilers,
industrial furnaces, or incinerators);
(a)(8)(iii) The secondary materials are never accumulated in such tanks for over twelve
months without being reclaimed; and
(a)(8)(iv) The reclaimed material is not used to produce a fuel, or used to produce products
that are used in a manner constituting disposal.
(a)(9) (i) Spent wood preserving solutions that have been reclaimed and are reused for their
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original intended purpose; and
(a)(9)(ii) wastewaters from the wood preserving process that have been reclaimed and are
reused to treat wood.
(a)(9)(ii!) Prior to reuse, the wood preserving wastewaters and spent wood preserving
solutions described in paragraphs (a)(9)(i) and (a)(9)(ii) of this section, so long as they meet
all of the following conditions:
(a)(9)(iii)(A) The wood preserving wastewaters and spent wood preserving solutions are
reused on -site at water borne plants in the production process for their original intended
purpose;
(a)(9)(iii)(B) Prior to reuse, the wastewaters and spent wood preserving solutions are
managed to prevent release to either land or groundwater or both;
(a)(9)(iii)(C) Any unit used to manage wastewaters and/or spent wood preserving solutions
prior to reuse can be visually or otherwise determined to prevent such releases;
(a)(9)(iii)(D) Any drip pad used to manage the wastewaters and/or spent wood preserving
solutions prior to reuse complies with the standards in part 265, subpart W of this chapter,
regardless of whether the plant generates a total of less than 100 kg/month of hazardous
waste; and
(a)(9)(iii)(E) Prior to operating pursuant to this exclusion, the plant owner or operator
prepares a one-time notification stating that the plant intends to claim the exclusion, giving
the date on which the plant intends to begin operating under the exclusion, and containing
the following language: "I have read the applicable regulation establishing an exclusion for
wood preserving wastewaters and spent wood preserving solutions and understand it requires
me to comply at all times with the conditions set out in the regulation." The plant must
maintain a copy of that document in its on -site records until closure of the facility. The
exclusion applies so long as the plant meets all of the conditions. If the plant goes out of
compliance with any condition, it may apply to the appropriate Regional Administrator or
state Director for reinstatement. The Regional Administrator or state Director may reinstate
the exclusion upon finding that the plant has returned to compliance with all conditions and
that the violations are not likely to recur.
(a)(10) EPA Hazardous Waste Nos. K060, K087, K141, K142, K143, K144, K145, K147, and
K148, and any wastes from the coke by-products processes that are hazardous only because
they exhibit the Toxicity Characteristic (TC).specified in section 261.24 of this part when,
subsequent to generation, these materials are recycled to coke ovens, to the tar recovery
process as a feedstock to produce coal tar, or mixed with coal tar prior to the tar's sale or
refining. This exclusion is conditioned on there being no land disposal of the wastes from the
point they are generated to the point they are recycled to coke ovens or tar recovery or
refining processes, or mixed with coal tar.
(a)(11) Nonwastewater splash condenser dross residue from the treatment of K061 in high
temperature metals recovery units, provided it is shipped in drums (if shipped) and not land
disposed before recovery.
(a)(12)(i) Oil-bearing hazardous secondary materials (i.e., sludges,
byproducts, or spent materials) that are generated at a petroleum refinery (SIC
code 2911) and are inserted into the petroleum refining process (SIC code 2911—
includi.ng, but not li.mi.ted to, di..sti.:L.la.t.i..on, catalytic cracking, fracti..onat.i..o.n,
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gasification (as defined in 40 CFR 260.10) or thermal cracking units (i.e.,
cokers)) unless the material is placed on the land, or speculatively
accumulated before being so recycled. Materials i_n.serted into thermal. cracking
units are excluded under this paragraph, provided that the coke product also
does not exhi.bi.t a characteristic of hazardous waste. Oil-bearing hazardous
secondary materials may be inserted into the same petroleum refinery where they
are generated, or sent directly to another petroleum refinery and still be
excluded under this provision. Except as provided in paragraph (a)(12)(ii) of
this section, oil-bearing hazardous secondary materials generated elsewhere in
the petroleum industry (i.e., from sources other than petroleum refineries) are
not excluded under this section_. Residuals generated from processing or
recycling materials excluded under this paragraph (a)(12)(i), where such
materials as generated would have otherwise met a listing under subpart D of
this part, are designated as F'037 listed wastes when disposed of or intended
for disposal. [Change Notice] [Previous Text]
(a)(12)(ii) Recovered oil that is recycled in the same manner and with the same conditions as
described in paragraph (a)(12)(i) of this section. Recovered oil is oil that has been reclaimed
from secondary materials (including wastewater) generated from normal petroleum industry
practices, including refining, exploration and production, bulk storage, and transportation
incident thereto (SIC codes 1311, 1321, 1381, 1382, 1389, 2911, 4612, 4613, 4922, 4923,
4789, 5171, and 5172.) Recovered oil does not include oil-bearing hazardous wastes listed in
subpart D of this part; however, oil recovered from such wastes may be considered recovered
oil. Recovered oil does not include used oil as defined in 40 CFR 279.1.
(a)(13) Excluded scrap metal (processed scrap metal, unprocessed home scrap metal, and
unprocessed prompt scrap metal) being recycled.
(a)(14) Shredded circuit boards being recycled provided that they are:
(a)(14)(i) Stored in containers sufficient to prevent a release to the environment prior to
recovery; and
(a)(14)(ii) Free of mercury switches, mercury relays and nickel -cadmium batteries and lithium
batteries.
(a)(15) Condensates derived from the overhead gases from kraft mill steam strippers that are
used to comply with 40 CFR 63.446(e). The exemption applies only to combustion at the mill
generating the condensates.
(a)(16) Comparable fuels or comparable syngas fuels (i.e., comparable/syngas fuels) that
meet the requirements of §261.38.
(a)(17) Spent materials (as defined in §261.1) (other than hazardous wastes listed in subpart
D of this part) generated within the primary mineral processing industry from which minerals,
acids, cyanide, water, or other values are recovered by mineral processing or by
beneficiation, provided that:
(a)(17)(i) The spent material is legitimately recycled to recover minerals, acids; cyanide,
water or other values;
(a)(17)(ii) The secondary material is not accumulated speculatively;
(a)(17)(iii) Except as provided in paragraph (a)(17)(iv) of this section, the spent material is
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stored in tanks, containers, or buildings meeting the following minimum integrity standards: a
building must be an engineered structure with a floor, walls, and a roof all of which are made
of non -earthen materials providing structural support (except smelter buildings may have
partially earthen floors provided the secondary material is stored on the non -earthen portion),
and have a roof suitable for diverting rainwater away from the foundation; a tank must be
free standing, not be a surface impoundment (as defined in 40 CFR 260.10), and be
manufactured of a material suitable for containment of its contents; a container must be free
standing and be manufactured of a material suitable for containment of its contents. If tanks
or containers contain any particulate which may be subject to wind dispersal, the
owner/operator must operate these units in a manner which controls fugitive dust. Tanks,
containers, and buildings must be designed, constructed and operated to prevent significant
releases to the environment of these materials.
(a)(17)(iv) The Regional Administrator or State Director may make a site -specific
determination, after public review and comment, that only solid mineral processing spent
material may be placed on pads rather than tanks containers, or buildings. Solid mineral
processing spent materials do not contain any free liquid. The decision -maker must affirm
that pads are designed, constructed and operated to prevent significant releases of the
secondary material into the environment. Pads must provide the same degree of containment
afforded by the non-RCRA tanks, containers and buildings eligible for exclusion.
(a)(17)(A) The decision -maker must also consider if storage on pads poses the potential for
significant releases via groundwater, surface water, and air exposure pathways. Factors to be
considered for assessing the groundwater, surface water, air exposure pathways are: The
volume and physical and chemical properties of the secondary material, including its potential
for migration off the pad; the potential for human or environmental exposure to hazardous
constituents migrating from the pad via each exposure pathway, and the possibility and
extent of harm to human and environmental receptors via each exposure pathway.
(a)(17)(B) Pads must meet the following minimum standards: Be designed of non -earthen
material that is compatible with the chemical nature of the mineral processing spent material,
capable of withstanding physical stresses associated with placement and removal, have run
on/runoff controls, be operated in a manner which controls fugitive dust, and have integrity
assurance through inspections and maintenance programs.
(a)(17)(C) Before making a determination under this paragraph, the Regional Administrator
or State Director must provide notice and the opportunity for comment to all persons
potentially interested in the determination. This can be accomplished by placing notice of this
action in major local newspapers, or broadcasting notice over local radio stations.
(a)(17)(v) The owner or operator provides notice to the Regional Administrator or State
Director providing the following information: The types of materials to be recycled; the type
and location of the storage units and recycling processes; and the annual quantities expected
to be placed in land -based units. This notification must be updated when there is a change in
the type of materials recycled or the location of the recycling process.
(a)(17)(vi) For purposes of paragraph (a)(7) of this section, mineral processing spent
materials must be the result of mineral processing and may not include any listed hazardous
wastes. Listed hazardous wastes and characteristic hazardous wastes generated by non -
mineral processing industries are not eligible for the conditional exclusion from the definition
of solid waste.
(a)(18) Petrochemical recovered oil from an associated organic chemical manufacturing
facility, where the oil is to be inserted into the petroleum refining process (SIC code 2911)
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along with normal petroleum refinery process streams, provided:
(a)(18)(1) The oil is hazardous only because it exhibits the characteristic of ignitability (as
defined in §261.21) and/or toxicity for benzene (§261.24, waste code D018); and
(a)(18)(ii) The oil generated by the organic chemical manufacturing facility is not placed on
the land, or speculatively accumulated before being recycled into the petroleum refining
process. An "associated organic chemical manufacturing facility" is a facility where the
primary SIC code is 2869, but where operations may also include SIC codes 2821, 2822, and
2865; and is physically co -located with a petroleum refinery; and where the petroleum
refinery to which the oil being recycled is returned also provides hydrocarbon feedstocks to
the organic chemical manufacturing facility. "Petrochemical recovered oil" is oil that has been
reclaimed from secondary materials (i.e., sludges, byproducts, or spent materials, including
wastewater) from normal organic chemical manufacturing operations, as well as oil recovered
from organic chemical manufacturing processes.
(a)(19) Spent caustic solutions from petroleum refining liquid treating processes used as a
feedstock to produce cresylic or naphthenic acid unless the material is placed on the land, or
accumulated speculatively as defined in §261.1(c).
(a)(20) Hazardous secondary materials used to make zinc fertilizers, provided that the
following conditions specified are satisfied:
(a)(20)(i) Hazardous secondary materials used to make zinc micronutrient fertilizers must not
be accumulated speculatively, as defined in §261.1(c)(8).
(a)(20)(ii) Generators and intermediate handlers of zinc -bearing hazardous secondary
materials that are to be incorporated into zinc fertilizers must:
(a)(20)(ii)(A) Submit a one-time notice to the Regional Administrator or State Director in
whose jurisdiction the exclusion is being claimed, which contains the name, address and EPA
ID number of the generator or intermediate handler facility, provides a brief description of the
secondary material that will be subject to the exclusion, and identifies when the manufacturer
intends to begin managing excluded, zinc -bearing hazardous secondary materials under the
conditions specified in this paragraph (a)(20).
(a)(20)(ii)(B) Store the excluded secondary material in tanks, containers, or buildings that
are constructed and maintained in a way that prevents releases of the secondary materials
into the environment. At a minimum, any building used for this purpose must be an
engineered structure made of non -earthen materials that provide structural support, and
must have a floor, walls and a roof that prevent wind dispersal and contact with rainwater.
Tanks used for this purpose must be structurally sound and, if outdoors, must have roofs or
covers that prevent contact with wind and rain. Containers used for this purpose must be kept
closed except when it is necessary to add or remove material, and must be in sound
condition. Containers that are stored outdoors must be managed within storage areas that:
(1) have containment structures or systems sufficiently impervious to contain leaks, spills and
accumulated precipitation; and
(2) provide for effective drainage and removal of leaks, spills and accumulated precipitation;
and
(3) prevent run-on into the containment system.
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(a)(20)(ii)(C) With each off -site shipment of excluded hazardous secondary materials, provide
written notice to the receiving facility that the material is subject to the conditions of this
paragraph (a)(20).
(a)(20)(ii)(D) Maintain at the generator's or intermediate handlers's facility for no less than
three years records of all shipments of excluded hazardous secondary materials. For each
shipment these records must at a minimum contain the following information:
(1) Name of the transporter and date of the shipment;
(2) Name and address of the facility that received the excluded material, and documentation
confirming receipt of the shipment; and
(3) Type and quantity of excluded secondary material in each shipment.
(a)(20)(iii) Manufacturers of zinc fertilizers or zinc fertilizer ingredients made from excluded
hazardous secondary materials must:
(a)(20)(iii)(A) Store excluded hazardous secondary materials in accordance with the storage
requirements for generators and intermediate handlers, as specified in paragraph (a)(20)(ii)
(B) of this section.
(a)(20)(iii)(B) Submit a one-time notification to the Regional Administrator or State Director
that, at a minimum, specifies the name, address and EPA ID number of the manufacturing
facility, and identifies when the manufacturer intends to begin managing excluded, zinc -
bearing hazardous secondary materials under the conditions specified in this paragraph (a)
(20).
(a)(20)(iii)(C) Maintain for a minimum of three years records of all shipments of excluded
hazardous secondary materials received by the manufacturer, which must at a minimum
identify for each shipment the. name and address of the generating facility, name of
transporter and date the materials were received, the quantity received, and a brief
description of the industrial process that generated the material.
(a)(20)(iii)(D) Submit to the Regional Administrator or State Director an annual report that
identifies the total quantities of all excluded hazardous secondary materials that were used to
manufacture zinc fertilizers or zinc fertilizer ingredients in the previous year, the name and
address of each generating facility, and the industrial process(s) from which they were
generated.
(a)(20)(iv) Nothing in this section preempts, overrides or otherwise negates the provision in
Sec. 262.11 of this chapter, which requires any person who generates a solid waste to
determine if that waste is a hazardous waste.
(a)(20)(v) Interim status and permitted storage units that have been used to store only zinc -
bearing hazardous wastes prior to the submission of the one-time notice described in
paragraph (a)(20)(ii)(A) of this section, and that afterward will be used only to store
hazardous secondary materials excluded under this paragraph, are not subject to the closure
requirements of 40 CFR Parts 264 and 265.
(a)(21) Zinc fertilizers made from hazardous wastes, or hazardous secondary materials that
are excluded under paragraph (a)(20) of this section, provided that:
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(a)(21)(i) The fertilizers meet the following contaminant limits:
(a)(21)(i)(A) For metal contaminants:
,Constituent
Maximum Allowable Total Concentration in
Fertilizer, per Unit 1% of Zinc m
._
_..-.
�=Chromw.um sue°
7 _
(a)(21)(i)(B) For dioxin contaminants the fertilizer must contain no more than eight (8) parts
per trillion of dioxin, measured as toxic equivalent (TEQ).
(a)(21)(ii) The manufacturer performs sampling and analysis of the fertilizer product to
determine compliance with the contaminant limits for metals no less than every six months,
and for dioxins no less than every twelve months. Testing must also be performed whenever
changes occur to manufacturing processes or ingredients that could significantly affect the
amounts of contaminants in the fertilizer product. The manufacturer may use any reliable
analytical method to demonstrate that no constituent of concern is present in the product at
concentrations above the applicable limits. It is the responsibility of the manufacturer to
ensure that the sampling and analysis are unbiased, precise, and representative of the
product(s) introduced into commerce.
(a)(21)(iii) The manufacturer maintains for no less than three years records of all sampling
and analyses performed for purposes of determining compliance with the requirements of
paragraph (a)(21)(ii) of this section. Such records must at a minimum include:
(a)(21)(iii)(A) The dates and times product samples were taken, and the dates the samples
were analyzed;
(a)(21)(iii)(B) The names and qualifications of the person(s) taking the samples;
(a)(21)(iii)(C) A description of the methods and equipment used to take the samples;
(a)(21)(iii)(D) The name and address of the laboratory facility at which analyses of the
samples were performed;
(a)(21)(iii)(E) A description of the analytical methods used, including any cleanup and sample
preparation methods; and
(a)(21)(iii)(F) All laboratory analytical results used to determine compliance with the
contaminant limits specified in this paragraph (a)(21).
(a)(22) Used cathode ray tubes (CRTs)
(a)(22)(i) Used, intact CRTs as defined in §260.10 of this chapter are not solid wastes within
the United States unless they are disposed, or unless they are speculatively accumulated as
defined in §261.1(c)(8) by CRT collectors or glass processors.
(a)(22)(ii) Used, intact CRTs as defined in §260.10 of this chapter are not solid wastes when
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, exported for recycling provided that they meet the requirements of §261.40.
(a)(22)(iii) Used, broken CRTs as defined in §260.10 of this chapter are not solid.wastes
provided that they meet the requirements ,of §261.39.
(a)(22)(iv) Glass removed from CRTs is not a solid waste provided that it meets the
requirements of §261.39(c).
(b) Solid wastes which are not hazardous wastes. The following solid wastes are not
hazardous wastes:
(b)(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 material (including garbage, trash and sanitary wastes in septic tanks) derived
from households (including single and multiple residences, hotels and motels, bunkhouses,
ranger stations, crew quarters, campgrounds, picnic grounds and day -use recreation areas). A
resource recovery facility managing municipal solid waste shall not be deemed to be treating,
storing, disposing of, or otherwise managing hazardous wastes for the purposes of regulation
under this subtitle, if such facility:
(b)(1)(i) Receives and burns only
(b)(1)(i)(A) Household waste (from single and multiple dwellings, hotels, motels, and other
residential sources) and
(b)(1)(ii) Such facility does not accept hazardous wastes and the owner or operator of such
facility has established contractual requirements or other appropriate notification or inspection
procedures to assure that hazardous wastes are not received at or burned in such facility.
(b)(2) Solid wastes generated by any of the following and which are returned to the soils as
fertilizers:
(b)(2)(i) The growing and harvesting of agricultural crops.
(b)(2)(0) The raising of animals, including animal manures.
(b)(3) Mining overburden returned to the mine site.
(b)(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, except as provided by
§266.112 of this chapter for facilities that burn or process hazardous waste.
(b)(5) Drilling fluids, produced waters, and other wastes associated with the exploration,
development, or production of crude oil, natural gas or geothermal energy.
(b)(6) (i) Wastes which fail the test for the Toxicity Characteristic because chromium is
present or are listed in subpart D due to the presence of chromium, which do not fail the test
for the Toxicity Characteristic for any other constituent or are not listed due to the presence
of any other constituent, and which do not fail the test for any other characteristic, if it is
shown by a waste generator or by waste generators that:
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(b)(6)(i)(A) The chromium in the waste is exclusively (or nearly exclusively) trivalent
chromium; and
(b)(6)(i)(B) The waste is generated from an industrial process which uses trivalent chromium
exclusively (or nearly exclusively) and the process does not generate hexavalent chromium;
and
(b)(6)(i)(C) The waste is typically and frequently managed in non -oxidizing environments.
ates which meet th:e standard in pa ragrap.hs:_(b)(6):(i) (A}; (B).---and {G)?
xrez
of=fail t_he testfor tY�e toity ch_ar_a_cteristic for�any.�othi_er constituent.,
(b)(6)(ii)(A) Chrome (blue) trimmings generated by the following subcategories of the leather
tanning and finishing industry; hair pulp/chrome tan/retan/wet finish; hair save/chrome
tan/retan/wet finish; retan/wet finish; no beamhouse; through -the -blue; and shearling.
(b)(6)(ii)(B) Chrome (blue) shavings generated by the following subcategories of the leather
tanning and finishing industry: Hair pulp/chrome tan/retan/wet finish; hair save/chrome
tan/retan/wet finish; retan/wet finish; no beamhouse; through -the -blue; and shearling.
(b)(6)(ii)(C) Buffing dust generated by the following subcategories of the leather tanning and
finishing industry; hair pulp/chrome tan/retan/wet finish; hair save/chrome tan/retan/wet
finish; retan/wet finish; no beamhouse; through- the -blue.
(b)(6)(ii)(D) Sewer screenings generated by the following subcategories of the leather
tanning and finishing industry: Hair pulp/chrome tan/retan/wet finish; hair save/chrome
tan/retan/wet finish; retan/wet finish; no beamhouse; through -the -blue; and shearling.
(b)(6)(ii)(E) Wastewater treatment sludges generated by the following subcategories of the
leather tanning and finishing industry: Hair pulp/chrome tan/retan/wet finish; hair
save/chrome tan/retan/wet finish; retan/wet finish; no beamhouse; through -the -blue; and
shearling.
(b)(6)(ii)(F) Wastewater treatment sludges generated by the following subcategories of the
leather tanning and finishing industry: Hair pulp/chrome tan/retan/wet finish; hair
save/chrome tan/retan/wet finish; and through -the -blue.
(b)(6)(ii)(G) Waste scrap leather from the leather tanning industry, the shoe manufacturing
industry, and other leather product manufacturing industries.
(b)(6)(ii)(H) Wastewater treatment sludges from the production of TiO2 pigment using
chromium -bearing ores by the chloride process.
(b)(7) Solid waste from the extraction, beneficiation, and processing of ores and minerals
(including coal, phosphate rock, and overburden from the mining of uranium ore), except as
provided by §266.112 of this chapter for facilities that burn or process hazardous waste.
(b)(7)(i) For purposes of §261.4(b)(7) beneficiation of ores and minerals is restricted to the
following activities; crushing; grinding; washing,Ldiss€iI crystallization; filtration;
sorting; sizing; drying; sintering; pelletizing; briquetting; calcining to remove water and/or
carbon dioxide; roasting, autoclaving, and/or chlorination in preparation for leaching (except
where the roasting (and/or autoclaving and/or chlorination)/leaching sequence produces a
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final or intermediate product that does not undergo further beneficiation or processing);
gravity concentration; magnetic separation; electrostatic separation; flotation; ion exchange;
solvent extraction; electrowinning; precipitation; amalgamation; and heap, dump, vat, tank,
and in situ leaching.
(b)(7)(ii)(A) Slag from primary copper processing;
(b)(7)(ii)(B) Slag from primary lead processing;
w(b)(-�(i�i)_(C) Red�and=b`rown_rnuds from -bauxte.�refirii'ng
(b)(7)(ii)(D) Phosphogypsum from phosphoric acid production;
(b)(7)(ii)(E) Slag from elemental phosphorus production;
(b)(7)(ii)(F) Gasifier ash from coal gasification;
(b)(7)(ii)(G) Process wastewater from coal gasification;
(b)(7)(ii)(H) Calcium sulfate wastewater treatment plant sludge from primary copper
processing;
(b)(7)(ii)(I) Slag tailings from primary copper processing;
(b)(7)(ii)(3) Fluorogypsum from hydrofluoric acid production;
(b)(7)(ii)(K) Process wastewater from hydrofluoric acid production;
(b)(7)(ii)(L) Air pollution control dust/sludge from iron blast furnaces;
(b)(7)(ii)(M) Iron blast furnace slag;
(b)(7)(ii)(N) Treated residue from roasting/leaching of chrome ore;
(b)(7)(ii)(0) Process wastewater from primary magnesium processing by the anhydrous
process;
(b)(7)(ii)(P) Process wastewater from phosphoric acid production;
(b)(7)(ii)(q) Basic oxygen furnace and open hearth furnace air pollution control dust/sludge
from carbon steel production;
(b)(7)(ii)(R) Basic oxygen furnace and open hearth furnace slag from carbon steel production;
(b)(7)(ii)(S) Chloride process waste solids from titanium tetrachloride production;
(b)(7)(ii)(T) Slag from primary zinc processing.
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(b)(7)(iii) A residue derived from co -processing mineral processing secondary materials with
normal beneficiation raw materials or with normal mineral processing raw materials remains
excluded under paragraph (b) of this section if the owner or operator:
(b)(7)(iii)(A) Processes at least 50 percent by weight normal beneficiation raw materials or
normal mineral processing raw materials; and,
(b)(7)(iii)(B) Legitimately reclaims the secondary mineral processing materials.
(b)(8) Cement kiln dust waste, except as provided by §266.112 of this chapter for facilities
that burn or process hazardous waste.
(b)(9) Solid waste which consists of discarded arsenical -treated wood or wood products which
fails the test for the Toxicity Characteristic for Hazardous Waste Codes D004 through D017
and which is not a hazardous waste for any other reason if the waste is generated by persons
who utilize the arsenical- treated wood and wood products for these materials' intended end
use.
(b)(10) Petroleum -contaminated media and debris that fail the test for the Toxicity
Characteristic of §261.24 (Hazardous Waste Codes D018 through D043 only) and are subject
to the corrective action regulations under part 280 of this chapter.
(b)(11) Injected groundwater that is hazardous only because it exhibits the Toxicity
Characteristic (Hazardous Waste Codes D018 through D043 only) in §261.24 of this part that
is reinjected through an underground injection well pursuant to free phase hydrocarbon
recovery operations undertaken at petroleum refineries, petroleum marketing terminals,
petroleum bulk plants, petroleum pipelines, and petroleum transportation spill sites until
January 25, 1993. This extension applies to recovery operations in existence, or for which
contracts have been issued, on or before March 25, 1991. For groundwater returned through
infiltration galleries from such operations at petroleum refineries, marketing terminals, and
bulk plants, until [insert date six months after publication]. New operations involving injection
wells (beginning after March 25, 1991) will qualify for this compliance date extension (until
January 25, 1993) only if:
(b)(11)(i) Operations are performed pursuant to a written state agreement that includes a
provision to assess the groundwater and the need for further remediation once the free phase
recovery is completed; and
(b)(11)(ii) A copy of the written agreement has been submitted to: Characteristics Section
(OS-333), U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 20460.
(b)(12) Used chlorofluorocarbon refrigerants from totally enclosed heat transfer equipment,
including mobile air conditioning systems, mobile refrigeration, and commercial and industrial
air conditioning and refrigeration systems that use chlorofluorocarbons as the heat transfer
fluid in a refrigeration cycle, provided the refrigerant is reclaimed for further use.
(b)(13) Non-terne plated used oil filters that are not mixed with waste listed in Subpart D of
this part if these oil filters have been gravity hot -drained using one of the following methods:
(b)(13)(i) Puncturing the filter anti -drain back valve or the filter dome end and hot -draining;
(b)(13)(ii) Hot -draining and crushing;
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(b)(13)(iii) Dismantling and hot -draining; or
(b)(13)(iv) Any other equivalent hot -draining method which will remove used oil.
(b)(14) Used oil re -refining distillation bottoms that are used as feedstock to manufacture
asphalt products.
(b)(15) Leachate or gas condensate collected from landfills where certain solid wastes have
been disposed, provided that:
(b)(15)(1) The solid wastes disposed would meet one or more of the listing descriptions for
Hazardous Waste Codes K169, K170, K171, K172, K174, K175, K176, K177, K178 and K181
if these wastes had been generated after the effective date of the listing;
(b)(15)(ii) The solid wastes described in paragraph (b)(15)(i) of this section were disposed
prior to the effective date of the listing;
(b)(15)(iii) The leachate or;gas condensate do not exhibit any characteristic of hazardous
waste nor are derived from any other listed hazardous waste;
(b)(15)(iv) Discharge of the leachate or gas condensate, including leachate or gas condensate
transferred from the landfill to a POTW by truck, rail, or dedicated pipe, is subject to
regulation under sections 307(b) or 402 of the Clean Water Act.
(b)(15)(v) As of February 13, 2001, leachate or gas condensate derived from K169-K172 is
no longer exempt if it is stored or managed in a surface impoundment prior to discharge. As
of November 21, 2003, leachate or gas condensate derived from K176, K177, and K178 is no
longer exempt if it is stored or managed in a surface impoundment prior to discharge. After
February 26, 2007, leachate or gas condensate derived from K181 will no longer be exempt if
it is stored or managed in a surface impoundment prior to discharge. There is one exception:
if the surface impoundment is used to temporarily store leachate or gas condensate in
response to an emergency situation (e.g., shutdown of wastewater treatment system),
provided the impoundment has a double liner, and provided the leachate or gas, condensate is
removed from the impoundment and continues to be managed in compliance with the
conditions of this paragraph (b)(15)(v) after the emergency ends.
(b)(16) Sludges resulting from the treatment of wastewaters (not including spent plating
solutions) generated by the copper metallization process at the International Business
Machines Corporation (IBM) semiconductor manufacturing facility in Essex Junction, VT, are
exempt from the F006 listing, provided that:
(b)(16)(1) IBM provides the Agency with semi-annual reports (by January 15 and July 15 of
each year) detailing constituent analyses measuring the concentrations of volatiles, semi-
volatiles, and metals using methods presented in part 264, appendix IX of this chapter of
both the plating solution utilized by, and the rinsewaters generated by, the copper
metallization process;
(b)(16)(ii) IBM provides the agency with semi-annual reports (by January 15 and July 15 of
each year), through the year 2004, or when IBM has achieved its facility -wide goal of a 40%
reduction in greenhouse gas emissions from a 1995 base year (when normalized to
production), whichever is first, that contain the following:
(b)(16)(ii)(A) Estimated greenhouse gas emissions, and estimated greenhouse gas emission
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reductions. Greenhouse gas emissions will be reported in terms of total mass emitted and
mass emitted normalized to production; and
(b)(16)(ii)(B) The number of chemical vapor deposition chambers used in the semiconductor
manufacturing production line that have been converted to either low flow C2F6 or NF3 during
the reporting period and the number of such chambers remaining to be converted to achieve
the facility goal for global warming gas emission reductions.
(b)(16)(iii) No significant changes are made to the copper metallization process such that any
of the constituents listed in 40 CFR part 261, appendix VII as the basis for the F006 listing are
introduced into the process.
(b)(17) Solid waste that would otherwise meet the definition of low-level mixed wastes
(LLMW) pursuant to §266.210 of this chapter that is generated at the Ortho-McNeil
Pharmaceutical, Inc. (OMP Spring House) research and development facility in Spring House,
Pennsylvania and treated on -site using a bench -scale high temperature catalytic oxidation
unit is not a hazardous waste provided that:
(b)(17)(i) The total volume of LLMW generated and treated is no greater than 50 liters/year,
(b)(17)(ii) OMP Spring House submits a written report to the EPA Region III office once every
six months beginning six months after June 27, 2005, that must contain the following:
(b)(17)(ii)(A) Analysis demonstrating the destruction and removal efficiency of the treatment
technology for all organic components of the wastestream,
(b)(17)(ii)(B) Analysis demonstrating the capture efficiencies of the treatment technology for
all radioactive components of the wastestream and an estimate of the amount of radioactivity
released during the reporting period,
(b)(17)(ii)(C) Analysis (including concentrations of constituents, including inorganic
constituents, present and radioactivity) of the wastestream prior to and after treatment,
(b)(17)(ii)(D) Volume of the wastestream being treated per batch, as well as a total for the
duration of the reporting period, and
(b)(17)(ii)(E) Final disposition of the radioactive residuals from the treatment.of the
wastestream.
(b)(17)(iii) OMP Spring House makes no significant changes to the design or operation of the
high temperature catalytic oxidation unit or the wastestream.
(b)(17)(iv) This exclusion will remain in affect for 5 years from June 27, 2005.
(b)(18) By-products resulting from the production of automobile air bag gas generants at the
Autoliv ASP Inc. facility in Promontory Utah, (Autoliv) are exempt from the D003 listing, for a
period of five years from May 9, 2001, provided that:
(b)(18)(i) The by-product gas generants are processed on -site in Autoliv's Metal Recovery
Furnace (MRF).
(b)(18)(i)(A) By-product gas generants must only be fed to the MRF when it is operating in
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conformance with the State of Utah, Division of Air Quality's Approval Order DAQE-549-97.
(b)(18)(i)(B) Combustion gas temperature must be maintained below 400 degrees Fahrenheit
at the baghouse inlet.
(b)(18)(ii) Prior to processing in the MRF, the by-product gas generants are managed in
accordance with the requirements specified in 40 CFR 262.34.
(b)(18)(iii) The Autoliv facility and the MRF are operated and managed in accordance with the
requirements of 40 CFR Part 265, Subparts B, C, D, E, G, H, I, and O.
(b)(18)(iv) Residues derived from the processing of by-product gas generants in the MRF are
managed in accordance with the requirements specified in 40 CFR Parts 262 and 268.
(b)(18)(v) The following testing of the MRF's stack gas emissions is conducted:
(b)(18)(v)(A) An initial test shall be conducted within 30 operating days of starting feed of
by-product gas generants to the MRF. EPA may extend this deadline, at the request of
Autoliv, when good cause is shown. The initial test shall consist of three duplicate runs
sampling for:
(1) Particulate matter using Method 5 as specified in 40 CFR Part 60, Appendix A.
(2) The metals Aluminum, Arsenic, Barium, Beryllium, Boron, Cadmium, Chromium, Cobalt,
Copper, Lead, and Nickel using Method 29 as specified in 40 CFR Part 60, Appendix A.
(3) Polychlorinated di-benzo dioxins and furans using Method 23 0023A as specified in 40 CFR
Part 60, Appendix A.
(4) Carbon monoxide using Method 10 as specified in 40 CFR Part 60, Appendix A.
(b)(18)(v)(B) After the initial test is completed, an annual stack test (12 months from the
previous initial stack test) of the MRF shall be conducted. The annual tests shall consist of
three duplicate runs using Method 29 and Method 5 as specified in 40 CFR Part 60, Appendix
A.
(b)(18)(v)(C) Testing shall be conducted while by-product gas generants are fed to the MRF
at no less than 90% of the planned maximum feed rate, and with the MRF operating
parameters within normal ranges.
(b)(18)(v)(D) Initial stack testing results and additional project performance data and
information, including the quantity of by-product gas generants processed and the operating
parameter values during the test runs, will be submitted by Autoliv to the State of Utah and
EPA within 60 days of the completion of the initial stack test.
(b)(18)(v)(E) Annual stack test results and additional project performance data and
information, including the quantity of by-product gas generants processed and the operating
parameter values during the test runs, will be submitted by Autoliv to EPA and the State of
Utah within 60 days of the completion -of the annual test.
(b)(18)(vi) Combustion gas discharged to the atmosphere from the MRF meets the following
limits:
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(b)(18)(vi)(A) Dioxin emissions do not exceed 0.4 ng per dry standard cubic meter on a
toxicity equivalent quotient (TEQ) basis corrected to 7% Oxygen.
(b)(18)(vi)(B) Combined lead and cadmium emissions do not exceed 240 ug per dry standard
cubic meter corrected to 7% Oxygen.
(b)(18)(vi)(C) Combined arsenic, beryllium, and chromium emissions do not exceed 97 ug per
dry standard cubic meter corrected to 7% Oxygen.
(b)(18)(vi)(D) Particulate matter emissions do not exceed 34 mg per dry standard cubic
meter corrected to 7% Oxygen.
(b)(18)(vi)(E) If the limits specified in paragraphs (b)(18)(vi)(A) through (D) of this section
are exceeded, Autoliv shall discontinue feeding gas generants to the MRF until such time as
Autoliv can demonstrate to EPA and the state of Utah satisfaction that the MRF combustion
gas emissions can meet the limits specified in paragraphs (b)(18)(vi) (A) through (D) of this
section
(b)(18)(vii) No by-product gas generants or other pyrotechnic wastes generated off -site will
be received at the Autoliv facility in Promontory, Utah or processed in the MRF unless
otherwise allowed by law (permit or regulation).
(b)(18)(viii) Autoliv will provide EPA and the state of Utah with semi- annual reports (by
January 30 and July 30 of each year).
(b)(18)(viii)(A) The semi-annual reports will document the amounts of by-product gas
generants processed during the reporting period.
(b)(18)(viii)(B) The semi-annual reports will provide a summary of the MRF Operating Record
during the reporting period, including information on by-product gas generant composition,
average feed rates, upset conditions, and spills or releases.
(b)(18)(ix) No significant changes are made to the operating parameter production values of
Autoliv's production of air bag gas generants such that any of the constituents listed in
appendix VIII of this part are introduced into the process.
(b)(18)(x) Autoliv reports to the EPA any noncompliance which may endanger health or the
environment orally within 24 hours from the time Autoliv becomes aware of the
circumstances, including:
(b)(18)(x)(A) Any information of a release, discharge, fire, or explosion from the MRF, which
could threaten the environment or human health.
(b)(18)(x)(B) The description of the occurrence and its cause shall include:
(1) Name, address, and telephone number of the facility;
(2) Date, time, and type of incident;
(3) Name and quantity of material(s) involved;
(4) The extent of injuries, if any;
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(5) An assessment of actual or potential hazards to the environment and human health, and
(6) Estimated quantity and disposition of recovered material that resulted from the incident.
(b)(18)(x)(C) A written notice shall also be provided within five days of the time Autoliv
becomes aware of the circumstances. The written notice shall contain a description of the
non-compliance and its cause; the period of noncompliance including exact dates and times,
and if the noncompliance has not been corrected, the anticipated time it is expected to
continue; and steps taken or planned to reduce, eliminate, and prevent reoccurrence of the
noncompliance. The EPA may waive the five day written notice requirement in favor of a
written report within fifteen days.
(b)(18)(xi) Notifications and submissions made under paragraph (b)(18) of this section shall
be sent to the Regional Assistant Administrator for the Office of Partnerships and Regulatory
Assistance, U.S. EPA, Region 8 and the Executive Secretary of the Utah Solid and Hazardous
Waste Control Board.
(c) Hazardous wastes which are exempted from certain regulations. A hazardous waste which
is generated in a product or raw material storage tank, a product or raw material transport
vehicle or vessel, a product or raw material pipeline, or in a manufacturing process unit or an
associated non- waste -treatment -manufacturing unit, is not subject to regulation under Parts
262 through 265, 268, 270, 271 and 124 of this chapter or to the notification requirements of
,section 3010 of RCRA until it exits the unit in which it was generated, unless the unit is a
surface impoundment, or unless the hazardous waste remains in the unit more than 90 days
after the unit ceases to be operated for manufacturing, or for storage or transportation of
product or raw materials.'
(d) Samples. (1) Except as provided in paragraph (d)(2) of this section, a sample of solid
waste or a sample of water, soil, or air, which is collected for the sole purpose of testing to
determine its characteristics or composition, is not subject to any requirements of this part or
Parts 262 through 268 or Part 270 or Part 124 of this chapter or to the notification
requirements of section 3010 of RCRA, when:
(d)(1)(i) The sample is being transported to a laboratory for the purpose of testing; or
(d)(1)(ii) The sample is being transported back to the sample collector after testing; or
(d)(1)(iii) The sample is being stored by the sample collector before transport to a laboratory
for testing; or
(d)(1)(iv) The sample is being stored in a laboratory before testing; or
(d)(1)(v) The sample is being stored in a laboratory after testing but before it is returned to
the sample collector; or
(d)(1)(vi) The sample is being stored temporarily in the laboratory after testing for a specific
purpose (for example, until conclusion of a court case or enforcement action where further
testing of the sample may be necessary).
(d)(2) In order to qualify for the exemption in paragraphs (d)(1)(i) and (ii) of this section, a
sample collector shipping samples to a laboratory and a laboratory returning samples to a
sample collector must:
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(d)(2)(i) Comply with U.S. Department of Transportation (DOT), U.S. Postal Service (USPS),
or any other applicable shipping requirements; or
(d)(2)(ii) Comply with the following requirements if the sample collector determines that DOT,
USPS, or other shipping requirements do not apply to the shipment of the sample:
(d)(2)(ii)(A) Assure that the following information accompanies the sample:
(1) The sample collector's name, mailing address, and telephone number;
(2) The laboratory's name, mailing address, and telephone number;
(3) The quantity of the sample;
(4) The date of shipment; and
(5) A description of the sample.
(d)(2)(ii)(B) Package the sample so that it does not leak, spill, or vaporize from its packaging.
(d)(3) This exemption does not apply if the laboratory determines that the waste is hazardous
but the laboratory is no longer meeting any of the conditions stated in paragraph (d)(1) of
this section.
(e) Treatability Study Samples. (1) Except as provided in paragraph (e)(2) of this section,
persons who generate or collect samples for the purpose of conducting treatability studies as
defined in section 260.10, are not subject to any requirement of Parts 261 through 263 of this
chapter or to the notification requirements of Section 3010 of RCRA, nor are such samples
included in the quantity determinations of §261.5 and §262.34(d) when:
(e)(1)(i) The sample is being collected and prepared for transportation by the generator or
sample collector; or
(e)(1)(ii) The sample is being accumulated or stored by the generator or sample collector
prior to transportation to a laboratory or testing facility; or
(e)(1)(iii) The sample is being transported to the laboratory or testing facility for the purpose
of conducting a treatability study.
(e)(2) The exemption in paragraph (e)(1) of this section is applicable to samples of hazardous
waste being collected and shipped for the purpose of conducting treatability studies provided
that:
(e)(2)(i) The generator or sample collector uses (in "treatability studies") no more than
10,000 kg of media contaminated with non -acute hazardous waste, 1000 kg of non -acute
hazardous waste other than contaminated media, 1 kg of acute hazardous waste, 2500 kg of
media contaminated with acute hazardous waste for each process being evaluated for each
generated waste stream; and
(e)(2)(ii) The mass of each sample shipment does not exceed 10,000 kg; the 10,000 kg
quantity may be all media contaminated with non -acute hazardous waste, or may include
2500 kg of media contaminated with acute hazardous waste, 1000 kg of hazardous waste,
and 1 kg of acute hazardous waste; and
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(e)(2)(iii) The sample must be packaged so that it will not leak, spill, or vaporize from its
packaging during shipment and the requirements of paragraph A or B of this subparagraph
are met.
(e)(2)(iii)(A) The transportation of each sample shipment complies with U.S. Department of
Transportation (DOT), U.S. Postal Service (USPS), or any other applicable shipping
requirements; or
(e)(2)(iii)(B) If the DOT, USPS, or other shipping requirements do not apply to the shipment
of the sample, the following information must accompany the sample:
(1) The name, mailing address, and telephone number of the originator of the sample;
(2) The name, address, and telephone number of the facility that will perform the treatability
study;
(3) The quantity of the sample;
(4) The date of shipment; and
(5) A description of the sample, including its EPA Hazardous Waste Number.
(e)(2)(iv) The sample is shipped to a laboratory or testing facility which is exempt under
§261.4(f) or has an appropriate RCRA permit or interim status.
(e)(2)(v) The generator or sample collector maintains the following records for a period
ending 3 years after completion of the treatability study:
(e)(2)(v)(A) Copies of the shipping documents;
(e)(2)(v)(B) A copy of the contract with the facility conducting the treatability study;
(e)(2)(v)(C) Documentation showing:
(1) The amount of waste shipped under this exemption;
(2) The name, address, and EPA identification number of the laboratory or testing facility that
received the waste;
(3) The date the shipment was made; and
(4) Whether or not unused samples and residues were returned to the generator.
(e)(2)(vi) The generator reports the information required under paragraph (e)(2)(v)(C) of this
section in its biennial report.
(e)(3) The Regional Administrator may grant requests on a case -by -case basis for up to an
additional two years for treatability studies involving bioremediation.-The Regional
Administrator may grant requests on a case -by- case basis for quantity limits in excess of
those specified in paragraphs (e)(2)(i) and (ii) and (f)(4) of this section, for up to an
additional 5000 kg of media contaminated with non -acute hazardous waste, 500 kg of non -
acute hazardous waste, 2500 kg of media contaminated with acute hazardous waste and 1 kg
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of acute hazardous waste:
(e)(3)(i) In response to requests for authorization to ship, store and conduct treatability
studies on additional quantities in advance of commencing treatability studies. Factors to be
considered in reviewing such requests include the nature of the technology, the type of
process (e.g., batch versus continuous), size of the unit undergoing testing (particularly in
relation to scale -up considerations), the time/quantity of material required to reach steady
state operating conditions, or test design considerations such as mass balance calculations.
(e)(3)(ii) In response to requests for authorization to ship, store and conduct treatability
studies on additional quantities after initiation or completion of initial treatability studies,
when: There has been an equipment or mechanical failure during the conduct of a treatability
study; there is a need to verify the results of a previously conducted treatability study; there
is a need to study and analyze alternative techniques within a previously evaluated treatment
process; or there is a need to do further evaluation of an ongoing treatability study to
determine final specifications for treatment.
(e)(3)(iii) The additional quantities and timeframes allowed in paragraph (e)(3)(i) and (ii) of
this section are subject to all the provisions in paragraphs (e)(1) and (e)(2)(iii) through (vi)
of this section. The generator or sample collector must apply to the Regional Administrator in
the Region where the sample is collected and provide in writing the following information:
(e)(3)(vi)(A) The reason why the generator or sample collector requires additional time or
quantity of sample for treatability study evaluation and the additional time or quantity
needed;
(e)(3)(vi)(B) Documentation accounting for all samples of hazardous waste from the waste
stream which have been sent for or undergone treatability studies including the date each
previous sample from the waste stream was shipped, the quantity of each previous shipment,
the laboratory or testing facility to which it was shipped, what treatability study processes
were conducted on each sample shipped, and the available results on each treatability study;
(e)(3)(vi)(C) A description of the technical modifications or change in specifications which will
be evaluated and the expected results;
(e)(3)(vi)(D) If such further study is being required due to equipment or mechanical failure,
the applicant must include information regarding the reason for the failure or breakdown and
also include what procedures or equipment improvements have been made to protect against
further breakdowns; and
(e)(3)(vi)(E) Such other information that the Regional Administrator considers necessary.
(f) Samples Undergoing Treatability Studies at Laboratories and Testing Facilities. Samples
undergoing treatability studies and the laboratory or testing facility conducting such
treatability studies (to the extent such facilities are not otherwise subject to RCRA
requirements) are not subject to any requirement of this Part, Part 124, Parts 262-266, 268,
and 270, or to the notification requirements of Section 3010 of RCRA provided that the
conditions of paragraphs (f)(1) through (11) of this section are met. A mobile treatment unit
(MTU) may qualify as a testing facility subject to paragraphs (f)(1) through (11) of this
section. Where a group of MTUs are located at the same site, the limitations specified in (f)(1)
through (11) of this section apply to the entire group of MTUs collectively as if the group were
one MTU.
(f)(1) No less than 45 days before conducting treatability studies, the facility notifies the
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Regional Administrator, or State Director (if located in an authorized State), in writing that it
intends to conduct treatability studies under this paragraph.
(f)(2) The laboratory or testing facility conducting the treatability study has an EPA
identification number.
(f)(3) No more than a total of 10,000 kg of "as received" media contaminated with non -acute
hazardous waste, 2500 kg of media contaminated with acute hazardous waste or 250 kg of
other "as received" hazardous waste is subject to initiation of treatment in all treatability
studies in any single day. "As received" waste refers to the waste as received in the shipment
from the generator or sample collector.
(f)(4) The quantity of "as received" hazardous waste stored at the facility for the purpose of
evaluation in treatability studies does not exceed 10,000 kg, the total of which can include
10,000 kg of media contaminated with non- acute hazardous waste, 2500 kg of media
contaminated with acute hazardous waste, 1000 kg of non -acute hazardous wastes other
than contaminated media, and 1 kg of acute hazardous waste. This quantity limitation does
not include treatment materials (including nonhazardous solid waste) added to "as received"
hazardous waste.
(f)(5) No more than 90 days have elapsed since the treatability study for the sample was
completed, or no more than one year (two years for treatability studies involving
bioremediation) have elapsed since the generator or sample collector shipped the sample to
the laboratory or testing facility, whichever date first occurs. Up to 500 kg of treated material
from a particular waste stream from treatability studies may be archived for future evaluation
up to five years from the date of initial receipt. Quantities of materials archived are counted
against the total storage limit for the facility.
(f)(6) The treatability study does not involve the placement of hazardous waste on the land or
open burning of hazardous waste.
(f)(7) The facility maintains records for 3 years following completion of each study that show
compliance with the treatment rate limits and the storage time and quantity limits. The
following specific information must be included for each treatability study conducted:
(f)(7)(i) The name, address, and EPA identification number of the generator or sample
collector of each waste sample;
(f)(7)(ii) The date the shipment was received;
(f)(7)(iii) The quantity of waste accepted;
(f)(7)(iv) The quantity of "as received" waste in storage each day;
(f)(7)(v) The date the treatment study was initiated and the amount of "as received" waste
introduced to treatment each day;
(f)(7)(vi) The date the treatability study was concluded;
(f)(7)(vii) The date any unused sample or residues generated from the treatability study were
returned to the generator or sample collector or, if sent to a designated facility, the name of
the facility and the EPA identification number.
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(f)(8) The facility keeps, on -site, a copy of the treatability study contract and all shipping
papers associated with the transport of treatability study samples to and from the facility for a
period ending 3 years from the completion date. of each treatability study.
(f)(9) The facility prepares and submits a report to the Regional Administrator, or state
Director (if located in an authorized state), by March 15 of each year, that includes the
following information for the previous calendar year:
(f)(9)(i) The name, address, and EPA identification number of the facility conducting the
treatability studies;
(f)(9)(ii) The types (by process) of treatability studies conducted;
(f)(9)(iii) The names and addresses of persons for whom studies have been conducted
(including their EPA identification numbers);
(f)(9)(iv) The total quantity of waste in storage each day;
(f)(9)(v) The quantity and types of waste subjected to treatability studies;
(f)(9)(vi) When each treatability study was conducted;
(f)(9)(vii) The final disposition of residues and unused sample from each treatability study.
(f)(10) The facility determines whether any unused sample or residues generated by the
treatability study are hazardous waste under §261.3 and, if so, are subject to Parts 261
through 268, and Part 270 of this Chapter, unless the residues and unused samples are
returned to the sample originator under the §261.4(e) exemption.
(f)(11) The facility notifies the Regional Administrator, or State Director (if located in an
authorized State), by letter when the facility is no longer planning to conduct any treatability
studies at the site.
(g) Dredged material that is not a hazardous waste. Dredged material that is subject to the
requirements of a permit that has been issued under 404 of the Federal Water Pollution
Control Act (33 U.S.C.1344) or section 103 of the Marine Protection, Research, and
Sanctuaries Act of 1972 (33 U.S.C. 1413) is not a hazardous waste. For this paragraph (g),
the following definitions apply:
(g)(1) The term dredged material has the same meaning as defined in 40 CFR 232.2;
(g)(2) The term permit means:
(g)(2)(i) A permit issued by the U.S. Army Corps of Engineers (Corps) or an approved State
under section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344);
(g)(2)(ii) A permit issued by the Corps under section 103 of the Marine Protection, Research,
and Sanctuaries Act of 1972 (33 U.S.C. 1413); or
(g)(2)(iii) In the case of Corps civil works projects, the administrative equivalent of the
permits referred to in paragraphs (g)(2)(1) and (ii) of this section, as provided for in Corps
regulations (for example, see 33 CFR 336.1, 336.2, and 337.6).
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Regulation Information
Page 22 of 22
[62 FR 26019, May 12, 1997; 63 FR 18635 Apr. 15, 1998; 63 FR 28556 May 26, 1998; 63 FR
33823 June 19, 1998; 63 FR 42184 Aug. 6, 1998; 63 FR 65873 Nov. 30, 1998; 64 FR 6814
Feb. 11, 1999; 64 FR 25414 May 11, 1999; 65 FR 54965, Sep. 12, 2000; 66 FR 23624 May 9,
2001; 66 FR 58297 Nov. 20, 2001; 67 FR 11254 Mar. 13, 2002; 67 FR 48414 July 24, 2002;
67 FR 78731 Dec. 26, 2002; 68 FR 8553 Feb. 24, 2003; 70 FR 9175 Feb. 24, 2005; 70 FR
36857 June 27, 2005; 71 FR 16902, Apr. 4, 2006; 71 FR 40259, July 14, 2006; 71 FR 42948,
July 28, 2006; 73 FR 72, Jan. 2, 2008]
Copyright © 2008 J. J. Keller & Associates, Inc. All rights reserved.
https://www.kelleronline.com/reference/regprint.aspx?linkdata=21363&linktype=l 1 /28/2008

NORTH CAROLINA IN THE OFFICE OF ADMINISTRATIVE HEARINGS
ROBESON FILE NOS: 07 ERR 0439 and 07 EHR 177
ALCHEM, INC. )
Petitioner )
vs. )
NORTH CAROLINA DEPARTMENT OF . )
NATURAL RESOURCES )
Respondent )
PETITIONER'S FIRST SET OF
INTERROGATORIES AND
REQUEST FOR PRODUCTION
OF DOCUMENTS
Petitioner, Alchem, Inc. (hereinafter "Alchem"), by and through counsel, pursuant to
N.C. Rules of Civil Procedure 26, 33 and 34, hereby requests Respondent, North Carolina
Department of Environment and Natural Resources (hereinafter "DENR") to answer the
following within the time allowed by the North Carolina Rules of Civil Procedure.
DEFINITIONS OF TERMS FOR INTERROGATORIES AND REQUESTS
FOR PRODUCTION
The term "document" is used in its customary and broad sense to mean, by way of
illustration, and not by way of limitation:
1.1 All written, printed, typed, recorded, filmed or graphic matter of every
type and description, however, and by whomever prepared, produced, reproduced,
disseminated or made, in the actual or constructive possession, custody or control
of any parry to. whom these interrogatories are directed, including but not limited
to all writings, letters, audio tape, video tape, electronic mail ("e-mail") or records
of electronic mail ("e-mail"), voice mail or records of voice mail, minutes, files,
bulletins, correspondence, maps, map overlays, telegraphs, telegrams, personal or

inter -office memoranda, notes, instructions, diaries, literature, work assignments,
inter -company or intra-company communications, notebooks, pamphlets,
periodicals, professional manuals, records, bookkeeping entries, agreements,
contracts, notations of telephone or personal conversations or conferences, intra-
and inter- office communications, microfilm, circulars, advertisements, catalogs,
studies, notices, summaries, reports, books, financial statements, returns, checks,
check stubs, check statements, agreements, invoices, graphs, photographs, drafts,
films, video and audio tap recordings, data sheets, data compilations, computer
software, computer data sheets, computer data compilations, computer tapes,
disks or other computer recording media, work sheets, statistics, speeches and
other writings, tape recordings, transcripts of tape recordings, records or
recordings of oral conversations or meetings, transmission data, photograph
records of data compilations from which information may be obtained or can be
translated through detection into reasonably usable form, or any other tangible
things;
1.2 originals and all other copies not absolutely identical; and
1.3 all drafts and notes, whether typed, handwritten or otherwise made or prepared in
connection with such documents whether used or not.
If there is any doubt as to whether an item is a "document", it should be included in the response.
2. The term "communication" means any contact, oral or written, formal or informal, at
any time or place, under any circumstances, in any manner, whereby a statement of any nature
is transmitted, disclosed, exchanged or transferred and shall include without limitation any

documents containing, constituting, reflecting, memorializing, referring or relating to any such
contact.
3. The word "or" means "and/or" and should be read both ways so as to encompass
both constructions and calls for responses to be given responsive to both constructions.
4. The term "including" means "including, but not limited to".
5. "Identify", "identification" or "identity" includes, but is not limited to, the
following meanings:
5.1 when used with respect to a natural person, it means to state the full name
of the person, his/her present employment and job title, the name of the present
employer and his/her business and home addresses, including the respective
telephone numbers;
5.2 when used in reference to any business entity or unincorporated
association, it means to state the full name of the entity or association and the
address and telephone number of its principal office;
5.3 when used in reference to a document, it means to state the type of
document (see the definition of "document" above) or some other means of
recognizing it, its author(s) or signer(s), the name and job title of each person who
received or was designated to receive a copy, its date, its present location or
custodian, and a summary of its contents. If any document requested to be
identified is not in the possession or control of the aforementioned persons, or is
no longer in existence, state whether it is: (1) missing or lost; (2) destroyed; (3)
transferred voluntarily or involuntarily to others and, if so, to whom; or (4)
otherwise disposed of, and in each instance explain the circumstances surrounding

and authorization for such disposition thereof and state the approximate date
thereof.
6. Whenever the term "person" is used herein, it shall be interpreted to include
without limitation natural persons, partnerships, corporations, unincorporated associations,
governmental units, agencies and other such entities.
7. The term "the Project" refers to 8135 Red Road, Rockwell (Rowan County),
North Carolina.
8. The term "Alchem" refers to Alchem, Inc., and its successors, agents,
representatives and attorneys, unless otherwise specified.
9. The term "DENT" refers to North Carolina Department of Natural Resources, and
its agents, successors and assigns unless otherwise specified.
10. The term "Old Permit" refers to permit WQ006335 issued by DENR dated 3/l/99.
11. The term "Permit" refers to a permit WQ006338 issued by DENR dated 12/28/06.
12. The term "relate(s)", "relate(s) to" or "relating to" means referring to, supporting,
contradicting, mentioning, evaluating, discussing or relevant to.
13. The term "you" or "your" refers to DENR unless otherwise specified.
INSTRUCTIONS FOR INTERROGATORIES AND
REQUESTS FOR PRODUCTION
1. The time period covered by this discovery request is from January 1, 2004 until
the present, unless otherwise specified.
2. If you object to any Interrogatory or Request for Production, please state in detail
the grounds upon which the objection is based.
4

3. If any document or other tangible evidence responsive to any Interrogatory or
Request for Production has been destroyed, disposed of, lost, mutilated, altered, redacted or is
not presently available, identify the document and include a statement as to its disposition.
4. In answering the Requests for Production and the Interrogatories, furnish all
information available to you, including information in the possession of your attorneys or their
investigators, and all other persons acting in your behalf, and not merely information of which
you have personal knowledge. If you cannot answer the Interrogatories, or comply with the
Requests for Production fully after exercising due diligence to secure the information, so state
and answer to the extent possible, specifying your inability to answer or comply with the
remainder and stating the specific efforts made to obtain the information necessary to answer
fully.
5. If a refusal to answer an Interrogatory or Request for Production of Documents is
based on burdensomeness, identify the number and nature of documents needed to be searched,
the location of the documents and the number of person hours and costs incurred to conduct the
search.
6. "And" as well as "or" shall be construed either disjunctively or conjunctively as
necessary to bring within the scope of the specification or response that which might otherwise
be construed to be outside the scope. "Each" shall be construed to include the word "every" and
"every" shall be construed to include the word "each." "Any" shall be construed to include the
word "all" and "all" shall be construed to include the word "any."
7. The use of a verb in any tense shall be construed as the use of the verb in all
tenses, wherever necessary to bring within the scope of the Interrogatory or Request for
Production, all responses which might otherwise be construed to be outside its scope.

8. A plural noun shall be construed as a singular noun and a singular noun shall be
construed as a plural noun, whenever necessary to bring within the scope of the Interrogatory or
Request for Production, responses which might otherwise be construed to be outside its scope.
9. The Interrogatories contained within this document are continuing in nature.
Therefore, you are requested to supplement your responses to these Interrogatories with
information which you or anyone acting in your behalf may locate or obtain subsequent to your
initial response to these Interrogatories that will augment or otherwise modify the mutual
answers to the Interrogatories below. Such supplementary responses are to be served upon
Alchem within thirty (30) days after receipt of such information.
10. If a claim of privilege is asserted as to any oral or written communication for
which identification is requested by this Request for Production of Documents, please identify
such oral and written communication and those persons with knowledge regarding any facts
contained in or the substance of said communication so as to allow Alchem to bring this matter
before the Court. Communication shall be deemed to be adequately described for this purpose if
the following information is provided:
a. The nature of the privilege claimed (privilege as used herein shall include
work product);
b. The identity and position of the person(s) supplying the information, on
which the communication is based;
C. In the case of written communications, the approximate date the document
was prepared, its title, the type of document (e.g., letter, memo, etc.), addresses,
and the name and position of each person, including attorneys representing
DENR, in connection with this lawsuit, to whom the contents of the document

have been communicated by copy, exhibition, reading or substantial
summarization;
d. In this case of oral communications, the location and approximate date of
each such communication, the identity of the person who was a party to the
communication, and the identity of each person, including attorneys representing
DENR in connection with this lawsuit, to whom the content of substance of the
communication, or any part thereof, has been communicated; and
A brief description or summary of the contents or substance of the
communication sufficient to explain the basis for the claim of privilege.
11. If any document or other tangible evidence requested herein was at one time in
existence and in your possession, or possession of one of your agents or experts, but was lost,
discarded, or destroyed, or has been removed from your possession, custody or control, please
provide the following information:
a. Identify and describe each document or other tangible evidence by date,
title and type of document or evidence;
b. State when each document or other tangible evidence was most recently in
possession or subject to your control, and what disposition was made of such
document or other tangible evidence, including an identification of the person, if
any, presently in the possession or control of such document or other tangible
evidence;
State when the document or other tangible evidence was transferred or
destroyed. Identify the person who transferred or destroyed the document or other

tangible evidence and the person who authorized such transfer or destruction or
has knowledge of its transfer or destruction; and
d. Identify all persons having knowledge of the contents of the document or
other tangible evidence thereof.
12. Whenever DENR's response calls for identification of a communication of any
type and such communication was oral, the following information should be furnished:
a. By whom it was made and to whom;
b. The date when it was made;
C. Who else was present when it was made;
d. Whether it was recorded or transcribed in any writing of any type.
INTERROGATORIES
1. Please identify and provide a detailed accounting of how your arrived at the Civil
Penalty Assessment dated 2/20/07, including but not limited to which of the criteria in § 14313-
282.1, and § 143-215.6A; 15 and all pertinent sections of N.C.A.C. you relied upon and how
each criterion was translated into a monetary figure which comprised the Civil Penalty
Assessment. If you recorded your calculations which support your Civil Penalty Assessment,
please identify these calculations and how they were arrived at.
ANSWER:
2. Please identify all documents which comprise your file(s) relating to the Civil
Penalty Assessment, Notices of Violation, Notices of Continuing Violation and/or Notices of
Additional Violation.
r:IMMAU 3
g

3. Please identify all correspondence between you and Alchem and/or between you
and any other entity concerning the Project or any related matters.
ANSWER:
4. Identify all conversations between DENR representatives and Alchem
representatives, related to the New Permit, or Notices of Violation, or Civil Penalty Assessments
issued with regard to the Project, including when the conversations occurred, who was present
and the substance of said conversations and, if such conversations were taped, identify said
tape(s).
ANSWER:
5. Identify all additional work you contend was done at each site after each report.
ANSWER:
6. Identify all penalties previously assessed against Alchem.
ANSWER: .
7. Identify and explain all notations you have on all photographs you have made or
will make available to Alchem and all photographs in your possession related to
the Project.
8. ANSWER:
9

8. For each violation you listed in your Civil Penalty Assessment, identify which
picture(s) purports to show which violation(s) and any other document any evidence of each
alleged violation.
F."IMMAIJ DIM
9. Identify all reports you prepared on this Project.
ANSWER:
10. In your Civil Penalty Assessment dated 2/20/07, identify each violation of N.C.
Gen. Stat. § 143-215.1(a)(6), identifying exactly when each violation occurred and identify any
documents that support your contention.
ANSWER:
11. In your Civil Penalty Assessment dated 2/20/07, for each violation of Part I.1 and
11.3 of DWQ Permit No. W00016338, identify how the permit was violated, exactly where each
violation occurred, and identify any documents that support your contention.
ANSWER:
12. Identify all compliance inspections you performed for this Project including, but
not limited to 12/05/06.
10

13. Identify all Notices of Violation, Notices of Additional Violation and/or Notice of
Continuing Violation, issued on the Project, including but not limited to 12/20/06.
ANSWER:
14. Identify all permits issued for the Project.
REQUESTS FOR PRODUCTION OF DOCUMENTS
1. Please produce copies of all photographs you have taken related to the Project.
ANSWER:
2. Please produce a copy of all documents in your file(s) related to this matter.
ANSWER:
3. Produce any affidavits you have taken related in any way to this matter.
ANSWER:
4. Produce a copy of the civil penalty assessment worksheet(s).
ANSWER:
11

5. Produce a copy of any document identified, referred to and/or relied on in
answering the above interrogatories.
ANSWER:
6. Any documents that refer to, are related to or comprise any permit applications on
the Project.
ANSWER:
This the 29th day of May, 2007.
NO
THE YARBOROUGH LAW FIRM
H. ADDISON WINTERS
Attorney for Petitioner
P.O. Box 705
Fayetteville, NC 28302
[phone]
12

CERTIFICATE OF SERVICE
I do hereby certify that a copy of the foregoing Petitioner's First Set of Interrogatories and
Requests for Production of Documents to Respondent has been duly served upon the below
named individual by depositing the same in the mail with the U.S. Postal Office to the following
address:
Stormie D. Forte
ATTORNEY GENERAL'S OFFICE
Environmental Division
9001 Mail Service Center
Raleigh NC 27699
This the 29t' day of May, 2007.
THE YARBOROUGH LAW FIRM
H. ADDISON WINTERS
Attorney for Petitioner
P.O. BOX 705
Fayetteville, NC 28302
[phone]
13

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