United States Solid Waste and EPA530-R-99-065
Environmental Emergency Response PB2000-101 905
Protection Agency (5305W) February 2000
RCRA, Superfund & EPCRA
Hotline Training Module
Introduction to:
Solid and Hazardous Waste
Exclusions
(40CFR§261.4)
Updated October 1999
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DISCLAIMER
This document was developed by Booz-Allen & Hamilton Inc. under contract 68-WO-0039 to EPA. It is
intended to be used as a training tool for Hotline specialists and does not represent a statement of EPA
policy.
The information in this document is not by any means a complete representation of EPA's regulations or
policies. This document is used only in the capacity of the Hotline training and is not used as a reference
tool on Hotline calls. The Hotline revises and updates this document as regulatory program areas
change.
The information in this docume nt may not necessarily reflect the current position of the Agency. This
document is not intended and cannot be relied upon to create any rights, substantive or procedural,
RCRA, Superfund & EPCRA Hotline Phone Numbers:
National toll-free (outside of DC area) (800) 424-9346
Local number (within DC area) (703) 412-9810
National toll-free for the hearing impaired (TDD) (800) 553-7672
The Hotline is open from 9 am to 6 pm Eastern Time,
Monday through Friday, except for federal holidays.
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SOLID AND HAZARDOUS WASTE EXCLUSIONS
CONTENTS
1. Introduction 1
2. Regulatory Summary 2
2.1 Solid Waste Exclusions 2
2.2 Hazardous Waste Exclusions 11
2.3 Exclusions for Raw Material, Product and Process Unit Wastes 20
2.4 Sample and Treatability Study Exclusions 21
2.5 Dredged Material Exclusion 22
3. Special Issues 23
3.1 Federally Owned Treatment Works 23
3.2 Household Hazardous Waste Collection Programs 23
3.3 Municipal Waste Combustion Ash 23
4. Regulatory Developments 24
4.1 Deferral from RCRA for the Management and Disposal of Lead Based
Paint Debris 24
4.2 Petroleum-Contaminated Media and Debris from Non-USTs 24
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Solid and Hazardous Waste Exclusions -1
1. INTRODUCTION
The Resource Conservation and Recovery Act's (RCRA) Subtitle C hazardous waste
management program is a comprehensive and carefully constructed system to ensure
wastes are managed safely and lawfully. This program begins with a specific, formal
process to categorize wastes accurately and appropriately. This process is called waste
identification. Because of the risks posed by mishandled hazardous wastes and the
cost of hazardous waste management, this hazardous waste identification process is
critical to operating the hazardous waste program effectively.
Some of the materials that would otherwise fit the definition of a solid or hazardous
waste under hazardous waste identification are specifically excluded from the
definition. EPA concluded that these materials should not be regulated as solid or
hazardous waste for one or more of a number of reasons. Many exclusions are
mandated in the statute. EPA selected other exclusions to provide an incentive to
recycle certain materials, because there was not enough information on the material to
justify its regulation as a solid or hazardous waste, or because the material was already
subject to regulation under another statute. The exclusions from the definition of a
RCRA solid or hazardous waste are codified in 40 CFR §261.4.
This module explains each waste exclusion and its scope, so you can apply this
knowledge in determining whether a given waste is or is not regulated under RCRA
Subtitle C. When you have completed this module, you will be able to:
• Cite the regulatory section for exclusions, and identify materials that are not
solid wastes and solid wastes that are not hazardous wastes
• Locate the manufacturing process unit exclusion
• Identify the sample and treatability study exclusions and their applicability
• Outline and specify the conditions for meeting the exclusions for household
wastes and mixtures of domestic sewage.
Use this list of objectives to check your knowledge of this topic after you complete the
training session.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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2 - Solid and Hazardous Waste Exclusions
2. REGULATORY SUMMARY
After determining that a waste is a solid waste, the next step in every hazardous waste
determination requires the generator to determine if the waste fits any of the five
categories of exclusions identified in §261.4 (§262.11 (a)). If the waste fits one of these
categories, it is not regulated as a RCRA hazardous waste, and the hazardous waste
determination process ceases. The first category includes wastes that are excluded
from being solid wastes (§261.4(a)). The second category covers wastes that are
excluded from being hazardous wastes (§261.4(b)). The remaining four categories are
conditional exclusions that only apply when the provisions established under each
section are met. Section 261.4(c) contains an exclusion for hazardous waste generated in
raw material, product storage, or manufacturing units. Section 261.4(d) provides an
exclusion for laboratory samples and the §§261.4(e) and (f) exclusions apply to waste
treatability studies. Finally, §261.4(g) excludes dredged material from the definition of
hazardous waste when permitted under the Marine Protection Research and
Sanctuaries Act (MPRSA), or the Clean Water Act (CWA). If a waste is excluded under
any of these categories, Subtitle C hazardous waste requirements do not apply. On the
other hand, if an exclusion does not apply, the steps of hazardous waste identification
continue pursuant to §262.11.
These five broad categories of §261.4 exclusions are addressed in the order in which
they appear in the CFR.
2.1 SOLID WASTE EXCLUSIONS
The exclusions from the definition of solid waste are listed in §261.4(a). If a material is
listed under §261.4(a), it is not a solid waste and thus under the regulations cannot be a
hazardous waste. The analysis of the waste stops there if it is excluded — it does not
matter if the material exhibits a characteristic as set out in §§261.21 through 261.24 (i.e.,
ignitable, corrosive, reactive, or toxic), or would otherwise be a waste listed in Part 261,
Subpart D. Currently there are 19 exclusions under §261.4(a). These materials are
excluded for a variety of reasons, including public policy, economic impacts,
regulation by other laws, lack of data, or impracticability of regulating the waste. The
decision to exclude the following materials from the solid waste definition is a result of
either Congressional action (embodied in the statute) or EPA rulemaking.
DOMESTIC SEWAGE AND MIXTURES OF DOMESTIC SEWAGE (§261.4(a)(l))
Sanitary wastes that pass through a publicly or privately owned sewer system are
considered domestic sewage and are excluded from regulation under Subtitle C (45 FR
33066, 33097; May 19, 1980).
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 3
Under §261.4(a)(l)(ii), mixtures of sanitary wastes and other wastes (including
hazardous industrial wastes) that pass through a sewer system to a publicly owned
treatment works (POTW) are excluded from Subtitle C regulation. The exclusion
applies to a waste when it first enters a sewer system provided that it will mix with
sanitary wastes prior to storage or treatment by a POTW. The Agency interprets this
exclusion to begin at the point of entry into the sewage system, not at the point the
hazardous waste actually mixes with the sewage (45 FR 33066, 33097; May 19, 1980).
This exclusion does not include any waste directly transported to the POTW by truck
or rail shipments (45 FR 33066, 33097 and 33176; May 19, 1980).
Prior to entering the sewer system, the waste may be a hazardous waste subject to
RCRA regulation during generation, storage, and treatment. Once the waste has been
discharged to the POTW, it is subject to CWA regulations and local restrictions. Note
that CWA may prohibit discharges of certain chemicals and wastes into a sewer system.
RCRA hazardous wastes, once mixed with sewage in the POTWs sewer system, are no
longer considered solid waste. Hence, the POTW is not receiving or treating RCRA
hazardous wastes. When sludge is generated at the POTW from the treatment of the
waste, however, it is subject to §262.11 analysis because it is a new point of generation.
If the newly generated waste exhibits a characteristic of hazardous waste (i.e., ignitable,
corrosive, reactive, or the toxicity characteristic), it would be subject to Subtitle C
regulation (45 FR 33066, 33101; May 19, 1980).
In certain circumstances, this exclusion may be applied to domestic sewage and
mixtures of domestic sewage that pass through a federally owned treatment works
(FOTW).
POINT SOURCE DISCHARGE (§261.4(a)(2))
Industrial wastewater discharges that are subject to CWA §402, also called point source
discharges, are excluded from Subtitle C regulation. Point source discharges are
"discernible or discrete conveyances" from which pollutants may be discharged, such
as a pipe. CWA regulates such discharges under the National Pollutant Discharge
Elimination System (NPDES) permitting program. To avoid duplicative regulation,
this exclusion applies at the discharge point where the wastes are first subject to CWA
regulation (45 FR 33066, 33098; May 19, 1980). Any hazardous waste generation,
treatment, or storage prior to the point source discharge is subject to RCRA. Many
industrial facilities that treat wastewater on site use this point source discharge
exclusion.
IRRIGATION RETURN FLOW (§261.4(a)(3))
When agricultural land is irrigated, excess water may return to the water basin either as
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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4 - Solid and Hazardous Waste Exclusions
surface water runoff or through groundwater percolation. Though these return flows may
often carry hazardous constituents (from pesticides or fertilizers) or exhibit a characteristic of
hazardous waste, these wastes are excluded under §261.4(a) (3) (45 FR 33066, 33098; May 19,
1980).
RADIOACTIVE WASTE (§261.4(a)(4))
To avoid duplicative regulation of some materials under RCRA and the Atomic Energy
Act (AEA), there is an exclusion for radioactive wastes (i.e., source, special nuclear, or
by-product materials) that are regulated under AEA (45 FR 33066, 33098; May 19, 1980).
Only the radioactive components are excluded, however. If non-radioactive
components of the waste make the waste a RCRA hazardous waste, then the waste is
regulated by both AEA and RCRA.
IN-SITU MINING (§261.4(a)(5))
In-situ mining of oil shale, uranium, and other minerals may involve the application of
solvent solutions directly to a mineral deposit in the ground. The solvent passes
through the ground, collecting the mineral as it moves. The mineral and solvent
mixtures are then collected in underground wells where the solution is removed. The
solvent-contaminated earth produced, or the solution not recovered, by the in-situ
mining process is not subject to RCRA when left in place (45 FR 33066, 33101; May 19,
1980).
PULPING LIQUORS (§261.4(a)(6))
Pulping liquor is a corrosive material used to dissolve wood chips. Pulping liquors,
also called black liquors, that are reclaimed in a pulping liquor recovery furnace and
then reused in the pulping process are excluded, unless accumulated speculatively as
defined in §261.l(c) or reclaimed in another manner (50 FR 614, 642; January 4, 1985).
SPENT SULFURIC ACID (§261.4(a)(7))
Spent sulfuric acid is typically used to produce virgin sulfuric acid by reintroduction
into the sulfuric acid production process. Spent sulfuric acid that is recycled in this
manner is excluded from the definition of solid waste, unless accumulated
speculatively as defined in §261.l(c) (50 FR 614, 642; January 4, 1985).
RECLAMATION IN ENCLOSED TANKS (§261.4(a)(8))
The exclusion in §261.4 (a) (8), known as the closed-loop recycling exclusion, covers
secondary materials (e.g., spent materials or sludges) generated during production
processes which are reusable in those same processes (51 FR 25422, 25441; July 14,
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 5
1986). These secondary materials, if reclaimed and returned to the original process (es),
are excluded, provided:
• Only tank storage is involved and the entire process, through the completion of
reclamation, is closed
• Reclamation does not involve incineration or other controlled-flame combustion
(i.e., boilers or furnaces)
• Secondary materials are never accumulated in tanks for more than 12 months
without being reclaimed
• Reclaimed materials are not used to produce a fuel, or used to produce products
that are used in a manner constituting disposal.
SPENT WOOD PRESERVATIVES (§261.4(a)(9))
Spent wood preservatives are typically collected and reclaimed through a series of drip
pads connected integrally to the production process, closely resembling a closed-loop
scenario. Since the use of drip pads will not allow this reclamation process to fit the
closed-loop exclusion in §261.4 (a) (8), EPA developed an exclusion in §261.4 (a) (9) for
reclaimed spent wood preserving solutions and wastewaters containing spent
preservative that are reused for their original purpose (55 FR 50450, 50460; December 6,
1990).
Spent wood preserving solutions and wastewaters containing spent preservative are
excluded at the point they are generated (prior to reclamation or direct reuse in the
wood preserving operations), provided certain conditions are met. To qualify for this
exclusion, these materials must be recycled and reused on site for their original
intended purpose, and must be managed to prevent releases to land and groundwater.
Additionally, the drip pads that collect wood preserving solutions must meet Subtitle
C design and operating requirements (63 FR 28556, 28627; May 26, 1998). Finally, a
plant owner must notify EPA of an intent to claim that the wastes are exempt from
regulation.
COKE BY PRODUCT WASTES (§261.4(a)(10))
Certain coke by-product wastes are excluded from the definition of solid waste. Coke, a
product used in the production of iron, is manufactured by carbonizing coal in high
temperature coke ovens. Throughout the production process many by-products are
created. The initial by-product in the production process is coke oven gas (COG),
which is refined to create products such as coal tar, light oil, and sodium phenolate.
The coal tar is then further refined into pitch, naphthalene, refined tar, bitumen, and
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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6 - Solid and Hazardous Waste Exclusions
creosote oil. The refinement of these coke by-products generates several listed and
characteristic wastestreams.
EPA granted an exclusion for K087, K141, K142, K143, K144, K145, K147, K148 and any
other coke by-product wastes which exhibit the toxicity characteristic, when recycled in
the following manner:
• Returned to the coke oven as a feedstock to produce coke; or
• Returned to the tar recovery process as a feedstock to produce coal tar; or
• Mixed with coal tar prior to coal tar refining or sale as a product.
In addition, to qualify for the exclusion, the coke by-product waste cannot be placed on
the land from the time it is generated to the point it is recycled. EPA based its decision
to exclude coke by-product wastes on the fact that recycling these wastes did not have a
significant effect on the chemical composition of the products. Further, coke by-
product residues are often managed as raw materials rather than wastes, thereby
reducing the risk posed to human health and the environment because the material has
an intrinsic value that promotes its safe management.
SPLASH CONDENSER DROSS RESIDUE (§261.4(a)(ll))
The treatment of emission control dust/sludge from the primary production of steel in
electric furnaces (K061) generates a zinc-laden dross residue from the splash condenser
in a high temperature metal recovery (HTMR) process, known as splash condenser
dross residue (SCDR). This SCDR is typically considered a partially reclaimed
secondary material because it contains 50 to 60 percent zinc. SCDR is commonly sent
off site for further reclamation, reused on-site in the HTMR process, or reprocessed by
the HTMR on site.
EPA determined that the SCDR material generated by certain HTMR processes does
not pose a significant threat to human health and the environment as managed
currently and therefore excluded it from Subtitle C regulation. The exclusion applies
when the material is used as a source of zinc in zinc recovery operations, provided it is
shipped in drums (if sent off site) and not disposed of on the land at any point prior to
further recovery (56 FR 41164; August 19, 1991).
HAZARDOUS SECONDARY MATERIALS FROM THE PETROLEUM REFINING
INDUSTRY (§261.4(a)(12))
Hazardous Secondary Materials Generated and Recycled Within the Refining
Industry (§261.4(a)(12)(i))
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 7
Many hazardous sludges, by-products, and spent materials are generated throughout
the petroleum refining process. Often these secondary materials can be recycled back
into the refining process to recover their oil content. Under the current regulatory
definition of solid waste, secondary materials which are recycled in certain ways are
excluded from the definition of solid waste (e.g., characteristic sludges which are being
reclaimed) (§261.2). However, secondary materials that are used to produce fuels meet
the definition of solid waste (§261.2(e)(2)(ii)). Thus, any hazardous secondary materials
generated and recycled within the petroleum refining industry would have to be
managed under Subtitle C, since petroleum is by definition a fuel.
In order to promote recycling of these materials, EPA promulgated an exclusion for oil-
bearing secondary materials that are generated and recycled by the petroleum refining
industry (SIC code 2911). This exclusion applies to any oil-bearing material generated
at a petroleum refinery, including oil-bearing wastes commonly regulated as listed
hazardous wastes (i.e., F037, F038, K048-K052, K069-K072), when these materials are
reinserted into the petroleum refining process, including the coke quenching process
(63 FR 42110; August 6, 1998).
This exclusion is limited to secondary materials generated during refining operations
and does not extend to wastes generated elsewhere within the petroleum refining
industry, such as from petroleum exploration and production sites, bulk crude oil
storage, and petroleum industry-related transportation facilities. The secondary
materials can be recycled in an on-site refining process or can be sent directly to an off-
site petroleum refining facility to be reinserted back into the refining process,
including, but not limited to, distillation, catalytic cracking, fractionation, or thermal
cracking units (i.e., cokers). However, secondary materials that are inserted into a
petroleum coker only qualify for this exclusion if the resulting coke product does not
exhibit a characteristic of hazardous waste. Finally, all secondary materials that are
excluded from the definition of solid waste under this exclusion cannot be placed on
the land prior to recycling and cannot be speculatively accumulated.
Any residues generated from the recycling of oil-bearing hazardous secondary
material, which otherwise would have met a listing description, are considered F037
listed wastes if intended for, or sent for, disposal (63 FR 42110; August 6, 1998).
Recovered Oil (§261.4(a)(12)(ii))
In addition to the exclusion for secondary materials generated by and recycled within
the petroleum refining industry, secondary materials with significant oil content that
are generated during other phases of oil production may be excluded from the
definition of solid waste as recovered oil.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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8 - Solid and Hazardous Waste Exclusions
Recovered oil is a generic term that refers to materials that are primarily oil and that are
recovered from any phase of petroleum exploration, production, refining, and
transportation. This term generally refers to secondary materials such as oil/water
separator skimmings from plant wastewaters, slop oil and emulsions, oil skimmed
from ballast water tanks, and oil from refinery process units (59 FR 38536; July 28, 1994).
Recovered oil does not include listed oil-bearing hazardous wastes (i.e., F037, F038,
K048-K052, and K069-K072) because these wastes are generated within the refining
industry and can be recycled under §261.4(a) (12) (i). Used oil as defined in §279.1 does
not qualify as recovered oil.
EXCLUDED SCRAP METAL (§261.4(a)(13))
Processed scrap metal, unprocessed home scrap metal, and unprocessed prompt scrap
metal being recycled (collectively referred to as excluded scrap metal) are all excluded
from the definition of solid waste and therefore not subject to RCRA Subtitle C
regulations. EPA believes that excluded scrap metal being recycled is distinct from
other secondary materials defined as wastes when recycled due to established markets
for the material's use, inherent positive economic value of the material, the physical
form of the material, and the absence of damage incidents attributed to the material.
The Agency believes that these characteristics combined indicate that the above types
of scrap metal are sufficiently product-like, making RCRA jurisdiction over these
materials unnecessary.
Processed scrap metal is scrap metal that has been manually or mechanically altered to
either separate it into distinct materials to enhance economic value or to improve the
handling of materials. Processed scrap metal includes, but is not limited to, scrap
metal which has been bailed, shredded, sheared, chopped, crushed, flattened, cut,
melted, or separated by metal type, and fines, drosses and related materials which have
been agglomerated. Home scrap is scrap metal generated by steel mills, foundries, and
refineries such as turnings, cuttings, punchings, and borings. Prompt scrap, also
known as industrial or new scrap metal, is generated by the metal working/fabrication
industries and includes scrap such as turnings, cuttings, punchings, and borings (62 FR
25998; 26011; May 12, 1997).
Prior to this exclusion, scrap metal being reclaimed was a solid waste, but was exempt
from RCRA Subtitle C regulations. Scrap metal that does not meet the conditions of the
§261.4(a)(13) exclusion (i.e., all other scrap metal) continues to be exempt from
substantive Subtitle C regulation if being reclaimed (§261.6 (a) (3) (ii)).
SHREDDED CIRCUITS BOARDS (§261.4.(a)(14))
Shredded circuit boards being recycled are excluded from the definition of solid waste,
provided they are stored in containers sufficient to prevent release to the environment,
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 9
and are free of mercury switches, mercury relays, nickel-cadmium batteries, and
lithium batteries. "Free of these materials" means mercury switches or relays, or
cadmium or lithium batteries are not or have not been part of the shredded circuit
board batch. Shredded circuit boards that are not free of these materials are solid
wastes (spent materials) when reclaimed.
Shredded circuit boards are not considered scrap metal, because the process of
shredding the boards produces small fines from the whole board which are dispersible
and do not meet the RCRA regulatory definition of scrap metal. However, shredded
circuit boards can be considered secondary feedstocks, analogous to raw materials, if
they have demonstrated positive economic value and they are managed in a way that
reduces environmental risk (62 FR 25998, 26011-26012; May 12, 1997). Because
shredding is a common industry practice and is beneficial to the recovery process, the
Agency found this exclusion to be justified.
Whole circuit boards can meet the definition of scrap metal provided they are free of
mercury switches, mercury relays, lithium batteries, or nickel-cadmium batteries, or
have minimal quantities of mercury and batteries and are protectively packaged to
minimize dispersion of metal constituents (63 FR 28556, 28630; May 26, 1998). As scrap
metal, these whole circuit boards are exempt from regulation when recycled
PULPING CONDENSATES DERIVED FROM KRAFT MILL STEAM STRIPPERS
(§261.4(a)(15))
The kraft pulping process is the most commonly used pulping process today. It
utilizes various chemicals to break down wood into pulp. One of the options for
controlling emissions from kraft pulping process condensates is to remove the
hazardous air pollutants, primarily methanol, from the condensates using an air
pollution control device called a stripper. After the hazardous pollutants are removed,
a vent gas remains. Many mills then concentrate this vent gas by condensing, and
subsequently burning, the liquid methanol as fuel.
The condensed methanol may be ignitable, and therefore would subject the facilities
that burn this fuel to RCRA. EPA believes that this particular management practice
reduces secondary environmental impacts, and provides cost savings for the mills.
Consequently, the Agency promulgated an exclusion from the definition of solid waste
for condensates derived from kraft mill steam strippers. This exclusion applies only if
the waste is combusted at the mill that generated the condensates (63 FR 18533; April
15, 1998).
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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10 - Solid and Hazardous Waste Exclusions
COMPARABLE FUELS (§261.4(a)(16))
Hazardous waste-derived fuels that are comparable to fossil fuels are excluded from
the definition of solid waste. These exempted fuels have legitimate energy value and
hazardous constituent concentrations similar to fossil fuels. Consequently, EPA has
classified such fuels as products, rather than wastes. The exclusion promotes RCRA's
resource recovery goals without creating a risk greater than that posed by commonly
used commercial fuels. Only liquid and gaseous hazardous waste-derived fuels
qualify for this exclusion.
In addition, the generator of the comparable fuel is required to comply with sampling
and analysis requirements to demonstrate that the fuel is indeed comparable to fossil
fuels. EPA sets standards, or specifications, for the level of Part 261, Appendix VIII
hazardous constituents contained in the comparable fuel, the flash point, the heating
value, and the viscosity of the waste-derived fuel (§261.38). The generator must also
certify that the fuel is comparable, notify EPA and the public that a fuel will be burned
on site, and maintain records at the facility about the fuel (63 FR 33782, 33783; June 19,
1998).
MINERAL PROCESSING SECONDARY MATERIALS BEING RECYCLED
(§261.4(a)(17))
Mining and the recovery of mineral value from ores and minerals are processes that
generate many wastes. These wastes fall into three general categories: extraction,
beneficiation, and mineral processing. All extraction and beneficiation wastes and 20
specific mineral processing wastes are completely exempt from Subtitle C regulation
(§261.4(b) (7)). However, other mineral processing wastes are regulated as hazardous
wastes if they exhibit a characteristic.
Common industry practice is to recycle these mineral processing wastes back into the
mining process in order to recover additional mineral value from the materials. In
order to promote recycling of these secondary materials, EPA created a conditional
exclusion from Subtitle C regulation when these secondary materials are recycled as a
mineral processing secondary material. Specifically, these wastes must be managed in
containers, tanks, containment buildings, or on approved pads. In addition, the
materials must be legitimately recycled, they cannot be speculatively accumulated, and
a generator claiming the exclusion must submit a notification to their EPA region or
state (63 FR 28556, 28580; May 26, 1998).
PETROCHEMICAL RECOVERED OIL (§261.4(a)(18))
On August 6, 1998, EPA finalized an exclusion for recovered oil, generated at certain
organic chemical industry facilities, which is inserted into the petroleum refining
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 11
process provided certain conditions are met (63 FR 42110). The term "petrochemical
recovered oil" includes materials, which are primarily oil, and which are generated at
organic chemical industry operations. Only petrochemical recovered oil that is
hazardous because it exhibits the characteristic of ignitability or exhibits the toxicity
characteristic for benzene (or both) is eligible for this exclusion. Additionally, EPA has
clarified that this exclusion applies exclusively to recovered oil from "associated
organic chemical manufacturing facilities." Therefore, only organic chemical
manufacturing facilities (primary SIC code of 2869), which are adjacent to a refinery, or
whose operations are closely integrated with a petroleum refinery, are eligible for this
exclusion. Examples of highly integrated facilities might include instances where a
chemical manufacturing facility and refinery share a common wastewater treatment
system; share manufacturing units; or have environmental permits that cover both
facilities. Similar to the recovered oil exclusion from petroleum production
(§261.4(a)(12)(ii)), petrochemical recovered oil can be inserted into the petroleum
refinery process with normal petroleum refinery wastestreams. Finally, in order to
qualify for this exclusion, the petrochemical recovered must not be speculatively
accumulated or placed on the land prior to recycling into the petroleum refining
process.
SPENT CAUSTIC SOLUTIONS FROM PETROLEUM REFINING (§261.4(a)(19))
EPA finalized an exclusion from the definition of solid waste for spent liquid treating
caustics from petroleum refineries used as feedstocks in the manufacture of napthenic
and cresylic acid products provided the spent caustics are not placed on the land or
speculatively accumulated (63 FR 42110; August 6, 1998). EPA believes that spent
caustic, when used in this manner, is a valuable commercial feedstock in the
production of these particular products, and thus is eligible for an exclusion.
2.2 HAZARDOUS WASTE EXCLUSIONS
The second type of exclusion found under §261.4 excludes certain materials from the
definition of hazardous waste. Section 261.4(b) lists the exceptions to the hazardous
waste definition. If a material is listed under §261.4(b), it is a solid waste, but cannot be
a hazardous waste, even if the material technically meets a listing in §§261.31 through
261.33 or it exhibits a characteristic under §§261.21 through 261.24 (i.e., ignitability,
corrosivity, reactivity, or toxicity characteristic). If a waste excluded under §261.4(b) is
mixed with a listed or characteristic hazardous waste, it may render the waste no longer
excluded. Currently, there are 14 exclusions under §261.4(b).
HOUSEHOLD WASTE (§261.4(b)(l))
Under §261.4(b)(l), household waste is exempt from the RCRA Subtitle C regulations.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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12 - Solid and Hazardous Waste Exclusions
The term household waste refers to any garbage, trash, and sanitary waste from septic
tanks derived from single and multiple residences, and other residential units such as
hotels and motels. In order for household waste to be exempt from regulation, it must
meet two criteria: the waste has to be generated by individuals on the premises of a
household, and the waste must be composed primarily of materials found in the waste
generated by consumers in their homes. On November 13, 1984 (49 FR 44978), EPA
expanded the definition of household wastes to include wastes from bunkhouses,
ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation
areas. Although the collection, transportation, treatment, and disposal of household
wastes are not subject to Parts 262 through 270, they are subject to federal, state, and
local requirements concerning management of solid waste (45 FR 33066, 33099; May 19,
1980). This exclusion applies to all household waste, including household hazardous
wastes - wastes normally found in household wastestreams, such as paint cans,
batteries, and cleaning fluids.
AGRICULTURAL WASTE (§261.4(b)(2))
Solid wastes generated by crop or animal farming are excluded from hazardous waste
regulation provided the wastes are returned to the ground as fertilizers or soil
conditioners. Examples of such waste would be crop residues and manures. Congress
did not intend to include silviculture waste (i.e., forestry waste such as foliage and
branches) in this hazardous waste exclusion. As a result, generators of forestry waste
need to determine whether their waste is hazardous (45 FR 33066, 33099; May 19, 1980).
MINING OVERBURDEN (§261.4(b)(3))
Reclamation of surface mines commonly involves returning waste overburden (i.e.,
earth and rocks), removed to gain access to ore deposits, to the mine. EPA excluded
this waste because mining overburden is not a discarded material within the scope of
RCRA. This exclusion is limited to overburden that is overlying a mineral deposit (45
FR 33000; May 19, 1980).
"BEVILL AND BENTSEN" WASTES (§§261.4(b)(4), (5), (7), and (8))
In the Solid Waste Disposal Act Amendments of 1980, Congress amended RCRA by
exempting fossil fuel combustion wastes; oil, gas, and geothermal exploration,
development, and production wastes; mining and mineral processing wastes; and
cement kiln dust wastes from regulation as hazardous waste under RCRA pending
further study by EPA. These wastes were temporarily exempted based on the "special
waste" concept, the belief that these wastes should be regulated less stringently than
other wastes because they were produced in large volumes, were thought to pose less
of a hazard than other wastes, and were generally not amenable to the management
practices required under RCRA. "Bevill and Bentsen" refers to the two senators who
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 13
proposed these statutory exemptions. The following sections describe these exclusions
in detail.
FOSSIL FUEL COMBUSTION WASTE (§261.4(b)(4))
In order to accommodate effective study, fossil fuel combustion wastes were divided
into two categories, large-volume coal-fired utility wastes and remaining wastes, each
having different schedules for regulatory determination.
On August 9, 1993, EPA made the final regulatory determination on the first category,
permanently excluding large-volume coal-fired utility wastes (58 FR 42466). This
category includes fly ash, bottom ash, boiler slag, and flue gas emission control waste,
but only where they are managed alone or in combination, and not when they are co-
managed with other wastes.
EPA deferred the final regulatory determination on the remaining wastes; therefore,
these wastes continue to be exempt from Subtitle C regulation. The remaining waste
category includes wastes from utilities burning other non-coal fossil fuels, wastes from
non-utility boilers burning any type of fossil fuel, large-volume coal-fired utility wastes
that are co-managed with low-volume coal-fired utility wastes, and wastes generated
by fluidized bed combustion operations. The report to Congress on these remaining
wastes tentatively concludes to retain the exemption for all of the wastes except for oil
combustion waste disposal, and coal combustion wastes when used beneficially in
agricultural applications (Report to Congress: Wastes From the Combustion of Fossil
Fuels, Volume 1 Executive Summary: March 1, 1999). Until a final regulatory
determination is made for these remaining wastes by March 10, 2000 as ordered by
consent decree, they remain excluded at §261.4(b)(4).
Low volume wastes that are not co-managed with large-volume coal combustion
wastes, such as boiler blowdown, coal pile runoff, cooling tower blowdown,
demineralizer regenerant and rinses, metal and boiler cleaning wastes, pyrites, and
sump effluents, are not included in either of these categories. Based on the original
scope of the exclusion, they have always been subject to Subtitle C regulation when
managed independently.
Fossil fuel combustion wastes that are generated by co-processing raw materials and
hazardous wastes are also exempt under this exclusion provided the wastes meet
specific criteria outlined in §266.112.
OIL, GAS, AND GEOTHERMAL WASTES (§261.4(b)(5))
In December 1987, EPA issued a Report to Congress that outlined the results of a study
on the management, volume, and toxicity of wastes generated by the exploration,
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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14 - Solid and Hazardous Waste Exclusions
development, and production of crude oil, natural gas, and geothermal energy. On
July 6, 1988, EPA issued a final regulatory determination for these wastes which stated
that Subtitle C regulation was not appropriate, thus permanently excluding oil, gas,
and geothermal wastes under §261.4(b) (5) (53 FR 25446). The July 6, 1988. Federal
Register also clarified the scope of the exclusion by providing examples of excluded
wastes.
On March 22, 1993, EPA further clarified the scope of the exclusion in stating that
wastes that have been brought to the surface during oil and gas exploration and
production operations, or wastes that have otherwise been generated by contact with
the oil and gas production stream during the removal of produced water or other
contaminants, are generally covered by the exclusion (58 FR 15284).
MINING AND MINERAL PROCESSING WASTES (§261.4(b)(7))
Under the current provisions of the RCRA mining waste exclusion, solid waste from the
extraction and beneficiation of ores and minerals, and 20 specific mineral processing
wastes are exempt from regulation as hazardous wastes under RCRA. The mining
waste exclusion was established in response to §3001 (b) (3) of RCRA, which was added
through the 1980 Solid Waste Disposal Act amendments. The Bevill amendment
stopped EPA from regulating all wastes from extraction, beneficiation, and processing
until the Agency performed a study and submitted a Report to Congress and then
determined whether or not the wastes should continue to be excluded from Subtitle C
regulation. EPA modified the hazardous waste regulations in November 1980 to reflect
this exemption, and issued a preliminary and broad interpretation on the scope of the
coverage (45 FR 76619; November 19, 1980).
In 1984, EPA was sued for failing to complete the required Report to Congress and
regulatory determination in conformance with the statutory deadline (Concerned Citizens
ofAdamstown v. EPA). The court decision required EPA to address mining wastes
according to two schedules, one for completing the required study of extraction and
beneficiation wastes and the associated Report to Congress, and the second for issuing
a regulatory determination regarding mineral processing wastes.
In 1985, EPA submitted a Report to Congress on waste from mineral extraction and
beneficiation. After studying the wastes, EPA concluded that Subtitle C regulation was
not appropriate for such wastes primarily because of the high volumes of wastes
generated. EPA clarified later that the term beneficiation included only activities
outlined in §261.4 (b) (7).
EPA failed to meet the deadline for issuing the regulatory determination for mineral
processing wastes. As a result, the Agency was sued by a coalition of environmental
and special interest groups (Environmental Defense Fund v. EPA). In July of 1988, the
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 15
Agency was ordered to restrict the scope of the Bevill exclusion as it applied to mineral
processing wastes so it included only "special wastes" which were defined to be of such
"high volume" and "low hazard" that management under Subtitle C would be
impracticable. During the years following the lawsuit, EPA proposed and
promulgated several rules redefining the boundary of the exclusion for mineral
processing wastes. In 1991, EPA finalized a regulatory determination limiting the
exclusion to 20 specific mineral processing wastes. As a result, all mineral processing
wastes not specifically excluded in §261.4(b)(7) are subject to hazardous waste
regulations if characteristic.
In addition to the 20 mineral processing wastes specifically listed in §261.4(b)(7),
lightweight aggregate air pollution control dust and sludge remains conditionally
exempt from Subtitle C regulation. EPA will study this wastestream further before
issuing a final regulatory determination (63 FR 28566, 28600; May 26, 1998).
Beneficiation and processing of ores and minerals frequently occurs in industrial
furnaces. These furnaces may co-process ores and minerals with hazardous waste as
feedstock. Residues from co-processing hazardous wastes with ores and minerals only
remain exempt from Subtitle C as long as more than 50 percent of the feedstock is
primary ores and minerals, and as long as the hazardous waste portion of the feed does
not significantly affect the concentrations of toxic compounds in the resulting residue
(§266.112).
In the vast majority of cases, mineral processing wastes are generated from furnaces
(e.g., steel, copper, lead, and zinc). These mineral processing wastes may be recycled
on or off site if the owner and operator comply with the §261.4 (b) (7) (iii). Figure 1
illustrates the three parts of the exclusion.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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16 - Solid and Hazardous Waste Exclusions
Figure 1
MINING WASTE AND MINERAL
PROCESSING EXCLUSION
MINING WASTE
MINERAL PROCESSING
I
20 specific wastes currently excluded from
Subtitle C regulation §§261.4(b)(7)(i)-(xx)
These wastes are excluded from
Subtitle C regulation and are
defined in §261.4 (b) (7)
1
I
These wastes are excluded from
regulation under Subtitle C
^
^
Potentially regulated under
Industrial Subtitle D program
CEMENT KILN DUST (§261.4(b)(8))
Pending a study of its potential hazards, EPA excluded cement kiln dust (CKD) from
the definition of hazardous waste. CKD is a fine-grained solid by-product generated
by the control of particulate matter in stack emissions at cement production facilities.
In December 1993, EPA issued the Report to Congress on Cement Kiln Dust detailing
the generation and management of CKD, as well as five options for its future
regulation. Then on February 7, 1995, EPA issued the final regulatory determination of
CKD (60 FR 7366). EPA concluded that CKD requires stricter management controls, but
should not be placed under full Subtitle C regulation. On August 20, 1999, EPA
proposed that CKD would remain a nonhazardous waste provided that it is managed
in landfills that meet groundwater protection and fugitive dust control standards (64
FR 45632). In addition, EPA proposed tailored Subtitle C regulatory standards for CKD
that is not managed according to the conditions of the exclusion. EPA also proposed
concentration limitations on certain pollutants in CKD that is used for agricultural
purposes.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 17
Often cement kilns combine fossil fuel with hazardous waste to heat the kilns. CKD
generated in cement kilns which combine fossil and hazardous waste fuel does not
automatically fall within the scope of the exclusion. The CKD would remain exempt
from hazardous waste regulation only if the hazardous portion of the feedstock does
not significantly affect the concentrations of toxic compounds in the resulting residue
(§266.112).
TRIVALENT CHROMIUM WASTES (§261.4(b)(6))
Under §261.4(b)(6), wastes that exhibit the toxicity characteristic for chromium from
certain industries are excluded from the definition of hazardous waste. Specific
industries petitioned EPA (§260.20) to exclude their wastes from the hazardous waste
lists for the following reasons:
• The chrome they produce is nearly exclusively trivalent, which is not considered
to be hazardous
• Their process does not generate hexavalent chromium (a known carcinogen)
• The waste they produce is handled in a nonoxidizing environment (i.e., the
trivalent chrome could not oxidize to hexavalent chrome).
EPA agreed with the data submitted by these industries and on October 30, 1980 (45 FR
72035), excluded three groups of wastes:
• Tannery wastes described in §§261.4 (b) (6) (ii) (A)- (F) (Wastes fitting these
descriptions had been listed as K053-K058, but these waste codes were
subsequently deleted (57 FR 72037; October 30, 1980))
• Leather scrap wastes from the leather tanning, shoe manufacturing, and other
leather manufacturing industries (§261.4 (b) (6) (ii) (G))
• Wastewater treatment sludges from the production of titanium oxide (TiO2)
pigment using chromium-bearing ores by the chloride process
(§261.4(b)(6)(ii)(H)) (waste fitting this description was listed as K074, but the
waste code was subsequently deleted (45 FR 72029, 72037; October 30, 1980)).
The exclusion is necessary despite the deletion of waste codes K053-K058 and K074
because these wastes could still exhibit the toxicity characteristic for chromium, since
the Toxicity Characteristic Leaching Procedure (TCLP) does not distinguish between
hexavalent and trivalent chromium.
Only chromium-bearing wastes from the three industry groups discussed above
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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18 - Solid and Hazardous Waste Exclusions
automatically qualify for the exclusion. Other industries or individual generators who
believe their wastes meet the same criteria must petition the Administrator under
§260.20(a) to be added to this exclusion, or they may, under §260.22, petition EPA to
delist the waste (45 FR 72036; October 30, 1980). For more information, see the module
entitled Petitions, Delistings, and Variances.
ARSENICALLY TREATED WOOD (§261.4(b)(9))
Under §261.4(b) (9), a solid waste that consists of discarded arsenical-treated wood or
wood products that fails the TCLP for D004 - DO 17 only, and is not hazardous for any
other reason, is excluded from Subtitle C regulation (57 FR 30657; July 10, 1992). Once
such treated wood is used, it may be disposed of by the user (commercial or
residential) without being subject to hazardous waste regulation. This exclusion was
granted in response to a petition from the American Wood Preserving Institute on the
grounds that the use of arsenically treated wood in contact with the ground presents
risks that are similar to land disposal of wood. Note that this exclusion applies only to
end-users and not to manufacturers. Wastes generated by sawmills or facilities which
apply the arsenic formulation to the wood are potentially regulated under RCRA
Subtitle C (45 FR 78530; November 25, 1980; and 55 FR 11798, 11839; March 29, 1990).
PETROLEUM CONTAMINATED MEDIA AND DEBRIS FROM UNDERGROUND
STORAGE TANKS (§261.4(b)(10))
Until further studies are completed on the extent and threat of releases from petroleum
underground storage tanks (USTs), the Agency deferred the application of the toxicity
characteristic to petroleum-contaminated media and debris. This deferral only applies
to USTs subject to the Part 280 corrective action requirements, and only to the 25 newly
identified organic constituents (DO 18 through D043) under the toxicity characteristic in
§261.24 (55 FR 11836; March 29, 1990). EPA proposed to make this temporary deferral a
permanent exclusion (58 FR 8504; February 12, 1993), and the proposal is expected to
become a final rule in December 1999.
In order to fall under this exclusion, the waste must meet the specific criteria listed
above. For example, this exclusion would not apply if soil failed the TCLP for lead
(D008), since lead is not a newly identified waste under the TCLP (it was previously
identified as an EP waste). Rather, it would be subject to full regulation under Subtitle
C. On the other hand, if the soil only failed the TCLP for one of the new organic
constituents, such as benzene (D018), the soil would only be subject to the corrective
action requirements under Part 280.
HYDROCARBON RECOVERY OPERATIONS (§261.4(b)(ll))
Previously, EPA excluded certain types of injected groundwater that is reinjected as
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 19
part of a hydrocarbon recovery operation under §261.4(b)(ll) (55 FR 46829; November
27, 1990). This exclusion expired January 25, 1993.
SPENT CHLOROFLUOROCARBON REFRIGERANTS (§261.4(b)(12))
Chlorofluorocarbons (CFCs) released to the atmosphere damage the ozone layer. To
promote recycling and discourage the practice of venting used CFCs into the
atmosphere in order to avoid Subtitle C regulation, the Agency has provided an
exclusion for CFCs that are recycled (i.e., reclaimed for reuse) (56 FR 5910; February 13,
1991).
USED OIL FILTERS (§261.4(b)(13))
EPA has established an exclusion from the definition of hazardous waste for used oil
filters. This exclusion is only for non-terne plated used oil filters that are gravity hot-
drained by one of the following methods:
• Puncturing the filter anti-drain back valve or the filter dome end and hot-
draining (with this method, EPA recommends hot-draining for a minimum of 12
hours)
• Hot draining and crushing
• Dismantling and hot-draining (EPA recommends separating each component
and recycling it)
• Any equivalent method of hot-draining that will remove the oil.
Terne-plated filters are not included in this exclusion because the terne-plated filters
often exhibit the toxicity characteristic for lead (D008), and are therefore subject to
Subtitle C regulation (i.e., a hazardous waste determination). In addition, used oil that
is removed from filters is subject to regulation under the Part 279 used oil management
standards. This exclusion was originally codified in §261.4(b) (15) but was moved to
§261.4(b)(13) (58 FR 26420; May 3, 1993).
USED OIL DISTILLATION BOTTOMS (§261.4(b)(14))
EPA exempted distillation bottoms from the re-refining of used oil from Part 279
regulation when the bottoms are used as ingredients in asphalt paving and roofing
materials (§279.10(e)(4)) (57 FR 41566; September 10, 1992). EPA's decision not to
regulate the bottoms is based on data indicating that these wastes do not exhibit the
toxicity characteristic and that common industry practices are protective of human
health and the environment. EPA codified a corresponding exclusion from the
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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20 - Solid and Hazardous Waste Exclusions
definition of hazardous waste for this material in §261.4(b) (14) (58 FR 26420; May 3,
1993).
LEACHATE OR GAS CONDENSATE FROM LANDFILLS CARRYING THE K169,
K170, K171, AND K172 LISTINGS (§261.4(b)(15))
Landfill leachate and landfill gas condensate derived from previously disposed wastes
that now meet the listing description of one or more of the petroleum refinery listed
wastes, K169, K170, K171, and K172, are temporarily deferred from the definition of
hazardous waste provided their discharge is regulated under CWA. Additionally, they
can not be managed in surface impoundments after February 13, 2001, unless the
surface impoundment has a double liner and is only used to temporarily store landfill
leachate or landfill gas condensate in the event of an emergency (64 FR 6806; February
11, 1999). The exclusion does not apply to leachate or gas condensate that exhibits any
of the characteristics of hazardous waste or is derived from any waste codes other than
the four petroleum refinery wastes described in the exclusion. Any residue generated
from treating excluded leachate or gas condensate must also be evaluated to determine
if it exhibits a characteristic.
This exclusion will remain effective while EPA examines the specific aspects of how the
landfill leachate and landfill gas condensate are currently managed, whether Subtitle C
regulation is appropriate, and the affect of the future CWA effluent limitation
guidelines for landfill wastewaters.
2.3 EXCLUSIONS FOR RAW MATERIAL, PRODUCT AND
PROCESS UNIT WASTES
Under §261.4(c), hazardous waste generated in raw material, product storage, or
manufacturing units is excluded from Subtitle C regulation, as long as the waste
remains in the unit. These units include tanks, pipelines, vehicles, and vessels used
either in the manufacturing process, or for storing raw materials or products, but
specifically do not include surface impoundments (45 FR 72024; October 30, 1980).
Once the waste is removed from the unit, the waste is considered to be generated and is
subject to regulation. Thus, the generator accumulation standards apply once the
waste is removed from a unit, or when a unit temporarily or permanently ceases
operation for 90 days.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 21
2.4 SAMPLE AND TREATABILITY STUDY EXCLUSIONS
Because samples are small, discrete amounts of hazardous waste that are essential to
accurate characterization and proper hazardous waste management, EPA developed
two types of exclusions for lab samples. The regulations distinguish between and
create separate requirements for characterization samples (§261.4(d)) and treatability
study samples (§§261.4(e) and (f)).
WASTE CHARACTERIZATION SAMPLES (§261.4(d))
EPA excluded small samples of wastes from the requirements of Parts 262 through 268,
270, 124, and the notification requirements under RCRA §3010, provided that the
samples are collected and shipped for the sole purpose of determining hazardous
waste characteristics or composition (46 FR 47426; September 25, 1981). Storage,
transportation, and testing of the sample are excluded from RCRA regulation even
when the lab testing is complete, provided the sample is returned to the generator, and
as long as the specific provisions in §261.4(d) are met. When shipping the sample to or
from the laboratory, the sample collector must comply with certain labeling
requirements, as well as any applicable U.S. Postal Service or Department of
Transportation shipping requirements (§261.4(d)(2)).
The lab sample exclusion is intended to apply to small samples. Although the
regulations do not specify a size limit, EPA has stated that typically no more than one
gallon is needed to completely characterize a sample for purposes of compliance with
RCRA or other federal, state, or local regulations.
TREATABILITY STUDY SAMPLES (§§261.4(e) and (f))
Various industry groups and individuals expressed concern that the waste
characterization sample exclusion was too restrictive. In response to these comments,
EPA developed regulations for waste samples used in small-scale waste treatability
studies. Treatability studies are used to determine information such as whether a
treatment process is efficient, or what types of wastes remain after the treatment is
complete. Section 261.4(e) conditionally excludes persons who generate or collect
samples for the sole purpose of conducting treatability studies from the requirements
of Parts 261 through 263 and the notification requirements of RCRA §3010, provided the
conditions in §§261.4(e)(l) through (3) are met. These requirements include packaging,
labeling, and recordkeeping.
Both the treatability samples and the laboratories conducting such treatability studies
are excluded from the requirements in Parts 261 through 266, 268, and 270, and the
notification requirements of RCRA §3010 as long as the provisions in §§261.4(f)(l)
through (11) are met. On February 18, 1994, EPA modified the treatability study
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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22 - Solid and Hazardous Waste Exclusions
exclusions by increasing the time and quantity limits for contaminated media and
debris (59 FR 8362).
2.5 DREDGED MATERIAL EXCLUSION (§261.4(g))
Dredging large volumes of sediment from United States waters is a common practice
used to maintain navigable waterways, ports and marinas. Excavated dredged
material is currently disposed in the ocean at designated sites in accordance with
MPRSA. Additional options for disposing of dredged material exist under CWA
including discharge into open waters of the United States, discharge to confined
disposal facilities located in the United States, and the use of dredged material for
beneficial uses. Prior to the promulgation of this exclusion, if dredged material
proposed for disposal in the aquatic environment was contaminated or suspected of
being contaminated with hazardous waste, the potential application of both RCRA
Subtitle C regulations and the dredged material regulations under CWA or MPRSA
complicated efficient assessment and management of dredged material. In order to
avoid duplicative regulation, dredged material subject to a permit that has been issued
under §103 of MPRSA, or §404 of CWA is excluded from the definition of hazardous
waste (63 FR 65874, 65921; November 30, 1998).
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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Solid and Hazardous Waste Exclusions - 23
3. SPECIAL ISSUES
Although the scope of the exclusions is usually straightforward, there are many issues
requiring clarification beyond the regulatory or statutory descriptions of the exclusions.
This section discusses a few of these issues that can arise during Hotline calls.
3.1 FEDERALLY OWNED TREATMENT WORKS
The original exclusion for domestic sewage and mixtures of domestic sewage only
applied to wastes that passed through a sewer system to a publicly owned treatment
works (§261.4(a) (1)); however, the Federal Facilities Compliance Act of 1992 amended
RCRA's statutory language in §1004(27) to include solid or dissolved material
introduced by a source into a federally owned treatment works. This expanded the
scope of the exclusion to include both publicly owned treatment works and federally
owned treatment works.
3.2 HOUSEHOLD HAZARDOUS WASTE COLLECTION
PROGRAMS
Based on the exclusion found in §261.4(b)(l), household hazardous wastes are solid
wastes that are exempt from the definition of hazardous waste, but are still subject to
Subtitle D regulation. This exclusion extends to those who collect household
hazardous waste, either in community collection programs or private sector collection
programs. Household hazardous waste that is mixed with small quantity or large
quantity generator wastes, however, may be subject to full Subtitle C regulation. In
addition, CERCLA liability may exist for persons managing household hazardous
wastes that contain a hazardous substance as defined by CERCLA, even if it is not
within the definition of a RCRA hazardous waste.
3.3 MUNICIPAL WASTE COMBUSTION ASH
Municipal waste combustion ash (MWC) generated by waste-to-energy (WTE) facilities
burning household waste and nonhazardous commercial and industrial waste is not
exempt from Subtitle C regulations based on a judicial interpretation of RCRA §3001 (i).
The court stated that even though the waste-to-energy facilities remain exempt from
Subtitle C requirements as treatment, storage, or disposal facilities based on RCRA
§3001 (i), the ash they produce is subject to hazardous waste determination under
Subtitle C (60 FR 6666; February 3, 1995). The regulation of municipal waste
combustion ash will be discussed in further detail in the module entitled Solid Waste
Programs.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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24 - Solid and Hazardous Waste Exclusions
4. REGULATORY DEVELOPMENTS
In recent years, EPA has proposed new exclusions from the definition of solid and
hazardous waste. The following is a brief discussion of the proposed exclusions.
4.1 DEFERRAL FROM RCRA FOR THE MANAGEMENT AND
DISPOSAL OF LEAD-BASED PAINT DEBRIS
EPA proposed to temporarily suspend the applicability of the toxicity characteristic for
lead to lead-based paint (LBP) debris generated at target housing and public and
commercial buildings for which management and disposal standards have been
proposed under Toxic Substances Control Act (TSCA) Title IV (63 FR 70233; December
18, 1998). EPA studies indicate that under the new TSCA standards, LBP debris will be
identified, managed, and disposed of in a less costly and more time efficient manner
than current RCRA regulatory requirements permit. EPA expects to publish a final rule
in November 2000 (64 FR 21898; April 26, 1999).
4.2 PETROLEUM-CONTAMINATED MEDIA AND DEBRIS FROM
NON-USTS
The Agency has proposed a separate three-year exclusion for petroleum-contaminated
media and debris from non-USTs (e.g., aboveground tanks, pipelines, and
transportation vehicles) (57 FR 61542; December 24, 1992). The suspension would only
apply in states which certify that they have an effective program in place to compel
cleanup of spills and control disposal of these wastes, and that the cleanup is state-
supervised, state-approved, or under federal authority.
EPA stated in the final Hazardous Waste Identification Rule for media (HWIR-media),
that it plans to continue reviewing the issues addressed in the proposal, but that no
final regulatory determination would be taken at the present time (63 FR 65874, 65931-
65932; November 30, 1998). Until EPA takes final action in specifically addressing
petroleum contaminated media and debris, petroleum-contaminated media and debris
from non-USTs are subject to hazardous waste regulations if they exhibit a
characteristic or contain a listed hazardous waste.
The information in this document is not by any means a complete representation of EPA's regulations or policies,
but is an introduction to the topic used for Hotline training purposes.
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