RCRA Superfund EPCRA Hotline Training Module Introduction to Solid and Hazardous Waste Exclusions 40 CFR Part 261 4 Updated July 1997


United States
Environmental Protection
Agency	
Solid Waste and
Emergency Response
(5305W)
EPA530-R-97-069
  PB98-108244
 November 1997
    RCRA, Superfund & EPCRA
        Hotline Training Module
   Introduction to:
       Solid and Hazardous Waste
               Exclusions
              (40 CFR Part 261.4)
           Updated July 1997

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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 document 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,
enforceable by any party in litigation with the United States.
                        RCRA, Superfund & EPCRA Hotline Phone Numbers:

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                         The Hotline is open from 9 am to 6 pm Eastern Time,
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S0272-101
REPORT DOCUMENTATION
PAGE
• 1. REPORT NO.
• EPA530-R-97-069
2.
4. Title and Subtitle
RCRA, SUPERFUND, AND EPCRA HOTLINE TRAINING MODULE: INTRODUCTION TO
SOLID AND HAZARDOUS WASTE EXCLUSIONS (40 CFR SECTION 261.4)
0 5. Report Date
• NOVEMBER 1997
0 6.
7. Author(s)
8. Performing Organization Rept. No
9. Performing Organization Name and Address

U.S. EPA
OFFICE OF SOLID WASTE
401 N STREET, SU
WASHINGTON. DC 20460
• 10. Project/Task/Uork Unit No.
O
0 11. Contract
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SOLID AND HAZARDOUS WASTE EXCLUSIONS
CONTENTS
1. Introduction , , , ,. 1

2. Regulatory Summary 3
2.1 Solid Waste Exclusions , 3
2.2 Hazardous Waste Exclusions 9
2.3 Exclusions For Raw Material, Product and Process Unit Wastes 17
2.4 Sample and Treatability Study Exclusions 17

3. Special Issues... 19
3.1 Federally Owned Treatment Works 19
3.2 Household Hazardous Waste Collection Programs 19
3.3 Municipal Waste Combustion Ash 19

4. Regulatory Developments 21
4.1 Comparable Fuels 21
4.2 Mineral Processing Secondary Materials 21
4.3 Recovered Oil From Petrochemical Facilities 21
4.4 Spent Liquid-Treating Caustics.... 22
4.5 Petroleum-Contaminated Media And Debris From Non-USTs 22
4.6 Mining And Mineral Processing Wastes 22
4.7 HWIR-Media 22
4.8 Dredged Material 23
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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 very
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
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.
-------
Solid and Hazardous Waste Exclusions - 3 '
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
four 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 two categories
are conditional exclusions that only apply when the provisions established under
each section are met. For example, §261,4(c) contains an exclusion for hazardous
waste generated in raw material, product storage, or manufacturing units. The final
category is a limited exclusion for laboratory samples and waste treatability studies.
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 four 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 (TC)), or would otherwise be a
waste listed in Part 261, Subpart D. Currently there are 14 exclusions under §261.4(a).
These materials are excluded for a variety of reasons, including public policy,
economic impacts, prior regulation, lack of data, or the waste's high volume and
low toxicity. 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 (embodied in the regulations).

DOMESTIC SEWAGE AND MIXTURES OF DOMESTIC SEWAGE (§261.4(a)(D)

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
EE 33066,33097; May 19,1980).

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

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
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 solid waste (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 Clean Water Act (CWA) regulations
and local restrictions. Note that the CWA may prohibit discharges of certain
chemicals and wastes into a sewer system.

RCRA hazardous wastes, once mixed with sewage in the POTW's 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. The 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
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).
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
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) since they were first regulated under the 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, the waste is regulated by both the 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 §261.1 (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,
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
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
• 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 for
reclaimed spent wood preserving solutions and wastewaters containing spent
preservative that are reused for their original purpose, found in §261.4(a)(9) (55 FR
50450,50460; December 6,1990).

Both spent preserving solutions and wastewaters are solid and hazardous wastes
until they are reclaimed (normally by filtration), but cease being solid wastes once
reclamation is completed if the reclaimed material is used to treat wood (56 FR
30192; July 1,1991).

EPA has proposed to expand this exclusion for wood preserving wastewaters and
spent wood preserving solutions that are recycled and reused on-site. To qualify for
this proposed exclusion, the wastewater or spent solution would need to be reused
for its intended purpose and managed in a manner that prevents releases to the
land or groundwater (62 FR 26041; May 12,1997)

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 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 TC, when recycled in the
following manner:

* Returned to the coke oven as a feedstock to produce coke; 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 is exempted from Subtitle C regulation. This SCDR
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).

RECOVERED OIL FROM PETROLEUM REFINING OPERATIONS (§261.4(a)(12))

Recovered oil is a generic term that 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).

The exclusion from the definition of solid waste at §261.4(a)(12) applies to the
recovered oil that is returned to the petroleum refinery along with the normal
process streams, provided the oil is not managed on the land or accumulated
speculatively before placement in the refinery process. In addition, the exclusion
does not apply to the water-in-oil emulsions before the oils are recovered. Thus
management of these wastes before separation could be subject to Subtitle C
management requirements.
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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1
» !
8 - Solid and Hazardous Waste Exclusions
The original exclusion required the placement of the recovered oil back in the
process at a point prior to distillation or catalytic cracking. EPA has since amended
this exclusion (61 FR 13103; March 26, 1996) to include points elsewhere in the
refining process where separation of contaminants occurs; the current exclusion
applies to recovered oil inserted into the petroleum refining process at or before a
point "where contaminants are removed."

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 these characteristics make these
types of scrap metal sufficiently product-like, making RCRA jurisdiction over these
materials unnecessary.

Processed scrap metal is scrap metal which 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 metals not meeting the
requirements of the excluded scrap metal exclusion that are being reclaimed still
qualify for this exemption from Subtitle C regulations (§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, 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.
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
At this time whole circuit boards meet the definition of scrap metal and are
therefore exempt from regulation when recycled (§261.6(a)(3)(ii)). Since shredded
circuit boards do not meet the definition of scrap metal, they are no longer exempt
from regulation as scrap metal, even when being recycled. As shredding is a
common industry practice and is beneficial to the recovery process, the Agency feels
this exclusion is justified. The fact that shredded boards can be thought of as
secondary feedstocks analogous to raw materials, have demonstrated positive
economic value and markets, and are managed in a manner that minimizes
environmental risk, serves as further justification for this exclusion (62 FR 25998;
26011; May 12,1997).
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.,
ignitable, corrosive, reactive, or TC hazardous). 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. Presently there are 14 exclusions (§§261.4(b)(l) through (14)).

HOUSEHOLD WASTE (§261.4(b)(D)

Under §261.4(b)(l), household waste is exempt from the RCRA Subtitle C
regulations. 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 F_R 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 ER 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, bug spray, 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

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
conditioners. Examples of such waste would be crop residues and manures.
Congress did not intend to include silviculture waste (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 £R 33000; May 19,1980).

"BEVILL AND BENTSEN" WASTES (§§261.4(b)(4), (5), (7), (8))

In the Solid Waste Disposal Act Amendments of 1980, Congress amended RCRA by
exempting fossil fuel combustion wastes; oil, gas, and gepthermal 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 very 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. 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 remaining wastes; however,
these wastes continue to be exempt from Subtitle C regulation until that
determination is made in 1998, 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 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
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, 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))

On May 19,1980, EPA promulgated regulations under RCRA Subtitle C that
stated that any waste material resulting from mining operations would meet the
definition of a solid waste, and thus may meet the definition of a hazardous
waste if it exhibited a hazardous characteristic(s). On October 21,1980, before the
Subtitle C regulations went into effect, Congress enacted the Solid Waste
Disposal Act of 1980, which added §3001(b)(3)(A)(ii) to RCRA. This section
created an exclusion from the definition of hazardous waste for wastes from the
extraction, beneficiation, and processing of ores and minerals, pending a RCRA
§8002(p) study on the hazards of these wastes and a final regulatory
determination. On November 19, 1980, EPA promulgated an exclusion for "solid
waste from the extraction, beneficiation, and processing of ores and minerals
(including coal), including phosphate rock, and overburden for the mining of
uranium ore" (45 FR 76618, 76620). This is one of the exclusions commonly
referred to as a Bevill exclusion, named after a co-author of the statutory
amendment, Congressman Bevill.
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
In 1985, EPA submitted a Report to Congress on mining wastes. After studying
these mining wastes, EPA concluded that Subtitle C regulation was not
appropriate. As a result, wastes from the extraction and beneficiation of ores and
minerals remained exempt from Subtitle C requirements. EPA later limited the
term beneficiation for the exemption to include only those activities outlined in
§261.4(b)(7).

From 1980 until 1989, all wastes that met the descriptive definition of "...solid
waste from the exploration, mining, milling, smelting and refining of ores and
minerals" (45 FR 76619) were considered exempt mineral processing wastes. On
September 1,1989, EPA published a final rule that narrowed the scope of the
exclusion as it applies to mineral processing by identifying and listing 25
excluded mineral processing wastes (54 FR 36592). Specifically, EPA finalized the
exclusion for 5 mineral processing wastes and conditionally excluded 20 wastes
pending additional studies. After completing a study of the 20 wastes, EPA
removed 5 of the wastes that had been subject to the September 1,1989,
conditional exclusion, bringing the total number of excluded mineral processing
wastes to 20 (55 FR 2322; January 23,1990). In 1990, EPA studied these 20 mineral
processing wastes and submitted a report to Congress on their volume and
toxicity. EPA then issued a final regulatory determination that finalized the
exempt status for the 20 mineral processing wastes in §261.4(b)(7) (56 FR 27300;
June 13,1991).

For purposes of the §261.4(b)(7) exclusion, EPA made special distinctions between
extraction/beneficiation and mineral processing wastes. Wastes determined by EPA
to be from the extraction/beneficiation of ores and minerals are covered by the
exclusion, while wastes from mineral processing, except for the 20 wastes listed in
§261.4(b)(7), are subject to RCRA Subtitle C regulations. 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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Solid and Hazardous Waste Exclusions -13
Figure 1
MINING WASTE AND MINERAL
PROCESSING EXCLUSION
MINING WASTE
MINERAL PROCESSING
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)
These wastes are excluded from
regulation under Subtitle C
Potentially regulated under
Industrial Subtitle D program
The beneficiation and processing of ores and minerals frequently occurs in
industrial furnaces. These industrial furnaces can be fueled with a combination of
fossil fuel and hazardous waste. Mining and mineral processing wastes generated in
industrial furnaces which combine fossil and hazardous waste fuel do not
automatically fall within the scope of the exclusion. The mining and mineral
processing waste would remain exempt under §261.4(b)(7) only if the residues were
below levels established in §266.112.

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.
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
Thus, EPA is expecting to develop tailor-made regulations for CKD within the next
few years under the authority of RCRA. A proposed rule is expected in January
1998. Until EPA promulgates these new regulatory controls, however, CKD will
generally remain exempt from all RCRA hazardous waste management
requirements.

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 do not
automatically fall within the scope of the exclusion. The CKD would remain
exempt from hazardous waste regulation only if the residues were below levels
established in §266.112. This exemption will disappear once Subtitle C requirements
for CKD are promulgated.

TRIVALENT CHROMIUM WASTES (§261.4(b)(6))

Under §261.4(b)(6), chromium-bearing TC hazardous wastes from certain industries
are excluded. 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 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 F_R 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.

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
Only chromium-bearing wastes from the three industry groups discussed above
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 Toxicity Characteristic Leaching Procedure (TCLP) for
D004 - D017 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 which 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 (D018 through DQ43) under
the toxicity characteristic in §261,24 (55 ER 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 1998.

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.
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
HYDROCARBON RECOVERY OPERATIONS (§261.4(b)(lD)

Previously, EPA excluded certain types of injected groundwater that is reinjected as
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 to be recycled (i.e., if the refrigerants are 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 for non-terne plated used oil filters provided the filters
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 F£ 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
TC and that common industry practices are protective of human health and 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 -17
environment. EPA codified a corresponding exemption from the definition of
hazardous waste for this material in §261.4(b)(14) (58 FR 26420; May 3,1993).
2.3 EXCLUSIONS FOR RAW MATERIAL, PRODUCT AND PROCESS
UNIT WASTES (§261.4(c))

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.
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 (typically under one
gallon). Even though 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.
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
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 exempts 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, 270, and
the notification requirements of RCRA §3010 as long as the provisions in
§§261.4(0(1) through (11) are met On February 18,1994, EPA modified the
treatability study exclusions by increasing the time and quantity limits for
contaminated media and debris (59 FR 8362).
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 Hotlii
iline training purposes.
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Solid and Hazardous Waste Exclusions -19
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)(l)); 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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20 - Solid and Hazardous Waste Exclusions
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
4. REGULATORY DEVELOPMENTS
In recent years, EPA has proposed several new exclusions from the definition of
solid and hazardous waste. The following is a brief discussion of the proposed
exclusions.
4.1 COMPARABLE FUELS (§261.4(a)(13))

On April 19,1996, EPA proposed to exclude materials burned for energy recovery
from the definition of solid and hazardous waste, provided these materials meet
specification levels for concentrations of toxic constituents and physical properties
that affect burning (61 FR 17549). Generators that comply with sampling and
analysis, notification and certification, and recordkeeping requirements would be
eligible for this exclusion. A final rule is expected September 1997.
4.2 MINERAL PROCESSING SECONDARY MATERIALS
PROCESSED IN BENEFICIATION UNITS (§§261.4

On May 12,1997, EPA proposed that mineral processing secondary materials that are
legitimately recycled within another mineral processing operation are not solid
wastes provided the storage that precedes the recycling does not entail land
placement, unless there is a volumetric necessity to use land-based storage units. If
the high volume criterion is met, the land-based unit must meet risk-based
performance standards, minimum design criteria, or receive a site-specific
determination that the unit is not a disposal unit, in order for the waste to be
excluded. Additionally, if the wastes are stored in tanks, containers, or containment
buildings, the units must meet certain minimum integrity standards (62 FR 26041,
26048; May 12,1997).
4.3 RECOVERED OIL FROM PETROCHEMICAL FACILITIES

The recovered oil exclusion under §261.4(a)(12) applies to oil recovered from a
wastewater treatment system that a refinery shares with a co-located petrochemical
facility. However, the exclusion does not apply to recovered oil that is sent to a
petroleum refinery for recycling via any route other than a shared wastewater
treatment system (e.g., via truck, rail, etc.). EPA proposed on November 20,1995, to
expand the exclusion to cover recovered oil that is sent from petrochemical facilities
to co-located or commonly owned refineries for recycling by other means of
transport (60 FR 57747, 57755).
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
4.4 SPENT LIQUID-TREATING CAUSTICS

EPA proposed on November 20, 1995, to exclude from the definition of solid waste
spent liquid-treating caustics from petroleum refineries that are used as feedstocks
in the manufacture of naphthenic and cresylic acid products. Without this
exclusion, these materials may be considered spent materials being reclaimed which
are subject to RCRA regulation (60 F£ 57747, 57770).
4.5 PETROLEUM-CONTAMINATED MEDIA AND DEBRIS FROM
NON-USTS (§261.4(b)(ll))

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 that 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.

This proposal was suspended until final action is taken on the Hazardous Waste
Identification Rule (HWIR), which is expected to be finalized in June 1998. EPA has
stated that if the HWIR-Media Rule is finalized, there will be no need for the
exclusion for petroleum-contaminated media and debris from non-USTs (61 FR
18779,18784; April 29,1996).

Until EPA finalizes the HWIR-Media Rule, 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.
4.6 MINING AND MINERAL PROCESSING WASTES (§261.4(b)(7))

On May 12,1997, EPA proposed that wastes resulting from the co-processing of
Bevill and non-Bevill materials in a beneficiation unit would no longer meet the
conditions of the §261.4(b)(7) exclusion, regardless of whether the non-Bevill
material exhibits a characteristic of hazardous waste (62 FR 26041, 26052; May 12,
1997).
4.7 HWIR-MEDIA (§261.4(g))

On April 29, 1996, EPA proposed that once the implementing agency has made a
decision that media with constituents at certain concentrations no longer contain
hazardous waste (i.e., "a contained-in decision"), the media may no longer be
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
regulated as hazardous waste under RCRA (61 Fg 18779; April 29,1996). For further
discussion, see the module entitled Hazardous Waste Identification.
4.8 DREDGED MATERIAL (§261.4(h))

On April 29,1996, EPA proposed to establish that dredged material disposed in
waters in accordance with section 404 of the Clean Water Act (CWA) or section 103
of the Marine Protection, Research, and Sanctuaries Act (MPRSA) would not be
subject to RCRA. This proposal is intended to eliminate potential overlap of RCRA
Subtitle C with the CWA and MPRSA programs (61 FR 18779,18831; April 29,1996).
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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