PART 260—HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 6937, 6938, 6939, 6939g, and 6974. Source: 45 FR 33073, May 19, 1980, unless otherwise noted. Subpart A—General § 260.1 Purpose, scope, and applicability. (a) This part provides definitions of terms, general standards, and overview information applicable to parts 260 through 265 and 268 of this chapter. (b) In this part: (1) Section 260.2 sets forth the rules that EPA will use in making information it receives available to the public and sets forth the requirements that generators, transporters, or owners or operators of treatment, storage, or disposal facilities must follow to assert claims of business confidentiality with respect to information that is submitted to EPA under parts 260 through 265 and 268 of this chapter. (2) Section 260.3 establishes rules of grammatical construction for parts 260 through 265 and 268 of this chapter. (3) Section 260.10 defines terms which are used in parts 260 through 265 and 268 of this chapter. (4) Section 260.20 establishes procedures for petitioning EPA to amend, modify, or revoke any provision of parts 260 through 265 and 268 of this chapter and establishes procedures governing EPA's action on such petitions. (5) Section 260.21 establishes procedures for petitioning EPA to approve testing methods as equivalent to those prescribed in parts 261, 264, or 265 of this chapter. (6) Section 260.22 establishes procedures for petitioning EPA to amend subpart D of part 261 to exclude a waste from a particular facility. [45 FR 33073, May 19, 1980, as amended at 51 FR 40636, Nov. 7, 1986] § 260.2 Availability of information; confidentiality of information. (a) Any information provided to EPA under parts 260 through 266 and 268 of this chapter will be made available to the public to the extent and in the manner authorized by the Freedom of Information Act, 5 U.S.C. section 552, section 3007(b) of RCRA and EPA regulations implementing the Freedom of Information Act and section 3007(b), and part 2 of this chapter, as applicable. (b) Except as provided under paragraphs (c) and (d) of this section, any person who submits information to EPA in accordance with parts 260 through 266 and 268 of this chapter may assert a claim of business confidentiality covering part or all of that information by following the procedures set forth in § 2.203(b) of this chapter. Information covered by such a claim will be disclosed by EPA only to the extent, and by means of the procedures, set forth in part 2, subpart B, of this chapter. (c)(1) After August 6, 2014, no claim of business confidentiality may be asserted by any person with respect to information entered on a Hazardous Waste Manifest (EPA Form 8700-22), a Hazardous Waste Manifest Continuation Sheet (EPA Form 8700-22A), or an electronic manifest format that may be prepared and used in accordance with § 262.20(a)(3) of this chapter. (2) EPA will make any electronic manifest that is prepared and used in accordance with § 262.20(a)(3), or any paper manifest that is submitted to the system under §§ 264.71(a)(6) or 265.71(a)(6) of this chapter available to the public under this section when the electronic or paper manifest is a complete and final document. Electronic manifests and paper manifests submitted to the system are considered by EPA to be complete and final documents and publicly available information after 90 days have passed since the delivery to the designated facility of the hazardous waste shipment identified in the manifest. (d)(1) After June 26, 2018, no claim of business confidentiality may be asserted by any person with respect to information contained in cathode ray tube export documents prepared, used and submitted under §§ 261.39(a)(5) and 261.41(a) of this chapter, and with respect to information contained in hazardous waste export, import, and transit documents prepared, used and submitted under §§ 262.82, 262.83, 262.84, 263.20, 264.12, 264.71, 265.12, 265.71, and 267.71 of this chapter, whether submitted electronically into EPA's Waste Import Export Tracking System or in paper format. After January 22, 2025, no claim of business confidentiality may be asserted by any person with respect to information contained in hazardous secondary material export documents prepared, used and submitted under § 261.4(a)(25) of this chapter, whether submitted electronically into the EPA's Waste Import Export Tracking System or in paper format. (2) EPA will make any cathode ray tube export documents prepared, used and submitted under §§ 261.39(a)(5) and 261.41(a) of this chapter, and any hazardous waste export, import, and transit documents prepared, used and submitted under §§ 262.82, 262.83, 262.84, 263.20, 264.12, 264.71, 265.12, 265.71, and 267.71 of this chapter available to the public under this section when these electronic or paper documents are considered by EPA to be final documents. These submitted electronic and paper documents related to hazardous waste exports, imports and transits and cathode ray tube exports are considered by EPA to be final documents on March 1 of the calendar year after the related cathode ray tube exports or hazardous waste exports, imports, or transits occur. After January 22, 2025, the EPA will make available to the public under this section any hazardous secondary material export documents prepared, used and submitted under § 261.4(a)(25) of this chapter on March 1 of the calendar year after the related hazardous secondary material exports occur, when these documents are considered by the EPA to be final documents. [79 FR 7557, Feb. 7, 2014, as amended at 82 FR 60900, Dec. 26, 2017; 89 FR 60724, July 26, 2024] § 260.3 Use of number and gender. As used in parts 260 through 273 of this chapter: (a) Words in the masculine gender also include the feminine and neuter genders; and (b) Words in the singular include the plural; and (c) Words in the plural include the singular. [45 FR 33073, May 19, 1980, as amended at 51 FR 40636, Nov. 7, 1986; 81 FR 85805, Nov. 28, 2016] § 260.4 Manifest copy submission requirements for certain interstate waste shipments. (a) In any case in which the state in which waste is generated, or the state in which waste will be transported to a designated facility, requires that the waste be regulated as a hazardous waste or otherwise be tracked through a hazardous waste manifest, the designated facility that receives the waste shall, regardless of the state in which the facility is located: (1) Complete the facility portion of the applicable manifest; (2) Sign and date the facility certification; (3) Submit to the e-Manifest system a final copy of the manifest for data processing purposes; and (4) Pay the appropriate per manifest fee to EPA for each manifest submitted to the e-Manifest system, subject to the fee determination methodology, payment methods, dispute procedures, sanctions, and other fee requirements specified in subpart FF of part 264 of this chapter. [83 FR 451, Jan. 3, 2018] § 260.5 Applicability of electronic manifest system and user fee requirements to facilities receiving state-only regulated waste shipments. (a) For purposes of this section, “state-only regulated waste” means: (1) A non-RCRA waste that a state regulates more broadly under its state regulatory program, or (2) A RCRA hazardous waste that is federally exempt from manifest requirements, but not exempt from manifest requirements under state law. (b) In any case in which a state requires a RCRA manifest to be used under state law to track the shipment and transportation of a state-only regulated waste to a receiving facility, the facility receiving such a waste shipment for management shall: (1) Comply with the provisions of §§ 264.71 (use of the manifest) and 264.72 (manifest discrepancies) of this chapter; and (2) Pay the appropriate per manifest fee to EPA for each manifest submitted to the e-Manifest system, subject to the fee determination methodology, payment methods, dispute procedures, sanctions, and other fee requirements specified in subpart FF of part 264 of this chapter. [83 FR 451, Jan. 3, 2018] Subpart B—Definitions § 260.10 Definitions. When used in parts 260 through 273 of this chapter, the following terms have the meanings given below: Above ground tank Act RCRA et seq. Active life Active portion Acute hazardous waste Administrator Aerosol can AES filing compliance date Federal Register, Airbag waste Airbag waste collection facility Airbag waste handler Ancillary equipment Aquifer Authorized representative Battery Boiler (1)(i) The unit must have physical provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases; and (ii) The unit's combustion chamber and primary energy recovery sections(s) must be of integral design. To be of integral design, the combustion chamber and the primary energy recovery section(s) (such as waterwalls and superheaters) must be physically formed into one manufactured or assembled unit. A unit in which the combustion chamber and the primary energy recovery section(s) are joined only by ducts or connections carrying flue gas is not integrally designed; however, secondary energy recovery equipment (such as economizers or air preheaters) need not be physically formed into the same unit as the combustion chamber and the primary energy recovery section. The following units are not precluded from being boilers solely because they are not of integral design: process heaters (units that transfer energy directly to a process stream), and fluidized bed combustion units; and (iii) While in operation, the unit must maintain a thermal energy recovery efficiency of at least 60 percent, calculated in terms of the recovered energy compared with the thermal value of the fuel; and (iv) The unit must export and utilize at least 75 percent of the recovered energy, calculated on an annual basis. In this calculation, no credit shall be given for recovered heat used internally in the same unit. (Examples of internal use are the preheating of fuel or combustion air, and the driving of induced or forced draft fans or feedwater pumps); or (2) The unit is one which the Regional Administrator has determined, on a case-by-case basis, to be a boiler, after considering the standards in § 260.32. Carbon dioxide stream Carbon regeneration unit Cathode ray tube or CRT Central accumulation area Certification Closed portion Component Confined aquifer Contained (1) The unit is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary materials to the environment, and is designed, as appropriate for the hazardous secondary materials, to prevent releases of hazardous secondary materials to the environment. Unpermitted releases are releases that are not covered by a permit (such as a permit to discharge to water or air) and may include, but are not limited to, releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures; (2) The unit is properly labeled or otherwise has a system (such as a log) to immediately identify the hazardous secondary materials in the unit; and (3) The unit holds hazardous secondary materials that are compatible with other hazardous secondary materials placed in the unit and is compatible with the materials used to construct the unit and addresses any potential risks of fires or explosions. (4) Hazardous secondary materials in units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively contained. Container Containment building Contingency plan Corrosion expert CRT collector CRT exporter CRT glass manufacturer CRT processing (1) Receiving broken or intact CRTs; and (2) Intentionally breaking intact CRTs or further breaking or separating broken CRTs; and (3) Sorting or otherwise managing glass removed from CRT monitors. Designated facility (1) A hazardous waste treatment, storage, or disposal facility which: (i) Has received a permit (or interim status) in accordance with the requirements of parts 270 and 124 of this chapter; (ii) Has received a permit (or interim status) from a State authorized in accordance with part 271 of this chapter; or (iii) Is regulated under § 261.6(c)(2) or subpart F of part 266 of this chapter; and (iv) That has been designated on the manifest by the generator pursuant to § 262.20. (2) Designated facility (3) If a waste is destined to a facility in an authorized State which has not yet obtained authorization to regulate that particular waste as hazardous, then the designated facility must be a facility allowed by the receiving State to accept such waste. Destination facility Dike Dioxins and furans (D/F) Discharge hazardous waste discharge Disposal Disposal facility Drip pad Electronic import-export reporting compliance date Federal Register, Electronic manifest Electronic Manifest System (or e-Manifest System) Elementary neutralization unit (1) Is used for neutralizing wastes that are hazardous only because they exhibit the corrosivity characteristic defined in § 261.22 of this chapter, or they are listed in subpart D of part 261 of the chapter only for this reason; and (2) Meets the definition of tank, tank system, container, transport vehicle, or vessel in § 260.10 of this chapter. EPA hazardous waste number EPA identification number EPA region Region I—Maine, Vermont, New Hampshire, Massachusetts, Connecticut, and Rhode Island. Region II—New York, New Jersey, Commonwealth of Puerto Rico, and the U.S. Virgin Islands. Region III—Pennsylvania, Delaware, Maryland, West Virginia, Virginia, and the District of Columbia. Region IV—Kentucky, Tennessee, North Carolina, Mississippi, Alabama, Georgia, South Carolina, and Florida. Region V—Minnesota, Wisconsin, Illinois, Michigan, Indiana and Ohio. Region VI—New Mexico, Oklahoma, Arkansas, Louisiana, and Texas. Region VII—Nebraska, Kansas, Missouri, and Iowa. Region VIII—Montana, Wyoming, North Dakota, South Dakota, Utah, and Colorado. Region IX—California, Nevada, Arizona, Hawaii, Guam, American Samoa, Commonwealth of the Northern Mariana Islands. Region X—Washington, Oregon, Idaho, and Alaska. Equivalent method Existing hazardous waste management (HWM) facility existing facility (1) The owner or operator has obtained the Federal, State and local approvals or permits necessary to begin physical construction; and either (2)(i) A continuous on-site, physical construction program has begun; or (ii) The owner or operator has entered into contractual obligations—which cannot be cancelled or modified without substantial loss—for physical construction of the facility to be completed within a reasonable time. Existing portion Existing tank system existing component Explosives or munitions emergency Explosives or munitions emergency response Explosives or munitions emergency response specialist Facility (1) All contiguous land, and structures, other appurtenances, and improvements on the land, used for treating, storing, or disposing of hazardous waste, or for managing hazardous secondary materials prior to reclamation. A facility may consist of several treatment, storage, or disposal operational units (e.g., one or more landfills, surface impoundments, or combinations of them). (2) For the purpose of implementing corrective action under 40 CFR 264.101 or 267.101, all contiguous property under the control of the owner or operator seeking a permit under Subtitle C of RCRA. This definition also applies to facilities implementing corrective action under RCRA Section 3008(h). (3) Notwithstanding paragraph (2) of this definition, a remediation waste management site is not a facility that is subject to 40 CFR 264.101, but is subject to corrective action requirements if the site is located within such a facility. Federal agency Federal, State and local approvals or permits necessary to begin physical construction Final closure Food-chain crops Free liquids Freeboard Generator Ground water Hazardous secondary material Hazardous secondary material generator Hazardous waste Hazardous waste constituent Hazardous waste management unit In operation Inactive portion Incinerator (1) Uses controlled flame combustion and neither meets the criteria for classification as a boiler, sludge dryer, or carbon regeneration unit, nor is listed as an industrial furnace; or (2) Meets the definition of infrared incinerator or plasma arc incinerator. Incompatible waste (1) Placement in a particular device or facility because it may cause corrosion or decay of containment materials (e.g., container inner liners or tank walls); or (2) Commingling with another waste or material under uncontrolled conditions because the commingling might produce heat or pressure, fire or explosion, violent reaction, toxic dusts, mists, fumes, or gases, or flammable fumes or gases. (See appendix V of parts 264 and 265 of this chapter for examples.) Individual generation site Industrial furnace (1) Cement kilns (2) Lime kilns (3) Aggregate kilns (4) Phosphate kilns (5) Coke ovens (6) Blast furnaces (7) Smelting, melting and refining furnaces (including pyrometallurgical devices such as cupolas, reverberator furnaces, sintering machine, roasters, and foundry furnaces) (8) Titanium dioxide chloride process oxidation reactors (9) Methane reforming furnaces (10) Pulping liquor recovery furnaces (11) Combustion devices used in the recovery of sulfur values from spent sulfuric acid (12) Halogen acid furnaces (HAFs) for the production of acid from halogenated hazardous waste generated by chemical production facilities where the furnace is located on the site of a chemical production facility, the acid product has a halogen acid content of at least 3%, the acid product is used in a manufacturing process, and, except for hazardous waste burned as fuel, hazardous waste fed to the furnace has a minimum halogen content of 20% as-generated. (13) Such other devices as the Administrator may, after notice and comment, add to this list on the basis of one or more of the following factors: (i) The design and use of the device primarily to accomplish recovery of material products; (ii) The use of the device to burn or reduce raw materials to make a material product; (iii) The use of the device to burn or reduce secondary materials as effective substitutes for raw materials, in processes using raw materials as principal feedstocks; (iv) The use of the device to burn or reduce secondary materials as ingredients in an industrial process to make a material product; (v) The use of the device in common industrial practice to produce a material product; and (vi) Other factors, as appropriate. Infrared incinerator Inground tank Injection well Inner liner Installation inspector Intermediate facility International shipment Lamp, Land-based unit Landfill Landfill cell Land treatment facility Large quantity generator (1) Greater than or equal to 1,000 kilograms (2200 lbs) of non-acute hazardous waste; or (2) Greater than 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter; or (3) Greater than 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter. Leachate Leak-detection system Liner Management hazardous waste management Manifest Manifest tracking number i.e. Mercury-containing equipment Military munitions Mining overburden returned to the mine site Miscellaneous unit Movement New hazardous waste management facility new facility New tank system new tank component No free liquids, Non-acute hazardous waste On ground tank On-site Open burning (1) Control of combustion air to maintain adequate temperature for efficient combustion, (2) Containment of the combustion-reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion, and (3) Control of emission of the gaseous combustion products. (See also “incineration” and “thermal treatment”.) Operator Owner Partial closure Person Personnel facility personnel Pesticide (1) Is a new animal drug under FFDCA section 201(w), or (2) Is an animal drug that has been determined by regulation of the Secretary of Health and Human Services not to be a new animal drug, or (3) Is an animal feed under FFDCA section 201(x) that bears or contains any substances described by paragraph (1) or (2) of this definition. Pile Plasma arc incinerator Point source Publicly owned treatment works POTW Qualified Ground-Water Scientist Recognized trader Regional Administrator Remanufacturing Remediation waste Remediation waste management site Replacement unit Representative sample Run-off Run-on Saturated zone zone of saturation Sludge Sludge dryer Small quantity generator (1) Greater than 100 kilograms (220 lbs) but less than 1,000 kilograms (2200 lbs) of non-acute hazardous waste; and (2) Less than or equal to 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter; and (3) Less than or equal to 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter. Solid waste Solvent-contaminated wipe (1) A wipe that, after use or after cleaning up a spill, either: (i) Contains one or more of the F001 through F005 solvents listed in 40 CFR 261.31 or the corresponding P- or U- listed solvents found in 40 CFR 261.33; (ii) Exhibits a hazardous characteristic found in 40 CFR part 261 subpart C when that characteristic results from a solvent listed in 40 CFR part 261; and/or (iii) Exhibits only the hazardous waste characteristic of ignitability found in 40 CFR 261.21 due to the presence of one or more solvents that are not listed in 40 CFR part 261. (2) Solvent-contaminated wipes that contain listed hazardous waste other than solvents, or exhibit the characteristic of toxicity, corrosivity, or reactivity due to contaminants other than solvents, are not eligible for the exclusions at 40 CFR 261.4(a)(26) and 40 CFR 261.4(b)(18). Sorbent Sorb Staging pile State Storage Sump Surface impoundment impoundment Tank Tank system TEQ Thermal treatment Thermostat Totally enclosed treatment facility Transfer facility Transport vehicle Transportation Transporter Treatability study Treatment Treatment zone Underground injection Underground tank Unfit-for use tank system United States Universal waste (1) Batteries as described in § 273.2 of this chapter; (2) Pesticides as described in § 273.3 of this chapter; (3) Mercury-containing equipment as described in § 273.4 of this chapter; (4) Lamps as described in § 273.5 of this chapter; and (5) Aerosol cans as described in § 273.6 of this chapter. Universal waste handler: (1) Means: (i) A generator (as defined in this section) of universal waste; or (ii) The owner or operator of a facility, including all contiguous property, that receives universal waste from other universal waste handlers, accumulates universal waste, and sends universal waste to another universal waste handler, to a destination facility, or to a foreign destination. (2) Does not mean: (i) A person who treats (except under the provisions of 40 CFR 273.13(a) or (c), or 40 CFR 273.33(a) or (c)), disposes of, or recycles (except under the provisions of 40 CFR 273.13(e) or 40 CFR 273.33(e)) universal waste; or (ii) A person engaged in the off-site transportation of universal waste by air, rail, highway, or water, including a universal waste transfer facility. Universal waste transporter Unsaturated zone zone of aeration Uppermost aquifer Used oil User of the electronic manifest system (1) Is required to use a manifest to comply with: (i) Any federal or state requirement to track the shipment, transportation, and receipt of hazardous waste or other waste material that is shipped from the site of generation to an off-site designated facility for treatment, storage, recycling, or disposal; or (ii) Any federal or state requirement to track the shipment, transportation, and receipt of rejected wastes or regulated container residues that are shipped from a designated facility to an alternative facility, or returned to the generator; and (2) Elects to use the system to obtain, complete and transmit an electronic manifest format supplied by the EPA electronic manifest system, or (3) Elects to use the paper manifest form and submits to the system for data processing purposes a paper copy of the manifest (or data from such a paper copy), in accordance with § 264.71(a)(2)(v) or § 265.71(a)(2)(v) of this chapter. These paper copies are submitted for data exchange purposes only and are not the official copies of record for legal purposes. Very small quantity generator (1) 100 kilograms (220 lbs) of non-acute hazardous waste; and (2) 1 kilogram (2.2 lbs) of acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter; and (3) 100 kilograms (220 lbs) of any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill, into or on any land or water, of any acute hazardous waste listed in § 261.31 or § 261.33(e) of this chapter. Vessel Wastewater treatment unit (1) Is part of a wastewater treatment facility that is subject to regulation under either section 402 or 307(b) of the Clean Water Act; and (2) Receives and treats or stores an influent wastewater that is a hazardous waste as defined in § 261.3 of this chapter, or that generates and accumulates a wastewater treatment sludge that is a hazardous waste as defined in § 261.3 of this chapter, or treats or stores a wastewater treatment sludge which is a hazardous waste as defined in § 261.3 of this Chapter; and (3) Meets the definition of tank or tank system in § 260.10 of this chapter. Water (bulk shipment) Well Well injection: Zone of engineering control Wipe [45 FR 33073, May 19, 1980] Editorial Note: For Federal Register www.govinfo.gov. § 260.11 Incorporation by reference. When used in parts 260 through 268 of this chapter, the following materials are incorporated by reference with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved materials are available for inspection at the OLEM Docket in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading room is (202) 566-1744, and the telephone number for the OLEM Docket is (202) 566-0270. These approved materials are also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email [email protected] www.archives.gov/federal-register/cfr/ibr-locations.html. (a) American Petroleum Institute (API). www.api.org. (1) API Publication 2517, Third Edition, February 1989, “Evaporative Loss from External Floating-Roof Tanks,” IBR approved for § 265.1084. (2) [Reserved] (b) ASTM International (ASTM). www.astm.org. (1) ASTM D93-79, “Standard Test Methods for Flash Point by Pensky-Martens Closed Cup Tester,” IBR approved for § 261.21(a). (2) ASTM D93-80, “Standard Test Methods for Flash Point by Pensky-Martens Closed Cup Tester,” IBR approved for § 261.21(a). (3) ASTM D1946-82, “Standard Method for Analysis of Reformed Gas by Gas Chromatography,” IBR approved for §§ 264.1033 and 265.1033. (4) ASTM D2267-88, “Standard Test Method for Aromatics in Light Naphthas and Aviation Gasolines by Gas Chromatography,” IBR approved for § 264.1063. (5) ASTM D2382-83, “Standard Test Method for Heat of Combustion of Hydrocarbon Fuels by Bomb Calorimeter (High-Precision Method),” IBR approved for §§ 264.1033 and 265.1033. (6) ASTM D2879-92, “Standard Test Method for Vapor Pressure—Temperature Relationship and Initial Decomposition Temperature of Liquids by Isoteniscope,” IBR approved for § 265.1084. (7) ASTM D3278-78, “Standard Test Methods for Flash Point for Liquids by Setaflash Closed Tester,” IBR approved for § 261.21(a). (8) ASTM D8174-18 “Standard Test Method for Finite Flash Point Determination of Liquid Wastes by Small Scale Closed Cup Tester.” Approved March 15, 2018, IBR approved for § 261.21(a). (9) ASTM D8175-18 “Standard Test Method for Finite Flash Point Determination of Liquid Wastes by Pensky-Martens Closed Cup Tester.” Approved March 15, 2018, IBR approved for § 261.21(a). (10) ASTM E168-88, “Standard Practices for General Techniques of Infrared Quantitative Analysis,” IBR approved for § 264.1063. (11) ASTM E169-87, “Standard Practices for General Techniques of Ultraviolet-Visible Quantitative Analysis,” IBR approved for § 264.1063. (12) ASTM E260-85, “Standard Practice for Packed Column Gas Chromatography,” IBR approved for § 264.1063. (13) ASTM E681-85 “Standard Test Method for Concentration Limits of Flammability of Chemicals (Vapors and gases),” Approved November 14, 1985, IBR approved for § 261.21(a). (c) Environmental Protection Agency (EPA). https://www.epa.gov/nscep. https://www.epa.gov/hw-sw846. (1) “APTI Course 415: Control of Gaseous Emissions,” EPA Publication EPA-450/2-81-005, December 1981, IBR approved for §§ 264.1035 and 265.1035. (2) Method 1664, n-Hexane Extractable Material (HEM; Oil and Grease) and Silica Gel Treated n-Hexane Extractable Material SGT-HEM; Non-polar Material) by Extraction and Gravimetry: (i) Revision A, EPA-821-R-98-002, February 1999, IBR approved for appendix IX to part 261. (ii) Revision B, EPA-821-R-10-001, February 2010, IBR approved for appendix IX to part 261. (3) “Screening Procedures for Estimating the Air Quality Impact of Stationary Sources, Revised”, October 1992, EPA Publication No. EPA-450/R-92-019, IBR approved for appendix IX to part 266. (4) The following methods as published in the test methods compendium known as “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846, Third Edition. (i) Method 0010, Modified Method 5 Sampling Train, Revision 1, dated August 2018, IBR approved for appendix IX to part 261. (ii) Method 0011, Sampling for Selected Aldehyde and Ketone Emissions from Stationary Sources, Revision 1, dated August 2018, IBR approved for appendix IX to part 261 and appendix IX to part 266 (iii) Method 0020, Source Assessment Sampling System (SASS), Revision 1, dated August 2018, IBR approved for appendix IX to part 261. (iv) Method 0023A, Sampling Method for Polychlorinated Dibenzo-p-Dioxins and Polychlorinated Dibenzofuran Emissions from Stationary Sources, Revision 2, dated August 2018, IBR approved for appendix IX to part 261, § 266.104(e), and appendix IX to part 266. (v) Method 0030, Volatile Organic Sampling Train, dated September 1986 and in the Basic Manual, IBR approved for appendix IX to part 261. (vi) Method 0031, Sampling Method for Volatile Organic Compounds (SMVOC), dated December 1996 and in Update III, IBR approved for appendix IX to part 261. (vii) Method 0040, Sampling of Principal Organic Hazardous Constituents from Combustion Sources Using Tedlar® Bags, dated December 1996 and in Update III, IBR approved for appendix IX to part 261. (viii) Method 0050, Isokinetic HCl/Cl 2 (ix) Method 0051, Midget Impinger HCl/Cl2 Emission Sampling Train, Revision 1, dated August 2018, IBR approved for appendix IX to part 261, § 266.107, and appendix IX to part 266. (x) Method 0060, Determination of Metals in Stack Emissions, dated December 1996 and in Update III, IBR approved for appendix IX to part 261, § 266.106, and appendix IX to part 266. (xi) Method 0061, Determination of Hexavalent Chromium Emissions from Stationary Sources, dated December 1996 and in Update III, IBR approved for appendix IX to part 261 § 266.106, and appendix IX to part 266. (xii) Method 1010B, Test Methods for Flash Point by Pensky-Martens Closed-Cup Tester, dated December 2018, IBR approved for § 261.21 and appendix IX to part 261. (xiii) Method 1020C, Standard Test Methods for Flash Point by Setaflash (Small Scale) Closed-Cup Apparatus, dated December 2018, IBR approved for § 261.21 and appendix IX to part 261. (xiv) Method 1110A, Corrosivity Toward Steel, dated November 2004 and in Update IIIB, IBR approved for § 261.22 and appendix IX to part 261. (xv) Method 1310B, Extraction Procedure (EP) Toxicity Test Method and Structural Integrity Test, dated November 2004 and in Update IIIB, IBR approved for appendix IX to part 261. (xvi) Method 1311, Toxicity Characteristic Leaching Procedure, dated July 1992 and in Update I, IBR approved for appendix IX to part 261, and §§ 261.24, 268.7, 268.40. (xvii) Method 1312, Synthetic Precipitation Leaching Procedure, dated September 1994 and in Update III, IBR approved for appendix IX to part 261. (xviii) Method 1320, Multiple Extraction Procedure, dated September 1986 and in the Basic Manual, IBR approved for appendix IX to part 261. (xix) Method 1330A, Extraction Procedure for Oily Wastes, dated July 1992 and in Update I, IBR approved for appendix IX to part 261. (xx) Method 9010C, Total and Amenable Cyanide: Distillation, dated November 2004 and in Update IIIB, IBR approved for appendix IX to part 261 and §§ 268.40, 268.44, 268.48. (xxi) Method 9012B, Total and Amenable Cyanide (Automated Colorimetric, with Off-Line Distillation), dated November 2004 and in Update IIIB, IBR approved for appendix IX to part 261 and §§ 268.40, 268.44, 268.48. (xxii) Method 9040C, pH Electrometric Measurement, dated November 2004 and in Update IIIB, IBR approved for appendix IX to part 261 and § 261.22. (xxiii) Method 9045D, Soil and Waste pH, dated November 2004 and in Update IIIB, IBR approved for appendix IX to part 261. (xxiv) Method 9060A, Total Organic Carbon, dated November 2004 and in Update IIIB, IBR approved for appendix IX to part 261, and §§ 264.1034, 264.1063, 265.1034, 265.1063. (xxv) Method 9070A, n-Hexane Extractable material (HEM) for Aqueous Samples, dated November 2004 and in Update IIIB, IBR approved for appendix IX to part 261. (xxvi) Method 9071B, n-Hexane Extractable Material (HEM) for Sludge, Sediment, and Solid Samples, dated April 1998 and in Update IIIA, IBR approved for appendix IX to part 261. (xxvii) Method 9095B, Paint Filter Liquids Test, dated November 2004 and in Update IIIB, IBR approved, appendix IX to part 261, and §§ 264.190, 264.314, 265.190, 265.314, 265.1081, 267.190(a), 268.32. (d) National Fire Protection Association (NFPA). www.nfpa.org/. (1) NFPA 30, “Flammable and Combustible Liquids Code,” 1977 Edition, IBR approved for §§ 262.16(b), 264.198(b), 265.198(b), and 267.202(b). (2) NFPA 30, “Flammable and Combustible Liquids Code,” 1981 Edition, IBR approved for §§ 262.16(b), 264.198(b), 265.198(b), and 267.202(b). (e) Organization for Economic Cooperation and Development (OECD). www.oecd-ilibrary.org/. (1) Guidance Manual for the Control of Transboundary Movements of Recoverable Wastes, copyright 2009, Annex B: OECD Consolidated List of Wastes Subject to the Green Control Procedure and Annex C: OECD Consolidated List of Wastes Subject to the Amber Control Procedure, IBR approved for §§ 262.82(a), 262.83(b), (d), and (g), and 262.84(b) and (d). (2) [Reserved] [85 FR 40606, July 7, 2020] Subpart C—Rulemaking Petitions § 260.20 General. (a) Any person may petition the Administrator to modify or revoke any provision in parts 260 through 266, 268 and 273 of this chapter. This section sets forth general requirements which apply to all such petitions. Section 260.21 sets forth additional requirements for petitions to add a testing or analytical method to part 261, 264 or 265 of this chapter. Section 260.22 sets forth additional requirements for petitions to exclude a waste or waste-derived material at a particular facility from § 261.3 of this chapter or the lists of hazardous wastes in subpart D of part 261 of this chapter. Section 260.23 sets forth additional requirements for petitions to amend part 273 of this chapter to include additional hazardous wastes or categories of hazardous waste as universal waste. (b) Each petition must be submitted to the Administrator by certified mail and must include: (1) The petitioner's name and address; (2) A statement of the petitioner's interest in the proposed action; (3) A description of the proposed action, including (where appropriate) suggested regulatory language; and (4) A statement of the need and justification for the proposed action, including any supporting tests, studies, or other information. (c) The Administrator will make a tentative decision to grant or deny a petition and will publish notice of such tentative decision, either in the form of an advanced notice of proposed rulemaking, a proposed rule, or a tentative determination to deny the petition, in the Federal Register (d) Upon the written request of any interested person, the Administrator may, at his discretion, hold an informal public hearing to consider oral comments on the tentative decision. A person requesting a hearing must state the issues to be raised and explain why written comments would not suffice to communicate the person's views. The Administrator may in any case decide on his own motion to hold an informal public hearing. (e) After evaluating all public comments the Administrator will make a final decision by publishing in the Federal Register [45 FR 33073, May 19, 1980, as amended at 51 FR 40636, Nov. 7, 1986; 57 FR 38564, Aug. 25, 1992; 60 FR 25540, May 11, 1995] § 260.21 Petitions for equivalent testing or analytical methods. (a) Any person seeking to add a testing or analytical method to part 261, 264, or 265 of this chapter may petition for a regulatory amendment under this section and § 260.20. To be successful, the person must demonstrate to the satisfaction of the Administrator that the proposed method is equal to or superior to the corresponding method prescribed in part 261, 264, or 265 of this chapter, in terms of its sensitivity, accuracy, and precision (i.e., reproducibility). (b) Each petition must include, in addition to the information required by § 260.20(b): (1) A full description of the proposed method, including all procedural steps and equipment used in the method; (2) A description of the types of wastes or waste matrices for which the proposed method may be used; (3) Comparative results obtained from using the proposed method with those obtained from using the relevant or corresponding methods prescribed in part 261, 264, or 265 of this chapter; (4) An assessment of any factors which may interfere with, or limit the use of, the proposed method; and (5) A description of the quality control procedures necessary to ensure the sensitivity, accuracy and precision of the proposed method. (c) After receiving a petition for an equivalent method, the Administrator may request any additional information on the proposed method which he may reasonably require to evaluate the method. (d) If the Administrator amends the regulations to permit use of a new testing method, the method will be incorporated by reference in § 260.11 and added to “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” EPA Publication SW-846, U.S. Environmental Protection Agency, Office of Resource Conservation and Recovery, Washington, DC 20460. [45 FR 33073, May 19, 1980, as amended at 49 FR 47391, Dec. 4, 1984; 70 FR 34561, June 14, 2005; 74 FR 30230, June 25, 2009] § 260.22 Petitions to amend part 261 to exclude a waste produced at a particular facility. (a) Any person seeking to exclude a waste at a particular generating facility from the lists in subpart D of part 261 may petition for a regulatory amendment under this section and § 260.20. To be successful: (1) The petitioner must demonstrate to the satisfaction of the Administrator that the waste produced by a particular generating facility does not meet any of the criteria under which the waste was listed as a hazardous or an acutely hazardous waste; and (2) Based on a complete application, the Administrator must determine, where he has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded, however, still may be a hazardous waste by operation of subpart C of part 261. (b) The procedures in this Section and § 260.20 may also be used to petition the Administrator for a regulatory amendment to exclude from § 261.3(a)(2)(ii) or (c), a waste which is described in these Sections and is either a waste listed in subpart D, or is derived from a waste listed in subpart D. This exclusion may only be issued for a particular generating, storage, treatment, or disposal facility. The petitioner must make the same demonstration as required by paragraph (a) of this section. Where the waste is a mixture of solid waste and one or more listed hazardous wastes or is derived from one or more hazardous wastes, his demonstration must be made with respect to the waste mixture as a whole; analyses must be conducted for not only those constituents for which the listed waste contained in the mixture was listed as hazardous, but also for factors (including additional constituents) that could cause the waste mixture to be a hazardous waste. A waste which is so excluded may still be a hazardous waste by operation of subpart C of part 261. (c) If the waste is listed with codes “I”, “C”, “R”, or “E”, in subpart D, (1) The petitioner must show that the waste does not exhibit the relevant characteristic for which the waste was listed as defined in § 261.21, § 261.22, § 261.23, or § 261.24 using any applicable methods prescribed therein. The petitioner also must show that the waste does not exhibit any of the other characteristics defined in § 261.21, § 261.22, § 261.23, or § 261.24 using any applicable methods prescribed therein; (2) Based on a complete application, the Administrator must determine, where he has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded, however, still may be a hazardous waste by operation of subpart C of part 261. (d) If the waste is listed with code “T” in subpart D, (1) The petitioner must demonstrate that the waste: (i) Does not contain the constituent or constituents (as defined in appendix VII of part 261 of this chapter) that caused the Administrator to list the waste; or (ii) Although containing one or more of the hazardous constituents (as defined in appendix VII of part 261) that caused the Administrator to list the waste, does not meet the criterion of § 261.11(a)(3) when considering the factors used by the Administrator in § 261.11(a)(3) (i) through (xi) under which the waste was listed as hazardous; and (2) Based on a complete application, the Administrator must determine, where he has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste; and (3) The petitioner must demonstrate that the waste does not exhibit any of the characteristics defined in § 261.21, § 261.22, § 261.23, and § 261.24 using any applicable methods prescribed therein; (4) A waste which is so excluded, however, still may be a hazardous waste by operation of subpart C of part 261. (e) If the waste is listed with the code “H” in subpart D, (1) The petitioner must demonstrate that the waste does not meet the criterion of § 261.11(a)(2); and (2) Based on a complete application, the Administrator must determine, where he has a reasonable basis to believe that additional factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste; and (3) The petitioner must demonstrate that the waste does not exhibit any of the characteristics defined in § 261.21, § 261.22, § 261.23, and § 261.24 using any applicable methods prescribed therein; (4) A waste which is so excluded, however, still may be a hazardous waste by operation of subpart C of part 261. (f) [Reserved for listing radioactive wastes.] (g) [Reserved for listing infectious wastes.] (h) Demonstration samples must consist of enough representative samples, but in no case less than four samples, taken over a period of time sufficient to represent the variability or the uniformity of the waste. (i) Each petition must include, in addition to the information required by § 260.20(b): (1) The name and address of the laboratory facility performing the sampling or tests of the waste; (2) The names and qualifications of the persons sampling and testing the waste; (3) The dates of sampling and testing; (4) The location of the generating facility; (5) A description of the manufacturing processes or other operations and feed materials producing the waste and an assessment of whether such processes, operations, or feed materials can or might produce a waste that is not covered by the demonstration; (6) A description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the demonstration; (7) Pertinent data on and discussion of the factors delineated in the respective criterion for listing a hazardous waste, where the demonstration is based on the factors in § 261.11(a)(3); (8) A description of the methodologies and equipment used to obtain the representative samples; (9) A description of the sample handling and preparation techniques, including techniques used for extraction, containerization and preservation of the samples; (10) A description of the tests performed (including results); (11) The names and model numbers of the instruments used in performing the tests; and (12) The following statement signed by the generator of the waste or his authorized representative: I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment. (j) After receiving a petition for an exclusion, the Administrator may request any additional information which he may reasonably require to evaluate the petition. (k) An exclusion will only apply to the waste generated at the individual facility covered by the demonstration and will not apply to waste from any other facility. (l) The Administrator may exclude only part of the waste for which the demonstration is submitted where he has reason to believe that variability of the waste justifies a partial exclusion. [45 FR 33073, May 19, 1980, as amended at 50 FR 28742, July 15, 1985; 54 FR 27116, June 27, 1989; 58 FR 46049, Aug. 31, 1994; 70 FR 34561, June 14, 2005; 71 FR 40258, July 14, 2006] § 260.23 Petitions to amend 40 CFR part 273 to include additional hazardous wastes. (a) Any person seeking to add a hazardous waste or a category of hazardous waste to the universal waste regulations of part 273 of this chapter may petition for a regulatory amendment under this section, 40 CFR 260.20, and subpart G of 40 CFR part 273. (b) To be successful, the petitioner must demonstrate to the satisfaction of the Administrator that regulation under the universal waste regulations of 40 CFR part 273: Is appropriate for the waste or category of waste; will improve management practices for the waste or category of waste; and will improve implementation of the hazardous waste program. The petition must include the information required by 40 CFR 260.20(b). The petition should also address as many of the factors listed in 40 CFR 273.81 as are appropriate for the waste or category of waste addressed in the petition. (c) The Administrator will grant or deny a petition using the factors listed in 40 CFR 273.81. The decision will be based on the weight of evidence showing that regulation under 40 CFR part 273 is appropriate for the waste or category of waste, will improve management practices for the waste or category of waste, and will improve implementation of the hazardous waste program. (d) The Administrator may request additional information needed to evaluate the merits of the petition. [60 FR 25540, May 11, 1995] § 260.30 Non-waste determinations and variances from classification as a solid waste. In accordance with the standards and criteria in § 260.31 and § 260.34 and the procedures in § 260.33, the Administrator may determine on a case-by-case basis that the following recycled materials are not solid wastes: (a) Materials that are accumulated speculatively without sufficient amounts being recycled (as defined in § 261.1(c)(8) of this chapter); (b) Materials that are reclaimed and then reused within the original production process in which they were generated; (c) Materials that have been reclaimed but must be reclaimed further before the materials are completely recovered. (d) Hazardous secondary materials that are reclaimed in a continuous industrial process; and (e) Hazardous secondary materials that are indistinguishable in all relevant aspects from a product or intermediate. [50 FR 661, Jan. 4, 1985; 50 FR 14219, Apr. 11, 1985, as amended at 59 FR 48041, Sept. 19, 1994; 73 FR 64758, Oct. 30, 2008; 80 FR 1771, Jan. 13, 2015; 83 FR 24667, May 30, 2018] § 260.31 Standards and criteria for variances from classification as a solid waste. (a) The Administrator may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year. If a variance is granted, it is valid only for the following year, but can be renewed, on an annual basis, by filing a new application. The Administrator's decision will be based on the following criteria: (1) The manner in which the material is expected to be recycled, when the material is expected to be recycled, and whether this expected disposition is likely to occur (for example, because of past practice, market factors, the nature of the material, or contractual arrangements for recycling); (2) The reason that the applicant has accumulated the material for one or more years without recycling 75 percent of the volume accumulated at the beginning of the year; (3) The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled; (4) The extent to which the material is handled to minimize loss; (5) Other relevant factors. (b) The Administrator may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria: (1) How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials; (2) The extent to which the material is handled before reclamation to minimize loss; (3) The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process; (4) The location of the reclamation operation in relation to the production process; (5) Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form; (6) Whether the person who generates the material also reclaims it; (7) Other relevant factors. (c) The Administrator may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed, but must be reclaimed further before recovery is completed, if the partial reclamation has produced a commodity-like material. A determination that a partially-reclaimed material for which the variance is sought is commodity-like will be based on whether the hazardous secondary material is legitimately recycled as specified in § 260.43 of this part and on whether all of the following decision criteria are satisfied: (1) Whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste; (2) Whether the partially-reclaimed material has sufficient economic value that it will be purchased for further reclamation; (3) Whether the partially-reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials which is used in subsequent production steps; (4) Whether there is a market for the partially-reclaimed material as demonstrated by known customer(s) who are further reclaiming the material ( e.g., (5) Whether the partially-reclaimed material is handled to minimize loss. [50 FR 662, Jan. 4, 1985, as amended at 59 FR 48041, Sept. 19, 1994; 71 FR 16902, Apr. 4, 2006; 80 FR 1771, Jan. 13, 2015; 83 FR 24667, May 30, 2018] § 260.32 Variances to be classified as a boiler. In accordance with the standards and criteria in § 260.10 (definition of “boiler”), and the procedures in § 260.33, the Administrator may determine on a case-by-case basis that certain enclosed devices using controlled flame combustion are boilers, even though they do not otherwise meet the definition of boiler contained in § 260.10, after considering the following criteria: (a) The extent to which the unit has provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases; and (b) The extent to which the combustion chamber and energy recovery equipment are of integral design; and (c) The efficiency of energy recovery, calculated in terms of the recovered energy compared with the thermal value of the fuel; and (d) The extent to which exported energy is utilized; and (e) The extent to which the device is in common and customary use as a “boiler” functioning primarily to produce steam, heated fluids, or heated gases; and (f) Other factors, as appropriate. [50 FR 662, Jan. 4, 1985, as amended at 59 FR 48041, Sept. 19, 1994] § 260.33 Procedures for variances from classification as a solid waste, for variances to be classified as a boiler, or for non-waste determinations. The Administrator will use the following procedures in evaluating applications for variances from classification as a solid waste, applications to classify particular enclosed controlled flame combustion devices as boilers, or applications for non-waste determinations. (a) The applicant must apply to the Administrator for the variance or non-waste determination. The application must address the relevant criteria contained in § 260.31, § 260.32, or § 260.34, as applicable. (b) The Administrator will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement or radio broadcast in the locality where the recycler is located. The Administrator will accept comment on the tentative decision for 30 days, and may also hold a public hearing upon request or at his discretion. The Administrator will issue a final decision after receipt of comments and after the hearing (if any). (c) In the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria contained in § 260.31, § 260.32, or § 260.34 upon which a variance or non-waste determination has been based, the applicant must send a description of the change in circumstances to the Administrator. The Administrator may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or non-waste determination or may require the facility to re-apply for the variance or non-waste determination. (d) Variances and non-waste determinations shall be effective for a fixed term not to exceed ten years. No later than six months prior to the end of this term, facilities must re-apply for a variance or non-waste determination. If a facility re-applies for a variance or non-waste determination within six months, the facility may continue to operate under an expired variance or non-waste determination until receiving a decision on their re-application from the Administrator. (e) Facilities receiving a variance or non-waste determination must provide notification as required by § 260.42 of this chapter. [59 FR 48041, Sept. 19, 1994, as amended at 73 FR 64758, Oct. 30, 2008; 80 FR 1772, Jan. 13, 2015] § 260.34 Standards and criteria for non-waste determinations. (a) An applicant may apply to the Administrator for a formal determination that a hazardous secondary material is not discarded and therefore not a solid waste. The determinations will be based on the criteria contained in paragraphs (b) or (c) of this section, as applicable. If an application is denied, the hazardous secondary material might still be eligible for a solid waste variance or exclusion (for example, one of the solid waste variances under § 260.31). Determinations may also be granted by the State if the State is either authorized for this provision or if the following conditions are met: (1) The State determines the hazardous secondary material meets the criteria in paragraphs (b) or (c) of this section, as applicable; (2) The State requests that EPA review its determination; and (3) EPA approves the State determination. (b) The Administrator may grant a non-waste determination for hazardous secondary material which is reclaimed in a continuous industrial process if the applicant demonstrates that the hazardous secondary material is a part of the production process and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in § 260.43 and on the following criteria: (1) The extent that the management of the hazardous secondary material is part of the continuous primary production process and is not waste treatment; (2) Whether the capacity of the production process would use the hazardous secondary material in a reasonable time frame and ensure that the hazardous secondary material will not be abandoned (for example, based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements); (3) Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process; and (4) Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under § 261.2 or § 261.4 of this chapter. (c) The Administrator may grant a non-waste determination for hazardous secondary material which is indistinguishable in all relevant aspects from a product or intermediate if the applicant demonstrates that the hazardous secondary material is comparable to a product or intermediate and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in § 260.43 and on the following criteria: (1) Whether market participants treat the hazardous secondary material as a product or intermediate rather than a waste (for example, based on the current positive value of the hazardous secondary material, stability of demand, or any contractual arrangements); (2) Whether the chemical and physical identity of the hazardous secondary material is comparable to commercial products or intermediates; (3) Whether the capacity of the market would use the hazardous secondary material in a reasonable time frame and ensure that the hazardous secondary material will not be abandoned (for example, based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements); (4) Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process; and (5) Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under § 261.2 or § 261.4 of this chapter. [73 FR 64758, Oct. 30, 2008, as amended at 80 FR 1772, Jan. 13, 2015] § 260.40 Additional regulation of certain hazardous waste recycling activities on a case-by-case basis. (a) The Regional Administrator may decide on a case-by-case basis that persons accumulating or storing the recyclable materials described in § 261.6(a)(2)(iii) of this chapter should be regulated under § 261.6 (b) and (c) of this chapter. The basis for this decision is that the materials are being accumulated or stored in a manner that does not protect human health and the environment because the materials or their toxic constituents have not been adequately contained, or because the materials being accumulated or stored together are incompatible. In making this decision, the Regional Administrator will consider the following factors: (1) The types of materials accumulated or stored and the amounts accumulated or stored; (2) The method of accumulation or storage; (3) The length of time the materials have been accumulated or stored before being reclaimed; (4) Whether any contaminants are being released into the environment, or are likely to be so released; and (5) Other relevant factors. (b) [Reserved] The procedures for this decision are set forth in § 260.41 of this chapter. [50 FR 662, Jan. 4, 1985, as amended at 71 FR 40258, July 14, 2006] § 260.41 Procedures for case-by-case regulation of hazardous waste recycling activities. The Regional Administrator will use the following procedures when determining whether to regulate hazardous waste recycling activities described in § 261.6(a)(2)(iii) under the provisions of § 261.6 (b) and (c), rather than under the provisions of subpart F of part 266 of this chapter. (a) If a generator is accumulating the waste, the Regional Administrator will issue a notice setting forth the factual basis for the decision and stating that the person must comply with the applicable requirements of subparts A, C, D, and E of part 262 of this chapter. The notice will become final within 30 days, unless the person served requests a public hearing to challenge the decision. Upon receiving such a request, the Regional Administrator will hold a public hearing. The Regional Administrator will provide notice of the hearing to the public and allow public participation at the hearing. The Regional Administrator will issue a final order after the hearing stating whether or not compliance with part 262 is required. The order becomes effective 30 days after service of the decision unless the Regional Administrator specifies a later date or unless review by the Administrator is requested. The order may be appealed to the Administrator by any person who participated in the public hearing. The Administrator may choose to grant or to deny the appeal. Final Agency action occurs when a final order is issued and Agency review procedures are exhausted. (b) If the person is accumulating the recyclable material as a storage facility, the notice will state that the person must obtain a permit in accordance with all applicable provisions of parts 270 and 124 of this chapter. The owner or operator of the facility must apply for a permit within no less than 60 days and no more than six months of notice, as specified in the notice. If the owner or operator of the facility wishes to challenge the Regional Administrator's decision, he may do so in his permit application, in a public hearing held on the draft permit, or in comments filed on the draft permit or on the notice of intent to deny the permit. The fact sheet accompanying the permit will specify the reasons for the Agency's determination. The question of whether the Regional Administrator's decision was proper will remain open for consideration during the public comment period discussed under § 124.11 of this chapter and in any subsequent hearing. [50 FR 663, Jan. 4, 1985, as amended at 71 FR 40258, July 14, 2006] § 260.42 Notification requirement for hazardous secondary materials. (a) Facilities managing hazardous secondary materials under §§ 260.30, 261.4(a)(23), 261.4(a)(24), 261.4(a)(25), or 261.4(a)(27) must send a notification prior to operating under the regulatory provision and by March 1 of each even-numbered year thereafter to the Regional Administrator using EPA Form 8700-12 that includes the following information: (1) The name, address, and EPA ID number (if applicable) of the facility; (2) The name and telephone number of a contact person; (3) The NAICS code of the facility; (4) The regulation under which the hazardous secondary materials will be managed; (5) For reclaimers and intermediate facilities managing hazardous secondary materials in accordance with § 261.4(a)(24) or (25), whether the reclaimer or intermediate facility has financial assurance (not applicable for persons managing hazardous secondary materials generated and reclaimed under the control of the generator); (6) When the facility began or expects to begin managing the hazardous secondary materials in accordance with the regulation; (7) A list of hazardous secondary materials that will be managed according to the regulation (reported as the EPA hazardous waste numbers that would apply if the hazardous secondary materials were managed as hazardous wastes); (8) For each hazardous secondary material, whether the hazardous secondary material, or any portion thereof, will be managed in a land-based unit; (9) The quantity of each hazardous secondary material to be managed annually; and (10) The certification (included in EPA Form 8700-12) signed and dated by an authorized representative of the facility. (b) If a facility managing hazardous secondary materials has submitted a notification, but then subsequently stops managing hazardous secondary materials in accordance with the regulation(s) listed above, the facility must notify the Regional Administrator within thirty (30) days using EPA Form 8700-12. For purposes of this section, a facility has stopped managing hazardous secondary materials if the facility no longer generates, manages and/or reclaims hazardous secondary materials under the regulation(s) above and does not expect to manage any amount of hazardous secondary materials for at least 1 year. [73 FR 64759, Oct. 30, 2008, as amended at 80 FR 1772, Jan. 13, 2015; 83 FR 24667, May 30, 2018] § 260.43 Legitimate recycling of hazardous secondary materials. (a) Recycling of hazardous secondary materials for the purpose of the exclusions or exemptions from the hazardous waste regulations must be legitimate. Hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste. In determining if their recycling is legitimate, persons must address all the requirements of this paragraph and must consider the requirements of paragraph (b) of this section. (1) Legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process. The hazardous secondary material provides a useful contribution if it: (i) Contributes valuable ingredients to a product or intermediate; or (ii) Replaces a catalyst or carrier in the recycling process; or (iii) Is the source of a valuable constituent recovered in the recycling process; or (iv) Is recovered or regenerated by the recycling process; or (v) Is used as an effective substitute for a commercial product. (2) The recycling process must produce a valuable product or intermediate. The product or intermediate is valuable if it is: (i) Sold to a third party; or (ii) Used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process. (3) The generator and the recycler must manage the hazardous secondary material as a valuable commodity when it is under their control. Where there is an analogous raw material, the hazardous secondary material must be managed, at a minimum, in a manner consistent with the management of the raw material or in an equally protective manner. Where there is no analogous raw material, the hazardous secondary material must be contained. Hazardous secondary materials that are released to the environment and are not recovered immediately are discarded. (b) The following factor must be considered in making a determination as to the overall legitimacy of a specific recycling activity. (1) The product of the recycling process does not: (i) Contain significant concentrations of any hazardous constituents found in appendix VIII of part 261 that are not found in analogous products; or (ii) Contain concentrations of hazardous constituents found in appendix VIII of part 261 at levels that are significantly elevated from those found in analogous products, or (iii) Exhibit a hazardous characteristic (as defined in part 261 subpart C) that analogous products do not exhibit. (2) In making a determination that a hazardous secondary material is legitimately recycled, persons must evaluate all factors and consider legitimacy as a whole. If, after careful evaluation of these considerations, the factor in this paragraph is not met, then this fact may be an indication that the material is not legitimately recycled. However, the factor in this paragraph does not have to be met for the recycling to be considered legitimate. In evaluating the extent to which this factor is met and in determining whether a process that does not meet this factor is still legitimate, persons can consider exposure from toxics in the product, the bioavailability of the toxics in the product and other relevant considerations. (c) [Reserved] [73 FR 64759, Oct. 30, 2008, as amended at 80 FR 1772, Jan. 13, 2015; 83 FR 24667, May 30, 2018]