Section 11-261-4 - Exclusions(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this chapter: (1)(ii) Any mixture of domestic sewage and other wastes that passes through a sewer system to a publicly-owned treatment works for treatment. "Domestic sewage" means untreated sanitary wastes that pass through a sewer system.(2) Industrial wastewater discharges that are point source discharges subject to regulation under section 402 of the Federal Clean Water Act, as amended. This exclusion applies only to the actual point source discharge. It does not exclude industrial wastewaters while they are being collected, stored or treated before discharge, nor does it exclude sludges that are generated by industrial wastewater treatment.(3) Irrigation return flows.(4) Source, special nuclear or by-product material as defined by the Federal Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq.(5) Materials subjected to in-situ mining techniques which are not removed from the ground as part of the extraction process.(6) Pulping liquors (i.e., black liquor) that are reclaimed in a pulping liquor recovery furnace and then reused in the pulping process, unless it is accumulated speculatively as defined in subsection 11-261-1(c).(7) Spent sulfuric acid used to produce virgin sulfuric acid, unless it is accumulated speculatively as defined in subsection 11-261-1(c).(8) Secondary materials that are reclaimed and returned to the original process or processes in which they were generated where they are reused in the production process provided: (i) Only tank storage is involved, and the entire process through completion of reclamation is closed by being entirely connected with pipes or other comparable enclosed means of conveyance;(ii) Reclamation does not involve controlled flame combustion (such as occurs in boilers, industrial furnaces, or incinerators);(iii) The secondary materials are never accumulated in such tanks for over twelve months without being reclaimed; and(iv) The reclaimed material is not used to produce a fuel, or used to produce products that are used in a manner constituting disposal.(9)(i) Spent wood preserving solutions that have been reclaimed and are reused for their original intended purpose; and(ii) Wastewaters from the wood preserving process that have been reclaimed and are reused to treat wood.(10) EPA Hazardous Waste Nos. K060, K087, K141, K142, K143, K144, K145, K147, and K148, and any wastes from the coke by-products processes that are hazardous only because they exhibit the Toxicity Characteristic (TC) specified in section 11-261-24 when, subsequent to generation, these materials are recycled to coke ovens, to the tar recovery process as a feedstock to produce coal tar, or mixed with coal tar prior to the tar's sale or refining. This exclusion is conditioned on there being no land disposal of the wastes from the point they are generated to the point they are recycled to coke ovens or tar recovery or refining processes, or mixed with coal tar.(11) Nonwastewater splash condenser dross residue from the treatment of K061 in high temperature metals recovery units, provided it is shipped in drums (if shipped) and not land disposed before recovery.(12) Recovered oil from petroleum refining, exploration and production, and from transportation incident thereto, which is to be inserted into the petroleum refining process (SIC Code 2911) at or before a point (other than direct insertion into a coker) where contaminants are removed. This exclusion applies to recovered oil stored or transported prior to insertion, except that the oil must not be stored in a manner involving placement on the land, and must not be accumulated speculatively, before being so recycled. Recovered oil is oil that has been reclaimed from secondary materials (such as wastewater) generated from normal petroleum refining, exploration and production, and transportation practices. Recovered oil includes oil that is recovered from refinery wastewater collection and treatment systems, oil recovered from oil and gas drilling operations, and oil recovered from wastes removed from crude oil storage tanks. Recovered oil does not include (among other things) oil-bearing hazardous waste listed in subchapter D of chapter 11-261 (e.g., K048-K052, F037, F038). However, oil recovered from such wastes may be considered recovered oil. Recovered oil also does not include used oil as defined in section 11-279-1.(13) Excluded scrap metal (processed scrap metal, unprocessed home scrap metal, and unprocessed prompt scrap metal) being recycled.(14) Shredded circuit boards being recycled provided that they are: (i) Stored in containers sufficient to prevent a release to the environment prior to recovery; and(ii) Free of mercury switches, mercury relays and nickel-cadmium batteries and lithium batteries.(15) Condensates derived from the overhead gases from kraft mill steam strippers that are used to comply with 40 CFR 63.446(e). The exemption applies only to combustion at the mill generating condensates.(b) Solid wastes which are not hazardous wastes. The following solid wastes are not hazardous wastes: (1) Household waste, including household waste that has been collected, transported, stored, treated, disposed, recovered (e.g., refuse-derived fuel) or reused. "Household waste" means any material (including garbage, trash and sanitary wastes in septic tanks) derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreation areas). A resource recovery facility managing municipal solid waste shall not be deemed to be treating, storing, disposing of, or otherwise managing hazardous wastes for the purposes of regulation under chapters 11-260 through 11-280, if such facility: (i) Receives and burns only (A) Household waste (from single and multiple dwellings, hotels, motels, and other residential sources) and(B) Solid waste from commercial or industrial sources that does not contain hazardous waste; and(ii) Such facility does not accept hazardous wastes and the owner or operator of such facility has established contractual requirements or other appropriate notification or inspection procedures to assure that hazardous wastes are not received at or burned in such facility.(2) Solid wastes generated by any of the following and which are returned to the soils as fertilizers: (i) The growing and harvesting of agricultural crops.(ii) The raising of animals, including animal manures.(3) Mining overburden returned to the mine site.(4) Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste, generated primarily from the combustion of coal or other fossil fuels, except as provided by section 11-266-112 for facilities that burn or process hazardous waste.(6)(i) Wastes which fail the test for the Toxicity Characteristic because chromium is present or are listed in subchapter D due to the presence of chromium, which do not fail the test for the Toxicity Characteristic for any other constituent or are not listed due to the presence of any other constituent, and which do not fail the test for any other characteristic, if it is shown by a waste generator or by waste generators that: (A) The chromium in the waste is exclusively (or nearly exclusively) trivalent chromium; and(B) The waste is generated from an industrial process which uses trivalent chromium exclusively (or nearly exclusively) and the process does not generate hexavalent chromium; and(C) The waste is typically and frequently managed in non-oxidizing environments.(ii) Specific wastes which meet the standard in clauses (b)(6)(i)(A), (B), and (C) (so long as they do not fail the test for the toxicity characteristic for any other constituent, and do not exhibit any other characteristic) are: (A) Chrome (blue) trimmings generated by the following subcategories of the leather tanning and finishing industry; hair pulp/chrome tan/retan/wet finish; hair save/chrome tan/retan/wet finish; retan/wet finish; no beamhouse; through-the-blue; and shearling.(B) Chrome (blue) shavings generated by the following subcategories of the leather tanning and finishing industry: Hair pulp/chrome tan/retan/wet finish; hair save/chrome tan/retan/wet finish; retan/wet finish; no beamhouse; through-the-blue; and shearling.(C) Buffing dust generated by the following subcategories of the leather tanning and finishing industry; hair pulp/chrome tan/retan/wet finish; hair save/chrome tan/retan/wet finish; retan/wet finish; no beamhouse; through-the-blue.(D) Sewer screenings generated by the following subcategories of the leather tanning and finishing industry: Hair pulp/chrome tan/retan/wet finish; hair save/chrome tan/retan/wet finish; retan/wet finish; no beamhouse; through-the-blue; and shearling.(E) Wastewater treatment sludges generated by the following subcategories of the leather tanning and finishing industry: Hair pulp/chrome tan/retan/wet finish; hair save/chrome tan/retan/wet finish; retan/wet finish; no beamhouse; through-the-blue; and shearling.(F) Wastewater treatment sludges generated by the following subcategories of the leather tanning and finishing industry: Hair pulp/chrome tan/retan/wet finish; hair save/chrome tan/retain/wet finish; and through-the-blue.(G) Waste scrap leather from the leather tanning industry, the shoe manufacturing industry, and other leather product manufacturing industries.(H) Wastewater treatment sludges from the production of TiO2 pigment using chromium-bearing ores by the chloride process.(7) Solid waste from the extraction, beneficiation, and processing of ores and minerals (including coal, phosphate rock and overburden from the mining of uranium ore), except as provided by section 11-266-112 for facilities that burn or process hazardous waste. For purposes of paragraph 11-261-4(b)(7), beneficiation of ores and minerals is restricted to the following activities: Crushing; grinding; washing; dissolution; crystallization; filtration; sorting; sizing; drying; sintering; pelletizing; briquetting; calcining to remove water and/or carbon dioxide; roasting, autoclaving, and/or chlorination in preparation for leaching (except where the roasting (and/or autoclaving and/or chlorination)/leaching sequence produces a final or intermediate product that does not undergo further beneficiation or processing); gravity concentration; magnetic separation; electrostatic separation; flotation; ion exchange; solvent extraction; electrowinning; precipitation; amalgamation; and heap, dump, vat, tank, and in situ leaching. For the purpose of paragraph 11-261-4(b)(7), solid waste from the processing of ores and minerals includes only the following wastes: (i) Slag from primary copper processing;(ii) Slag from primary lead processing;(iii) Red and brown muds from bauxite refining;(iv) Phosphogypsum from phosphoric acid production;(v) Slag from elemental phosphorus production;(vi) Gasifier ash from coal gasification;(vii) Process wastewater from coal gasification;(viii) Calcium sulfate wastewater treatment plant sludge from primary copper processing;(ix) Slag tailings from primary copper processing;(x) Fluorogypsum from hydrofluoric acid production;(xi) Process wastewater from hydrofluoric acid production;(xii) Air pollution control dust/sludge from iron blast furnaces;(xiii) Iron blast furnace slag;(xiv) Treated residue from roasting/leaching of chrome ore;(xv) Process wastewater from primary magnesium processing by the anhydrous process;(xvi) Process wastewater from phosphoric acid production;(xvii) Basic oxygen furnace and open hearth furnace air pollution control dust/sludge from carbon steel production;(xviii) Basic oxygen furnace and open hearth furnace slag from carbon steel production;(xix) Chloride process waste solids from titanium tetrachloride production;(xx) Slag from primary zinc processing.(8) Cement kiln dust waste, except as provided by section 11-266-112 for facilities that burn or process hazardous waste.(9) Solid waste which consists of discarded arsenical-treated wood or wood products which fails the test for the Toxicity Characteristic for Hazardous Waste Codes D004 through D017 and which is not a hazardous waste for any other reason if the waste is generated by persons who utilize the arsenical-treated wood and wood product for these materials' intended end use.(10) Petroleum-contaminated media and debris that fail the test for the Toxicity Characteristic of section 11-261-24 (Hazardous Waste Codes D018 through D043 only) and are subject to the corrective action regulations under 40 CFR Part 280 or rules promulgated pursuant to the State's underground storage tank program, or the corrective action requirements of chapter 342L, HRS or the corrective action rules adopted under chapter 342L, HRS.(12) Used chlorofluorocarbon refrigerants from totally enclosed heat transfer equipment, including mobile air conditioning systems, mobile refrigeration, and commercial and industrial air conditioning and refrigeration systems that use chlorofluorocarbons as the heat transfer fluid in a refrigeration cycle, provided the refrigerant is reclaimed for further use.(13) Non-terne plated used oil filters that are not mixed with wastes listed in subchapter D of this chapter if these oil filters have been gravity hot-drained using one of the following methods: (i) Puncturing the filter anti-drain back valve or the filter dome end and hot-draining;(ii) Hot-draining and crushing;(iii) Dismantling and hot-draining; or(iv) Any other equivalent hot-draining method that will remove used oil.(14) Used oil re-refining distillation bottoms that are used as feedstock to manufacture asphalt products.(c) Hazardous wastes which are exempted from certain regulations. A hazardous waste which is generated in a product or raw material storage tank, a product or raw material transport vehicle or vessel, a product or raw material pipeline, or in a manufacturing process unit or an associated non-waste-treatment-manufacturing unit, is not subject to regulation under chapters 11-262 through 11-280 or to the notification requirements of HRS section 342J-6.5 until it exits the unit in which it was generated, unless the unit is a surface impoundment, or unless the hazardous waste remains in the unit more than ninety days after the unit ceases to be operated for manufacturing, or for storage or transportation of product or raw materials.(d) Samples. (1) Except as provided in paragraph (d)(2), a sample of solid waste or a sample of water, soil, or air, which is collected for the sole purpose of testing to determine its characteristics or composition, is not subject to any requirements of this chapter or chapters 11-262 through 11-280 or to the notification requirements of HRS section 342J-6.5, when: (i) The sample is being transported to a laboratory for the purpose of testing; or(ii) The sample is being transported back to the sample collector after testing; or(iii) The sample is being stored by the sample collector before transport to a laboratory for testing; or(iv) The sample is being stored in a laboratory before testing; or(v) The sample is being stored in a laboratory after testing but before it is returned to the sample collector; or(vi) The sample is being stored temporarily in the laboratory after testing for a specific purpose (for example, until conclusion of a court case or enforcement action where further testing of the sample may be necessary).(2) In order to qualify for the exemption in subparagraphs (d)(1)(i) and (ii), a sample collector shipping samples to a laboratory and a laboratory returning samples to a sample collector must: (i) Comply with U.S. Department of Transportation (DOT), U.S. Postal Service (USPS), or any other applicable shipping requirements; or(ii) Comply with the following requirements if the sample collector determines that DOT, USPS, or other shipping requirements do not apply to the shipment of the sample: (A) Assure that the following information accompanies the sample: (1) The sample collector's name, mailing address, and telephone number;(2) The laboratory's name, mailing address, and telephone number;(3) The quantity of the sample;(4) The date of shipment; and(5) A description of the sample.(B) Package the sample so that it does not leak, spill, or vaporize from its packaging.(3) This exemption does not apply if the laboratory determines that the waste is hazardous but the laboratory is no longer meeting any of the conditions stated in paragraph (d)(1).(e) Treatability Study Samples. (1) Except as provided in paragraph (e)(2), persons who generate or collect samples for the purpose of conducting treatability studies as defined in section 11-260-10, are not subject to any requirement of chapters 11-261 through 11-263 or to the notification requirements of section 342J-6.5, HRS, nor are such samples included in the quantity determinations of section 11-261-5 and subsection 11-262-34(d) when: (i) The sample is being collected and prepared for transportation by the generator or sample collector; or(ii) The sample is being accumulated or stored by the generator or sample collector prior to transportation to a laboratory or testing facility; or(iii) The sample is being transported to the laboratory or testing facility for the purpose of conducting a treatability study.(2) The exemption in paragraph (e)(1) is applicable to samples of hazardous waste being collected and shipped for the purpose of conducting treatability studies provided that: (i) The generator or sample collector uses (in "treatability studies") no more than 10,000 kg of media contaminated with non-acute hazardous waste, 1000 kg of non-acute hazardous waste other than contaminated media, 1 kg of acute hazardous waste, or 2500 kg of media contaminated with acute hazardous waste for each process being evaluated for each generated waste stream; and(ii) The mass of each sample shipment does not exceed 10,000 kg; the 10,000 kg quantity may be all media contaminated with non-acute hazardous waste, or may include 2500 kg of media contaminated with acute hazardous waste, 1000 kg of hazardous waste, and 1 kg of acute hazardous waste; and(iii) The sample must be packaged so that it will not leak, spill, or vaporize from its packaging during shipment and the requirements of clause (e)(2)(iii)(A) or (B) are met. (A) The transportation of each sample shipment complies with U.S. Department of Transportation (DOT), U.S. Postal Service (USPS), or any other applicable shipping requirements; or(B) If the DOT, USPS, or other shipping requirements do not apply to the shipment of the sample, the following information must accompany the sample: (1) The name, mailing address, and telephone number of the originator of the sample;(2) The name, address, and telephone number of the facility that will perform the treatability study;(3) The quantity of the sample;(4) The date of shipment; and(5) A description of the sample, including its EPA Hazardous Waste Number.(iv) The sample is shipped to a laboratory or testing facility which is exempt under subsection 11-261-4(f) or 40 CFR 261.4(f) or has an appropriate hazardous waste management permit issued by any state, a RCRA permit or interim status.(v) The generator or sample collector maintains the following records for a period ending three years after completion of the treatability study: (A) Copies of the shipping documents;(B) A copy of the contract with the facility conducting the treatability study;(C) Documentation showing: (1) The amount of waste shipped under this exemption;(2) The name, address, and EPA identification number of the laboratory or testing facility that received the waste;(3) The date the shipment was made; and(4) Whether or not unused samples and residues were returned to the generator.(vi) The generator reports the information required under clause (e)(2)(v)(C) in its biennial report.(3) The director may grant requests on a case-by-case basis for up to an additional two years for treatability studies involving bioremediation. The director may grant requests on a case-by-case basis for quantity limits in excess of those specified in subparagraphs (e)(2)(i) and (ii) and paragraph (f)(4), for up to an additional 5000 kg of media contaminated with non-acute hazardous waste, 500 kg of non-acute hazardous waste, 2500 kg of media contaminated with acute hazardous waste and 1 kg of acute hazardous waste: (i) In response to requests for authorization to ship, store and conduct treatability studies on additional quantities in advance of commencing treatability studies. Factors to be considered in reviewing such requests include the nature of the technology, the type of process (e.g., batch versus continuous), size of the unit undergoing testing (particularly in relation to scale-up considerations), the time/quantity of material required to reach steady state operating conditions, or test design considerations such as mass balance calculations.(ii) In response to requests for authorization to ship, store and conduct treatability studies on additional quantities after initiation or completion of initial treatability studies, when: There has been an equipment or mechanical failure during the conduct of a treatability study; there is a need to verify the results of a previously conducted treatability study; there is a need to study and analyze alternative techniques within a previously evaluated treatment process; or there is a need to do further evaluation of an ongoing treatability study to determine final specifications for treatment.(iii) The additional quantities and timeframes allowed in subparagraphs (e)(3)(i) and (ii) are subject to all the provisions in paragraph (e)(1) and subparagraph (e)(2) (iii) through (vi). The generator or sample collector must apply to the director and provide in writing the following information: (A) The reason why the generator or sample collector requires additional time or quantity of sample for treatability study evaluation and the additional time or quantity needed;(B) Documentation accounting for all samples of hazardous waste from the waste stream which have been sent for or undergone treatability studies including the date each previous sample from the waste stream was shipped, the quantity of each previous shipment, the laboratory or testing facility to which it was shipped, what treatability study processes were conducted on each sample shipped, and the available results on each treatability study;(C) A description of the technical modifications or change in specifications which will be evaluated and the expected results;(D) If such further study is being required due to equipment or mechanical failure, the applicant must include information regarding the reason for the failure or breakdown and also include what procedures or equipment improvements have been made to protect against further breakdowns; and(E) Such other information that the director considers necessary.(f) Samples Undergoing Treatability Studies at Laboratories and Testing Facilities. Samples undergoing treatability studies and the laboratory or testing facility conducting such treatability studies (to the extent such facilities are not otherwise subject to chapter 342J, HRS requirements) are not subject to any requirement of this chapter, or chapters 11-262 through 11-280, or to the notification requirements of section 342J-6.5, HRS provided that the conditions of paragraphs (f)(1) through (11) of this section are met. A mobile treatment unit (MTU) may qualify as a testing facility subject to paragraphs (f)(1) through (11) of this section. Where a group of MTUs are located at the same site, the limitations specified in paragraphs (f)(1) through (11) of this section apply to the entire group of MTUs collectively as if the group were one MTU. (1) No less than forty-five days before conducting treatability studies, the facility notifies the director, in writing that it intends to conduct treatability studies under this paragraph.(2) The laboratory or testing facility conducting the treatability study has an EPA identification number.(3) No more than a total of 10,000 kg of "as received" media contaminated with non-acute hazardous waste, 2500 kg of media contaminated with acute hazardous waste or 250 kg of other "as received" hazardous waste is subject to initiation of treatment in all treatability studies in any single day. "As received" waste refers to the waste as received in the shipment from the generator or sample collector.(4) The quantity of "as received" hazardous waste stored at the facility for the purpose of evaluation in treatability studies does not exceed 10,000 kg, the total of which can include 10,000 kg of media contaminated with non-acute hazardous waste, 2500 kg of media contaminated with acute hazardous waste, 1000 kg of non-acute hazardous wastes other than contaminated media, and 1 kg of acute hazardous waste. This quantity limitation does not include treatment materials (including nonhazardous solid waste) added to "as received" hazardous waste.(5) No more than 90 days have elapsed since the treatability study for the sample was completed, or no more than one year (two years for treatability studies involving bioremediation) have elapsed since the generator or sample collector shipped the sample to the laboratory or testing facility, whichever date first occurs. Up to 500 kg of treated material from a particular waste stream from treatability studies may be archived for future evaluation up to five years from the date of initial receipt. Quantities of materials archived are counted against the total storage limit for the facility.(6) The treatability study does not involve the placement of hazardous waste on the land or open burning of hazardous waste.(7) The facility maintains records for three years following completion of each study that show compliance with the treatment rate limits and the storage time and quantity limits. The following specific information must be included for each treatability study conducted: (i) The name, address, and EPA identification number of the generator or sample collector of each waste sample;(ii) The date the shipment was received;(iii) The quantity of waste accepted;(iv) The quantity of "as received" waste in storage each day;(v) The date the treatment study was initiated and the amount of "as received" waste introduced to treatment each day;(vi) The date the treatability study was concluded;(vii) The date any unused sample or residues generated from the treatability study were returned to the generator or sample collector or, if sent to a designated facility, the name of the facility and the EPA identification number.(8) The facility keeps, on-site, a copy of the treatability study contract and all shipping papers associated with the transport of treatability study samples to and from the facility for a period ending three years from the completion date of each treatability study.(9) The facility prepares and submits a report to the director, by March 15 of each year that estimates the number of studies and the amount of waste expected to be used in treatability studies during the current year, and includes the following information for the previous calendar year: (i) The name, address, and EPA identification number of the facility conducting the treatability studies;(ii) The types (by process) of treatability studies conducted;(iii) The names and addresses of persons for whom studies have been conducted (including their EPA identification numbers);(iv) The total quantity of waste in storage each day;(v) The quantity and types of waste subjected to treatability studies;(vi) When each treatability study was conducted;(vii) The final disposition of residues and unused sample from each treatability study.(10) The facility determines whether any unused sample or residues generated by the treatability study are hazardous waste under section 11-261-3 and, if so, are subject to chapters 11-261 through 11-268, and 11-270, unless the residues and unused samples are returned to the sample originator under the subsection 11-261-4(e) exemption.(11) The facility notifies the director, by letter when the facility is no longer planning to conduct any treatability studies at the site.[Eff 6/18/94; am 3/13/99; comp] (Auth: HRS §§ 342J-4, 342J-31, 342J-35) (Imp: 40 C.F.R. §261.4 )