N.H. Code Admin. R. Env-Hw 401.03

Current through Register No. 25, June 20, 2024

Section Env-Hw 401.03 - Exemptions

(a) The following materials shall not be hazardous wastes under the hazardous waste rules provided any conditions or prohibitions specified below are met:

(1) Domestic sewage;

(2) Wastewater discharges that are industrial point source discharges in compliance with applicable New Hampshire permits and rules and federal permits and regulations under section 402 of the Clean Water Act, as amended;

(3) Irrigation return waters;

(4) Source, special nuclear, or nuclear by-product material as defined by the Atomic Energy Act of 1954 as amended, 42 USC 2011 et seq.;

(5) Material subjected to in-situ mining techniques that are not removed from the ground as part of the extraction process;

(6) Pulping liquors, also known as black liquors, that are reclaimed in a pulping liquor recovery furnace and then reused in the pulping process and not accumulated speculatively as defined in Env-Hw 811.01;

(7) Spent sulfuric acid used as a feedstock in an industrial furnace to produce virgin sulfuric acid, provided that the spent sulfuric acid is not accumulated speculatively as defined in Env-Hw 811.01;

(8) Secondary materials, as defined in Env-Hw 104, provided:

a. 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;

b. Reclamation does not involve controlled flame combustion such as occurs in boilers, industrial furnaces, or incinerators;

c. The secondary materials are never accumulated in such tanks for over 12 months without being reclaimed; and

d. The reclaimed material is not used to produce a fuel or to produce products that are used in a manner constituting disposal;

(9) Excluded scrap metal, as defined in Env-Hw 103, provided it is being recycled;

(10) Shredded circuit boards being recycled, provided they are:

a. Stored in containers sufficient to prevent a release to the environment prior to recovery; and

b. Free of mercury switches, mercury relays, and nickel-cadmium batteries and lithium batteries;

(11) Solvent-contaminated wipes that are cleaned for reuse, provided:

a. The generator either launders or dry cleans the solvent-contaminated wipes on site or sends the solvent-contaminated wipes to be cleaned by a laundry or dry cleaner:

1. That is located in New Hampshire, or in a state that has adopted the exclusion at 40 CFR 261.4(a)(26); and

2. Whose discharge, if any, is regulated under sections 301 and 402 or section 307 of the Clean Water Act;

b. The generator maintains at its site the following documentation:

1. The name and address of the laundry or dry cleaner that is receiving the solvent-contaminated wipes;

2. Documentation of compliance with (g)(2), below; and

3. A written description of the process the generator uses to ensure that solvent-contaminated wipes contain no free liquids when laundered or dry cleaned on site or transported off site for laundering or dry cleaning; and

c. The requirements of (g), below, are met;

(12) Spent wood preserving solutions that have been reclaimed and are being reused for their original intended purpose and wastewaters from the wood preserving process that have been reclaimed and are being reused to treat wood, provided the requirements of 40 CFR 261.4(a)(9)(iii) are satisfied;

(13) Non-wastewater splash condenser dross residue from the treatment of K061 waste in high temperature metals recovery units, provided the residue is shipped in drums if shipped off site for recovery and is not land disposed before or after recovery;

(14) When recycled in the manner and under the conditions as described in 40 CFR 261.4(a)(12)(i):

a. Oil-bearing hazardous secondary materials that are generated at a petroleum refinery and are inserted into the petroleum refining process, as those terms are defined in 40 CFR 261.4(a)(12)(i), unless the material is placed on the land or speculatively accumulated before being recycled; and

b. Recovered oil, as defined in 40 CFR 261.4(a)(12)(ii);

(15) Petrochemical-recovered oil from an associated organic chemical manufacturing facility, as defined in 40 CFR 261.4(a)(18), where the recovered oil will be inserted into the petroleum refining process along with normal petroleum refinery process streams, provided that the requirements of 40 CFR 261.4(a)(18) are met; and

(16) Spent caustic solutions from petroleum-refining liquid treating processes that are used as a feedstock to produce cresylic or naphthenic acid, unless the material is placed on the land or accumulated speculatively as described in Env-Hw 811.01.

(b) The following materials shall be exempt from regulation under the hazardous waste rules, subject to any conditions, prohibitions, or other limitations specified:

(1) Household wastes, subject to (b)(2), below;

(2) Household hazardous wastes, until such time as they are collected, whether as part of a household hazardous waste collection project or otherwise;

(3) Agricultural wastes that are returned to the soil as fertilizers for growing agricultural crops and raising animals;

(4) Mining overburden returned to the mine site;

(5) Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or fossil fuels;

(6) Wastes that fail the test for the toxicity characteristic because chromium is present, or that are listed in Env-Hw 402 due to the presence of chromium, and meet the criteria of 40 CFR 261.4(b)(6)(i), and are:

a. Listed in 40 CFR 261.4(b)(6)(ii); or

b. Subject to a waiver obtained by the generator in accordance with Env-Hw 202;

(7) Subject to (c), below, solid waste from the extraction, beneficiation, and processing of ores and minerals including coal, phosphate rock, and overburden from the mining of uranium ore;

(8) Cement kiln dust waste;

(9) Waste that consists of discarded arsenical-treated wood or wood products that fail the test for the toxicity characteristic for EPA hazardous waste numbers D004 through D017 and that is not a hazardous waste for any other reason, provided the waste is generated by persons who use the arsenical-treated wood and wood products for these materials' intended end use;

(10) Used chlorofluorocarbon (CFC) 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 CFCs as the heat transfer fluid in a refrigeration cycle, provided the refrigerant is reclaimed for further use;

(11) Non-terne-plated used oil filters that are not mixed with wastes listed in Env-Hw 402, provided the oil filters have been gravity hot-drained using one of the following methods:

a. Puncturing the filter anti-drainback valve or the filter dome end and hot-draining;

b. Hot-draining and crushing;

c. Dismantling and hot-draining; or

d. Any other equivalent hot-draining method that will remove the used oil from the filter;

(12) Hazardous waste 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 a manufacturing process unit or an associated non-waste-treatment manufacturing unit before it exits the unit in which it was generated, unless:

a. The unit is a surface impoundment; or

b. The hazardous waste remains in the unit for greater than 90 days after the unit ceases to be operated for manufacturing or for storage or transportation of product or raw materials;

(13) Samples of solid or hazardous wastes, water, soil, or air that are collected for the sole purpose of testing to determine its characteristics or composition, provided the samples are being stored or transported in accordance with 40 CFR 261.4(d);

(14) Treatability study samples and samples undergoing treatability studies at laboratories and testing facilities of up to 250 kg of non-acute hazardous waste and up to 1 kg of acute hazardous waste and as set forth in 40 CFR 261.4(e) and (f);

(15) Materials that are reclaimed from wastes and that are used beneficially, unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal;

(16) Waste pickle liquor sludges generated by lime stabilization of spent pickle liquor from the iron and steel industry Standard Industry Classification, Codes 331 and 332, or compatible North American Industry Classification System (NAICS) codes, even though they are generated from the treatment, storage, or disposal of a hazardous waste, provided they do not exhibit a hazardous waste characteristic specified in Env-Hw 403;

(17) The following wastes, provided that they do not exhibit a hazardous waste characteristic specified in Env-Hw 403:

a. Used oil sludges derived from collection, storage, treatment, or processing of used oils, provided the sludges are sent to a facility authorized to receive them; and

b. Waters separated from used oil by gravity separation or other physical or chemical means, unless the waters contain greater than 5 percent oil;

(18) Spill absorbent materials, soil, and debris from the cleanup of spills of virgin fuel oil and virgin lubricating products, provided that the spill absorbent materials, soil, and debris do not exhibit a hazardous waste characteristic specified Env-Hw 403;

(19) Spill absorbent materials, soil, and debris from the cleanup of used oil spills, provided:

a. The used oil was not previously mixed with any other hazardous waste listed in Env-Hw 402; and

b. No hazardous waste characteristic specified in Env-Hw 403 is exhibited by the spill absorbent materials, soil, or debris;

(20) Spill absorbent materials, soil, and debris from the cleanup of spills of virgin gasoline, provided that the spill absorbent materials, soil, and debris do not exhibit a hazardous waste characteristic as set forth in Env-Hw 403;

(21) Containers and inner liners from containers of hazardous waste, provided that the containers and inner liners are empty pursuant to (d), below;

(22) Petroleum-contaminated media and debris that:

a. Fail the test for the toxicity characteristic of EPA hazardous waste numbers D018 through D043 only, as set forth in Env-Hw 403.06;

b. Are generated from releases of underground storage tanks subject to Env-Or 400; and

c. Are managed in accordance with Env-Or 600;

(23) Manufactured gas plant contaminated media and debris that:

a. Fail the test for the toxicity characteristic of EPA hazardous waste number D018 only, as set forth in Env-Hw 403.06; and

b. Are treated in an incinerator or a thermal desorption unit that is authorized under the destination state's rules;

(24) Wood ash from the burning of wood products that is only hazardous due to the corrosivity characteristic as set forth in Env-Hw 403.04(b)(3);

(25) Nitroglycerine, listed as P081, provided that it:

a. Was to be used for medicinal purposes; and

b. Does not exhibit a hazardous waste characteristic as set forth in Env-Hw 403;

(26) Used oil di-electric fluid containing PCBs in concentrations of 50 parts per million or greater, provided that the used oil di-electric fluid:

a. Would only have been identified because it is listed as NH01 or because it fails the test for the toxicity characteristic of EPA hazardous waste numbers D018 through D043 specified in Env-Hw 403.06; and

b. Is managed in compliance with all applicable requirements of 40 CFR Part 761;

(27) Used oil re-refining distillation bottoms that are used as feedstock to manufacture asphalt products;

(28) Solvent-contaminated wipes that are sent for disposal, provided:

a. The solvent-contaminated wipes are not hazardous waste due to the presence of trichloroethylene;

b. The generator maintains at its site the following documentation:

1. The name and address of the disposal facility that is receiving the solvent-contaminated wipes;

2. Documentation of compliance with (g)(2), below; and

3. A written description of the process the generator uses to ensure that solvent-contaminated wipes contain no free liquids, when being transported for disposal;

c. The generator sends the solvent-contaminated wipes for disposal to an authorized out-of-state facility where the exclusion at 40 CFR 261.4(b)(18) has been adopted or to one of the following facilities in New Hampshire:

1. A municipal waste combustor or other combustion facility that is regulated under section 129 of the Clean Air Act;

2. A hazardous waste combustor, boiler, or industrial furnace that is regulated under Env-Hw 707, Env-Hw 708 or 40 CFR part 266 subpart H; or

3. A hazardous waste landfill that is regulated under Env-Hw 707 or Env-Hw 708; and

d. The requirements of (g), below, are met;

(29) Wipes contaminated with used oil, provided the used oil was not previously mixed with and does not otherwise contain any other hazardous wastes listed in Env-Hw 402, and provided the wipes do not exhibit any hazardous waste characteristic specified in Env-Hw 403;

(30) Waste derived from burning any of the materials exempt from regulation under (b)(38), below, even though it is generated from the treatment, storage, or disposal of a hazardous waste, provided it does not exhibit any hazardous waste characteristic specified in Env-Hw 403;

(31) Subject to (h), below, non-wastewater residues, such as slag, resulting from high temperature metals recovery (HTMR) processing of K061, K062, or F006 waste, provided the conditions of 40 CFR 261.3(c)(2)(ii)(C)(1) and (2) are met, even though the residues are generated from the treatment, storage, or disposal of a hazardous waste, provided the residues do not exhibit any hazardous waste characteristic specified in Env-Hw 403;

(32) Biological treatment sludge from the treatment of any of the following wastes listed in Env-Hw 402.07, provided the sludge does not exhibit any hazardous waste characteristic specified in Env-Hw 403:

a. Organic waste, including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates, from the production of carbamates and carbamoyl oximes, listed as K156; or

b. Wastewaters from the production of carbamates and carbamoyl oximes, listed as K157;

(33) Catalyst inert support media separated from one of the following wastes listed in Env-Hw 402.07, provided they do not exhibit any hazardous waste characteristic specified in Env-Hw 403:

a. Spent hydrotreating catalyst, listed as K171; or

b. Spent hydrorefining catalyst, listed as K172;

(34) The following materials, provided they do not exhibit any hazardous waste characteristic specified in Env-Hw 403:

a. Subject to (h), below, hazardous debris as defined in 40 CFR 268, that has been treated using one of the required extraction or destruction technologies specified in Table 1 of 40 CFR 268.45; and

b. Debris as defined in 40 CFR 268, that is not regulated under Env-Hw 401.01(b)(2);

(35) Subject to (i), below, leachate or gas condensate collected from landfills where certain solid wastes have been disposed, provided that:

a. The solid wastes disposed would meet one or more of the listing descriptions for EPA hazardous waste numbers K169, K170, K171, K172, K174, K175, K176, K177, K178, and K181 if the wastes had been generated after the effective date of the listing;

b. The solid wastes described in a., above, were disposed prior to the effective date of the listing;

c. The leachate or gas condensate does not exhibit any hazardous waste characteristic specified in Env-Hw 403 and is not derived from any other listed hazardous waste in Env-Hw 402; and

d. Discharge of the leachate or gas condensate, including leachate or gas condensate transferred from the landfill to a POTW by truck, rail, or dedicated pipe, is in compliance with §307(b) or §402 of the Clean Water Act;

(36) Industrial ethyl alcohol that is reclaimed, except that exports and imports of such recyclable materials shall comply with the requirements of 40 CFR 262 Subpart H;

(37) Scrap metal being recycled that is not otherwise exempt under (a)(9), above;

(38) Fuels produced from the refining of oil-bearing hazardous wastes along with normal process streams at a petroleum refining facility if such wastes result from normal petroleum refining, production, or transportation practices;

(39) Coke and coal tar from the iron and steel industry that contains EPA hazardous waste number K087 from the iron and steel production process; and

(40) Mercury-containing dental amalgam waste generated by small quantity generators, provided the waste is being recycled and the generator meets the requirements of Env-Wq 306.

(c) The exemption at (b)(7), above, shall not include spent potliners from primary aluminum reduction, which shall be regulated as K088 hazardous wastes.

(d) For the purposes of (b)(21), above, containers and inner liners shall be deemed empty under the following conditions:

(1) For those containers or inner liners that have held hazardous waste other than compressed gas, acutely hazardous waste identified in Env-Hw 402.04 or Env-Hw 402.06, or hazardous waste pharmaceuticals, when all wastes have been removed that can be removed using the practices commonly employed to remove materials from that type of container, such as pouring, pumping, or aspirating, and:

a. No more than one inch of residue remains on the bottom of the container or inner liner; or

b. The amount or residue remaining in the container or inner liner is:

1. No more than 3 percent by weight of the total capacity of the container if the container is less than or equal to 119 gallons in size; or

2. No more than 0.3 percent by weight of the total capacity of the container if the container is greater than 119 gallons in size;

(2) For those containers that have held a hazardous waste that is a compressed gas, when the pressure in the container approaches atmospheric pressure;

(3) For those containers or inner liners that have held acutely hazardous waste, when:

a. The container or inner liner has been triple rinsed using a solvent capable of removing the commercial chemical product or manufacturing chemical intermediate;

b. The container or inner liner has been cleansed by another method that has been shown in the scientific literature, or by tests conducted by the generator, to achieve equivalent removal; or

c. In the case of a container, the inner liner that prevented contact of the commercial chemical product or manufacturing chemical intermediate with the container has been removed; and

(4) For those containers that have held hazardous waste pharmaceuticals, when the criteria in 40 CFR 266.507, as amended by Env-Hw 1302.02(h), have been met.

(e) Residues removed from empty containers shall be subject to regulation under the hazardous waste rules as set forth in Env-Hw 404.04.

(f) The following listed hazardous wastes shall be exempt from regulation under the hazardous waste rules, except that wastes exempt under this paragraph are subject to the land disposal restrictions of Env-Hw 1200, as applicable, even if the wastes no longer exhibit a characteristic at the point of land disposal:

(1) A hazardous waste that is listed in Env-Hw 402.04(b), Env-Hw 402.05(b), Env-Hw 402.06(a) or Env-Hw 402.07(a) solely because it exhibits one or more characteristics of ignitability, corrosivity, or reactivity as specified in Env-Hw 403.03 through 403.05, respectively, if the waste no longer exhibits any characteristic of hazardous waste specified in Env-Hw 403;

(2) A waste or material mixed with any hazardous waste that is listed in Env-Hw 402.04(b), Env-Hw 402.05(b), Env-Hw 402.06(a) or Env-Hw 402.07(a) solely because it exhibits one or more characteristics of ignitability, corrosivity, or reactivity, as regulated under Env-Hw 401.01(b)(2), if the mixture no longer exhibits any characteristic of hazardous waste identified in Env-Hw 403;

(3) Any waste generated from treating, storing, or disposing of a hazardous waste that is listed in Env-Hw 402.04(b), Env-Hw 402.05(b), Env-Hw 402.06(a) or Env-Hw 402.07(a) solely because it exhibits one or more characteristics of ignitability, corrosivity, or reactivity, as regulated under Env-Hw 401.01(c)(2) and Env-Hw 404.03, if the waste no longer exhibits any characteristic of hazardous waste specified in Env-Hw 403; and

(4) Any mixture of a waste exempt from regulation under Env-Hw 401.03(b)(7) and a hazardous waste listed in Env-Hw 402.04(b), Env-Hw 402.05(b), Env-Hw 402.06(a) or Env-Hw 402.07(a) solely because it exhibits one or more characteristics of ignitability, corrosivity or reactivity, as regulated under Env-Hw 401.01(b)(2), if the mixture no longer exhibits any characteristic of hazardous waste specified in Env-Hw 403 for which the hazardous waste was listed in Env-Hw 402.04(b), Env-Hw 402.05(b), Env-Hw 402.06(a) or Env-Hw 402.07(a).

(g) For the purposes of (a)(11) and (b)(28), above, solvent-contaminated wipes shall be exempt from regulation under the hazardous waste rules, from the point of generation, provided that:

(1) Solvent-contaminated wipes and any containers in which they are stored contain only those solvents that were absorbed during use of such wipes in a cleaning or degreasing process;

(2) No more than 180 days after the date on which a generator begins to accumulate solvent-contaminated wipes in any container, all solvent-contaminated wipes in that container are removed and sent for cleaning or disposal;

(3) Solvent-contaminated wipes, when accumulated, stored, and transported, are contained in non-leaking, closed containers;

(4) Any container in which solvent-contaminated wipes are accumulated, stored, or transported is able to contain free liquids;

(5) Containers in which solvent-contaminated wipes are accumulated or stored are closed at all times except when it is necessary to add or remove solvent-contaminated wipes;

(6) Containers in which solvent-contaminated wipes are accumulated, stored, or transported are clearly labeled or marked with the words "Excluded Solvent-Contaminated Wipes";

(7) When the container is full, or when the solvent-contaminated wipes are no longer being accumulated, or when the container is being transported, the container is sealed with all lids properly and securely affixed to the container and all openings tightly bound or closed sufficiently to prevent leaks and emissions;

(8) At the point of being sent for cleaning on site or of being transported off site for cleaning or disposal, the solvent-contaminated wipes contain no free liquids; and

(9) Free liquids removed from the solvent-contaminated wipes or from the container holding the wipes are managed in accordance with the hazardous waste rules.

(h) A person claiming the exemption in (b)(31) or (b)(34)a., above, shall document the claim in accordance with (j), below, and prove, by clear and convincing evidence, that the material meets all of the exemption requirements.

(i) With regard to the exemption in (b)(35), above, leachate or gas condensate shall not be exempt if it is stored or managed in a surface impoundment prior to discharge, except as provided in 40 CFR 261.4(b)(15)(v).

(j) A person who claims that a certain material is not a hazardous waste or is exempt from regulation under the hazardous waste rules, including Env-Hw 803.05, shall provide, upon request, the documentation specified in 40 CFR 261.2(f).

(k) Subject to (l), below, airbag waste at an airbag waste handler or during transport to an airbag waste collection facility or designated facility shall be exempt from regulation under the hazardous waste rules provided that:

(1) The airbag waste is accumulated in a quantity of no more than 250 airbag modules or airbag inflators, for no longer than 180 days;

(2) The airbag waste is packaged in a container designed to address the risk posed by the airbag waste and labeled "Airbag Waste - Do Not Reuse";

(3) The airbag waste is sent directly to either:

a. An airbag waste collection facility in the United States under the control of:

1. A vehicle manufacturer or its authorized representative; or

2. An authorized party administering a remedy program in response to a recall under the National Highway Traffic Safety Administration; or

b. A designated facility;

(4) The transport of the airbag waste complies with all applicable US DOT regulations in 49 CFR Parts 171 through 180 during transit; and

(5) The airbag waste handler maintains at the handler facility, for no less than 3 years, records of all off-site shipments of airbag waste and all confirmations of receipt from the receiving facility.

(l) For the purposes of (k), above:

(1) The recordkeeping requirements of (k)(5) shall be as follows:

a. Records of off-site shipments shall contain at a minimum for each shipment:

1. The name of the transporter;

2. The date of the shipment;

3. The name and address of the receiving facility; and

4. The quantities of airbag modules and airbag inflators, as applicable, in the shipment;

b. Confirmations of receipt shall include:

1. The name and address of the receiving facility;

2. The quantities of airbag modules and airbag inflators, as applicable, received; and

3. The date of receipt; and

c. Shipping records and confirmations of receipt shall be made available for inspection upon request and may be satisfied by routine business records, including but not limited to:

1. Electronic or paper financial records;

2. Bills of lading;

3. Copies of US DOT shipping papers; or

4. Electronic confirmations of receipt;

(2) Upon arrival at an airbag waste collection facility or designated facility:

a. Airbag waste shall be subject to all applicable hazardous waste rules; and

b. The facility receiving airbag waste shall be considered the hazardous waste generator for the purposes of the hazardous waste rules and shall comply with the requirements of Env-Hw 500; and

(3) Reuse in vehicles of defective airbag modules or defective airbag inflators subject to a recall under the National Highway Traffic Safety Administration shall be prohibited.

N.H. Code Admin. R. Env-Hw 401.03

#5053, eff 1-24-91; ss by #5886, eff 8-26-94; amd by #6384-B, eff 11-26-96; amd by #7207-B, eff 2-26-00; amd by #7208, eff 2-26-00; ss by #7333, eff 8-1-00; amd by #7578, eff 10-13-01; amd by #8714, INTERIM, eff 9-5-06, EXPIRED: 3-4-07; amd by #8790, eff 1-5-07; ss by #9215, INTERIM, eff 8-1-08; (See Revision Note at chapter heading for Env-Hw 400) ss by #9367, eff 1-28-09; amd by #10205, eff 10-19-12

Amended byVolume XXXIV Number 50, Filed December 11, 2014, Proposed by #10739, Effective 12/2/2014, Expires12/2/2024.

Amended by Volume XXXVII Number 32, Filed August 10, 2017, Proposed by #12346, Effective 8/14/2017, Expires 8/14/2027.

Amended by Volume XXXIX Number 50, Filed December 12, 2019, Proposed by #12922, Effective 11/23/2019, Expires 11/23/2029.

Amended by Volume XLII Number 32, Filed August 11, 2022, Proposed by #13406, Effective 7/23/2022, Expires 7/23/2032