N.Y. Comp. Codes R. & Regs. tit. 6 § 371.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 371.2 - Criteria for identifying the characteristics of hazardous waste and for listing hazardous wastes

(a)Criteria for identifying the characteristics of hazardous waste.

The commissioner will identify and define a characteristic of hazardous waste in addition to those characteristics already identified in section 371.3 of this Part, upon determining that:

(1) a solid waste that exhibits the characteristic may:

(i) cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness; or

(ii) pose a substantial present or potential hazard to human health or the environment when it is improperly treated, stored, transported, disposed of or otherwise managed; and

(2) the characteristic can be:

(i) measured by an available standardized test method which is reasonably within the capability of generators of solid waste or private sector laboratories that are available to serve generators of solid waste; or

(ii) reasonably detected by generators of solid waste through their knowledge of their waste.

(3) Whenever a proposed characteristic of a hazardous waste has been identified by the commissioner, the adoption of the proposed characteristic is subject to the approval of the State Environmental Board.

(b)Criteria for listing hazardous waste.

(1) The commissioner shall list a solid waste as a hazardous waste only upon determining that the solid waste meets one of the following criteria:

(i) The solid waste exhibits any of the characteristics of hazardous waste identified in section 371.3 of this Part.

(ii) The solid waste has been found to be fatal to humans in low doses or, in the absence of data on human toxicity, it has been shown in studies to have an oral LD 50 toxicity (rat) of less than 50 milligrams per kilogram, an inhalation LC 50 toxicity (rat) of less than 2 milligrams per liter, or a dermal LD 50 toxicity (rabbit) of less than 200 milligrams per kilogram, or is otherwise capable of causing or significantly contributing to an increase in serious irreversible, or incapacitating reversible, illness. (Waste listed in accordance with the criteria will be designated acute hazardous waste.)

(iii) The solid waste contains any of the toxic constituents listed in Appendix 23, infra, and, after considering the following factors, the commissioner concludes that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed:

(a) the nature of the toxicity presented by the constituent;

(b) the concentration of the constituent in the waste;

(c) the potential of the constituent or any toxic degradation product of the constituent to migrate from the waste into the environment under the types of improper management considered in clause (g) of this subparagraph;

(d) the persistence of the constituent or any toxic degradation product of the constituent;

(e) the potential for the constituent or any toxic degradation product of the constituent to degrade into nonharmful constituents and the rate of degradation;

(f) the degree to which the constituent or any degradation product of the constituent bioaccumulates in ecosystems;

(g) the plausible types of improper management to which the waste could be subjected;

(h) the quantities of the waste generated at individual generation sites or on a regional or national basis;

(i) the nature and severity of the human health and environmental damage that has occurred as a result of the improper management of wastes containing the constituent;

(j) action taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste or other constituent; and

(k) such other factors as may be appropriate. Constituents will be listed in Appendix 23 only if they have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms.

(2) The commissioner may list classes or types of solid waste as hazardous waste if the commissioner has reason to believe that individual wastes, within the class or type of waste, typically or frequently are hazardous under the definition of hazardous waste found in article 27, title 9, of the Environmental Conservation Law.

(3) The commissioner will use the criteria for listing specified in this subdivision to establish the exclusion limits referred to in section 371.1(f)(3) of this Part.

(4) Whenever the commissioner proposes to list a solid waste as a hazardous waste where such solid waste has not been so listed by the administrator, the listing of the solid waste shall be subject to the approval of the State Environmental Board.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 371.2

Amended New York State Register March 4, 2020/Volume XLII, Issue 09, eff.4/18/2020