(a) Hazardous waste determination. A person who generates
a solid waste, as defined in §335.1 of this title (relating to
Definitions), must make an accurate determination as to whether that
waste is a hazardous waste in order to ensure wastes are properly
managed according to applicable Resource Conservation and Recovery
Act (RCRA) and Texas Administrative Code regulations. The hazardous
waste determination for each solid waste must be made at the point
of waste generation, before any dilution, mixing, or other alteration
of the waste occurs, and at any time in the course of its management
that it has, or may have, changed its properties as a result of exposure
to the environment or other factors that may change the properties
of the waste such that the RCRA classification of the waste may change.
A hazardous waste determination is made using the following steps:
(1) A person must determine whether the material is
excluded or exempted from regulation as a solid waste or as hazardous
waste under the definition of solid waste in §335.1 of this title
or identified in 40 Code of Federal Regulations (CFR) Part 261, Subpart
A as amended in the Federal Register through
December 9, 2019 (84 FR 67202), or Subpart E as amended in the Federal Register through August 6, 2018
(83 FR 38262).
(2) If the waste is not excluded from regulation as
a solid waste, the person must then use knowledge of the waste to
determine whether the waste is a hazardous waste because it meets
any of the listing descriptions, or is mixed with or derived from
a waste that meets any of the listing descriptions identified in 40
CFR Part 261, Subpart D, as amended in the Federal
Register through February 22, 2019 (84 FR 5816). Acceptable
knowledge that may be used in making an accurate determination as
to whether the waste is listed may include waste origin, composition,
the process producing the waste, feedstock, and other reliable and
relevant information.
(3) The person must also determine whether the waste
exhibits one or more hazardous characteristics as identified in 40
CFR Part 261, Subpart C, as amended in the Federal
Register through March 18, 2010 (75 FR 12989) by following
the procedures in subparagraph (A) or (B) of this paragraph or a combination
of both.
(A) The person must apply knowledge of the hazard characteristic
of the waste in light of the materials or the processes used to generate
the waste. Acceptable knowledge may include process knowledge (e.g.,
information about chemical feedstocks and other inputs to the production
process); knowledge of products, by-products, and intermediates produced
by the manufacturing process; chemical or physical characterization
of wastes; information on the chemical and physical properties of
the chemicals used or produced by the process or otherwise contained
in the waste; testing that illustrates the properties of the waste;
or other reliable and relevant information about the properties of
the waste or its constituents. A test other than a test method set
forth in 40 CFR Part 261, Subpart C or an equivalent test method approved
by the United States Environmental Protection Agency (EPA) Administrator
under 40 CFR §260.21, or by the executive director under §335.509
of this title (relating to Waste Analysis), may be used as part of
a person's knowledge to determine whether a solid waste exhibits a
characteristic of hazardous waste. However, such tests do not, by
themselves, provide definitive results. Persons testing their waste
must obtain a representative sample, as defined in §335.1 of
this title, of the waste for the testing,
(B) When available knowledge is inadequate to make
an accurate determination, the person must test the waste according
to the applicable methods set forth in 40 CFR Part 261, Subpart C
or according to an equivalent method approved by the EPA Administrator
under 40 CFR §260.21, or approved by the executive director under §335.509
of this title, and in accordance with the following:
(i) Persons testing their waste must obtain a representative
sample, as defined in §335.1 of this title, of the waste for
the testing.
(ii) Where a test method is specified in 40 CFR Part
261, Subpart C, the results of the regulatory test, when properly
performed, are definitive for determining the regulatory status of
the waste.
(b) Recordkeeping for small or large quantity generators.
A large quantity generator and a small quantity generator shall maintain
records supporting its hazardous waste determinations in accordance
with 40 CFR §262.11(f) as adopted under §335.53 of this
title (relating to General Standards Applicable to Generators of Hazardous
Waste).
(c) Recordkeeping for hazardous waste and Class 1 waste
generators. Generators shall make and maintain records of a hazardous
waste determination in accordance with §335.513 of this title
(relating to Documentation Required), and 40 CFR §262.11(f) as
adopted under §335.53 of this title.
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Source Note: The provisions of this §335.504 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective November 23, 1993, 18 TexReg 8218; amended to be effective March 6, 1996, 21 TexReg 2400; amended to be effective November 15, 2001, 26 TexReg 9135; amended to be effective August 16, 2007, 32 TexReg 5010; amended to be effective October 29, 2009, 34 TexReg 7321; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective January 8, 2015, 40 TexReg 77; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective June 11, 2020, 45 TexReg 3780; amendedto be effective February 3, 2022, 47 TexReg 318 |