40 CFR §261.4(d-f)

§261.4 Exclusions

(d) Samples

(1) Except as provided in paragraph (d)(2) of this section, 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 part or Parts 262 through 268 or Part 270 or Part 124 of this chapter or to the notification requirements of Section 3010 of RCRA, 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 paragraphs (d)(1)(i) and (ii) of this section, 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) of this section.


(e) Treatability Study Samples

(1) Except as provided in paragraph (e)(2) of this section, persons who generate or collect samples for the purpose of conducting treatability studies as defined in section 260.10, are not subject to any requirement of Parts 261 through 263 of this chapter or to the notification requirements of Section 3010 of RCRA, nor are such samples included in the quantity determinations of § 261.5 and § 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) of this section 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, 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 paragraph A or B of this subparagraph 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 § 261.4(f) or has an appropriate RCRA permit or interim status. (v) The generator or sample collector maintains the following records for a period ending 3 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 paragraph (e)(v)(C) of this section in its biennial report.
(3) The Regional Administrator may grant requests on a case-by-case basis for up to an additional two years for treatability studies involving bioremediation. The Regional Administrator may grant requests on a case-by-case basis for quantity limits in excess of those specified in paragraphs (e)(2)(i) and (ii) and (f)(4) of this section, 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 paragraph (e)(3)(i) and (ii) of this section are subject to all the provisions in paragraphs (e)(1) and (e)(2)(iii) through (vi) of this section. The generator or sample collector must apply to the Regional Administrator in the Region where the sample is collected 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 Regional Administrator considers necessary.

(f) Samples Undergoing Treatability Studies of 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 RCRA requirements) are not subject to any requirement of this Part, Part 124, Parts 262 - 266, 268, and 270, or to the notification requirements of Section 3010 of RCRA 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 (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 45 days before conducting treatability studies, the facility notifies the Regional Administrator, or State Director (if located in an authorized State), 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 3 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 umber 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 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;
(vi) 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 3 years from the completion date of each treatability study.
(9) The facility prepares and submits a report to the Regional Administrator, or State Director (if located in an authorized State), 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 § 261.3 and, if so, are subject to Parts 261 through 268, and Part 270 of this Chapter, unless the residues and unused samples are returned to the sample originator under the § 261.4(e) exemption.
(11) The facility notifies the Regional Administrator, or State Director (if located in an authorized State), by letter when the facility is no longer planning to conduct any treatability studies at the site.

[45 FR 33119, May 19, 1980, as amended at 45 FR 72037, Oct. 30, 1980; 45 FR 76620, Nov. 19, 1980; 45 FR 78531, Nov. 25, 1980; 45 FR 80287, Dec. 4, 1980; 46 FR 27476, May 20, 1981; 46 FR 47429, Sept. 25, 1981; 48 FR 14293, Apr. 1, 1983; 48 FR 30115, June 30, 1983; 49 FR 44980, Nov. 13, 1984; 50 FR 665, Jan. 4, 1985; 50 FR 14219, Apr. 11, 1985; 50 FR 28743, July 15, 1985; 51 FR 40636, Nov. 7, 1986; 53 FR 27301, July 19, 1988; 53 FR 35420, Sept. 13, 1988; 54 FR 36641, Sept. 1, 1989; 55 FR 2322, Jan. 23, 1990; 55 FR 11798, March 29, 1990; corrected at 55 FR 26987, June 29, 1990; 55 FR 40834, Oct. 5, 1990; 55 FR 50450, Dec. 6, 1990; 56 FR 3978, Feb. 1, 1991; 56 FR 7134, Feb. 21, 1991; 56 FR 13406, Apr. 2, 1991; 56 FR 27300, June 13, 1991; 56 FR 30192, July 1, 1991; 56 FR 41164, Aug. 19, 1991; 57 FR 21524, May 20, 1992; 57 FR 29220, July 1, 1992; 57 FR 30657, July 10, 1992; 57 FR 37284, Aug. 18, 1992; 58 FR 26420, May 3, 1993, 58 FR 34369, June 25, 1993; 59 FR 8362, Feb. 18, 1994; 59 FR 38536, July 28, 1994; 61 FR 13103, March 26, 1996; 62 FR 25998, May 12, 1997]

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