Section 721.103  Definition of Hazardous Waste

a)         A solid waste, as defined in Section 721.102, is a hazardous waste if the following is true of the waste:

1)         It is not excluded from regulation as a hazardous waste pursuant to Section 721.104(b); and

2)         It meets any of the following criteria:

A)        It exhibits any of the characteristics of hazardous waste identified in Subpart C.  However, any mixture of a waste from the extraction, beneficiation, and processing of ores and minerals excluded pursuant to Section 721.104(b)(7) and any other solid waste exhibiting a characteristic of hazardous waste pursuant to Subpart C is a hazardous waste only if it exhibits a characteristic that would not have been exhibited by the excluded waste alone if such mixture had not occurred, or if the mixture continues to exhibit any of the characteristics exhibited by the non-excluded wastes prior to mixture.  Further, for the purposes of applying the toxicity characteristic to such mixtures, the mixture is also a hazardous waste if it exceeds the maximum concentration for any contaminant listed in Section 721.124 that would not have been exceeded by the excluded waste alone if the mixture had not occurred or if it continues to exceed the maximum concentration for any contaminant exceeded by the nonexempt waste prior to mixture.

B)        It is listed in Subpart D and has not been excluded from the lists in Subpart D pursuant to 35 Ill. Adm. Code 720.120 and 720.122.

C)        This subsection (a)(2)(B) corresponds with 40 CFR 261.3(a)(2)(iii), which USEPA removed and marked as "reserved" at 66 Fed. Reg. 27266 (May 16, 2001).  This statement maintains structural consistency with the federal regulations.

D)        It is a mixture of solid waste and one or more hazardous wastes listed in Subpart D and has not been excluded from this subsection (a)(2) pursuant to 35 Ill. Adm. Code 720.120 and 720.122 or subsection (g) or (h); however, the following mixtures of solid wastes and hazardous wastes listed in Subpart D are not hazardous wastes (except by application of subsection (a)(2)(A) or (a)(2)(B)) if the generator demonstrates that the mixture consists of wastewater the discharge of which is subject to regulation under either 35 Ill. Adm. Code 309 or 310 (including wastewater at facilities that have eliminated the discharge of wastewater) and the following is true of the waste:

i)          It is one or more of the following solvents listed in Section 721.131:  benzene, carbon tetrachloride, tetrachloroethylene, trichloroethylene or the scrubber waters derived from the combustion of these spent solvents, provided that the maximum total weekly usage of these solvents (other than the amounts that can be demonstrated not to be discharged to wastewater) divided by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pretreatment system does not exceed 1 part per million, or the total measured concentration of these solvents entering the headworks of the facility's wastewater treatment system (at a facility that is subject to regulation under the federal Clean Air Act new source performance standards or national emission standards for hazardous air pollutants of 40 CFR 60, 61, or 63 or at a facility that is subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions) does not exceed 1 part per million on an average weekly basis.  Any facility that uses benzene as a solvent and claims this exemption must use an aerated biological wastewater treatment system and must use only lined surface impoundments or tanks prior to secondary clarification in the wastewater treatment system.  A facility that chooses to measure concentration levels must file a copy of its sampling and analysis plan with the Agency.  A facility must file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility's operations.  The sampling and analysis plan must include the monitoring point location (headworks), the sampling frequency and methodology, and a list of constituents to be monitored.  A facility is eligible for the direct monitoring option once it receives confirmation that the sampling and analysis plan has been received by the Agency.  The Agency must reject the sampling and analysis plan if it determines that the sampling and analysis plan fails to include the information required by this subsection (a)(2)(D)(i) or that the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately.  If the Agency rejects the sampling and analysis plan, or if the Agency determines that the facility is not following the sampling and analysis plan, the Agency must notify the facility to cease the use of the direct monitoring option until such time as the bases for rejection are corrected;

ii)         It is one or more of the following spent solvents listed in Section 721.131:  methylene chloride, 1,1,1-trichloroethane, chlorobenzene, o-dichlorobenzene, cresols, cresylic acid, nitrobenzene, toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, spent chlorofluorocarbon solvents, 2-ethoxyethanol, or the scrubber waters derived-from the combustion of these spent solvents, provided that the maximum total weekly usage of these solvents (other than the amounts that can be demonstrated not to be discharged to wastewater) divided by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pretreatment system does not exceed 25 parts per million, or the total measured concentration of these solvents entering the headworks of the facility's wastewater treatment system (at a facility that is subject to regulation under the federal Clean Air Act new source performance standards or national emission standards for hazardous air pollutants of 40 CFR 60, 61, or 63 or at a facility that is subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions) does not exceed 25 parts per million on an average weekly basis.  A facility that chooses to measure concentration levels must file a copy of its sampling and analysis plan with the Agency.  A facility must file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility's operations.  The sampling and analysis plan must include the monitoring point location (headworks), the sampling frequency and methodology, and a list of constituents to be monitored.  A facility is eligible for the direct monitoring option once it receives confirmation that the sampling and analysis plan has been received by the Agency.  The Agency must reject the sampling and analysis plan if it determines that the sampling and analysis plan fails to include the information required by this subsection (a)(2)(D)(ii) or that the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately.  If the Agency rejects the sampling and analysis plan, or if the Agency determines that the facility is not following the sampling and analysis plan, the Agency must notify the facility to cease the use of the direct monitoring option until such time as the bases for rejection are corrected;

iii)        It is one of the following wastes listed in Section 721.132, provided that the wastes are discharged to the refinery oil recovery sewer before primary oil/water/solids separation:  heat exchanger bundle cleaning sludge from the petroleum refining industry (USEPA hazardous waste number K050), crude oil storage tank sediment from petroleum refining operations (USEPA hazardous waste number K169), clarified slurry oil tank sediment or in-line filter/separation solids from petroleum refining operations (USEPA hazardous waste number K170), spent hydrotreating catalyst (USEPA hazardous waste number K171), and spent hydrorefining catalyst (USEPA hazardous waste number K172);

iv)        It is a discarded hazardous waste, commercial chemical product or chemical intermediate listed in Section 721.121, 721.132, or 721.133 arising from de minimis losses of these materials.  For purposes of this subsection (a)(2)(D)(iv), "de minimis" losses are inadvertent releases to a wastewater treatment system, including those from normal material handling operations (e.g., spills from the unloading or transfer of materials from bins or other containers, leaks from pipes, valves, or other devices used to transfer materials); minor leaks of process equipment, storage tanks, or containers; leaks from well-maintained pump packings and seals; sample purgings; relief device discharges; discharges from safety showers and rinsing and cleaning of personal safety equipment; and rinsate from empty containers or from containers that are rendered empty by that rinsing.  Any manufacturing facility that claims an exemption for de minimis quantities of a waste listed in Section 721.131 or 721.132, or any nonmanufacturing facility that claims an exemption for de minimis quantities of wastes listed in Subpart D, must either have eliminated the discharge of wastewaters or have included in its federal Clean Water Act (33 USC 1251 et seq.) permit application or wastewater pretreatment submission to the Agency or the wastewater pretreatment Control Authority pursuant to 35 Ill. Adm. Code 307 of the constituents for which each waste was listed (in Appendix G); and the constituents in Table T to 35 Ill. Adm. Code 728 for which each waste has a treatment standard (i.e., land disposal restriction constituents).  A facility is eligible to claim the exemption once the Agency or Control Authority has been notified of possible de minimis releases via the Clean Water Act permit application or the wastewater pretreatment submission.  A copy of the Clean Water Act permit application or the wastewater pretreatment submission must be placed in the facility's on-site files;

v)         It is wastewater resulting from laboratory operations containing toxic (T) wastes listed in Subpart D, provided that the annualized average flow of laboratory wastewater does not exceed one percent of total wastewater flow into the headworks of the facility's wastewater treatment or pretreatment system or provided that the wastes' combined annualized average concentration does not exceed one part per million in the headworks of the facility's wastewater treatment or pretreatment facility.  Toxic (T) wastes used in laboratories that are demonstrated not to be discharged to wastewater are not to be included in this calculation;

vi)        It is one or more of the following wastes listed in Section 721.132:  wastewaters from the production of carbamates and carbamoyl oximes (USEPA hazardous waste number K157), provided that the maximum weekly usage of formaldehyde, methyl chloride, methylene chloride, and triethylamine (including all amounts that cannot be demonstrated to be reacted in the process, destroyed through treatment, or recovered, i.e., what is discharged or volatilized) divided by the average weekly flow of process wastewater prior to any dilutions into the headworks of the facility's wastewater treatment system does not exceed a total of 5 parts per million by weight, or the total measured concentration of these chemicals entering the headworks of the facility's wastewater treatment system (at a facility that is subject to regulation under the federal Clean Air Act new source performance standards or national emission standards for hazardous air pollutants of 40 CFR 60, 61, or 63 or at a facility that is subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions) does not exceed 5 parts per million on an average weekly basis.  A facility that chooses to measure concentration levels must file a copy of its sampling and analysis plan with the Agency.  A facility must file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility's operations.  The sampling and analysis plan must include the monitoring point location (headworks), the sampling frequency and methodology, and a list of constituents to be monitored.  A facility is eligible for the direct monitoring option once it receives confirmation that the sampling and analysis plan has been received by the Agency.  The Agency must reject the sampling and analysis plan if it determines that the sampling and analysis plan fails to include the information required by this subsection (a)(2)(D)(vi) or that the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately.  If the Agency rejects the sampling and analysis plan, or if the Agency determines that the facility is not following the sampling and analysis plan, the Agency must notify the facility to cease the use of the direct monitoring option until such time as the bases for rejection are corrected; or

vii)       It is wastewater derived from the treatment of one or more of the following wastes listed in Section 721.132:  organic waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates) from the production of carbamates and carbamoyl oximes (USEPA hazardous waste number K156), provided that the maximum concentration of formaldehyde, methyl chloride, methylene chloride, and triethylamine prior to any dilutions into the headworks of the facility's wastewater treatment system does not exceed a total of 5 milligrams per liter, or the total measured concentration of these chemicals entering the headworks of the facility's wastewater treatment system (at a facility that is subject to regulation under the federal Clean Air Act new source performance standards or national emission standards for hazardous air pollutants of 40 CFR 60, 61, or 63 or at a facility that is subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions)  does not exceed 5 milligrams per liter on an average weekly basis.  A facility that chooses to measure concentration levels must file a copy of its sampling and analysis plan with the Agency.  A facility must file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility's operations.  The sampling and analysis plan must include the monitoring point location (headworks), the sampling frequency and methodology, and a list of constituents to be monitored.  A facility is eligible for the direct monitoring option once it receives confirmation that the sampling and analysis plan has been received by the Agency.  The Agency must reject the sampling and analysis plan if it determines that the sampling and analysis plan fails to include the information required by this subsection (a)(2)(D)(vii) or that the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately.  If the Agency rejects the sampling and analysis plan, or if the Agency determines that the facility is not following the sampling and analysis plan, the Agency must notify the facility to cease the use of the direct monitoring option until such time as the bases for rejection are corrected.

E)        Rebuttable presumption for used oil.  Used oil containing more than 1,000 ppm total halogens is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in Subpart D.  Persons may rebut this presumption by demonstrating that the used oil does not contain hazardous waste (for example, to show that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in Appendix H).

i)          The rebuttable presumption does not apply to a metalworking oil or fluid containing chlorinated paraffins if it is processed through a tolling arrangement, as described in 35 Ill. Adm. Code 739.124(c), to reclaim metalworking oils or fluids.  The presumption does apply to a metalworking oil or fluid if such an oil or fluid is recycled in any other manner, or disposed of.

ii)         The rebuttable presumption does not apply to a used oil contaminated with chlorofluorocarbons (CFCs) removed from refrigeration units where the CFCs are destined for reclamation.  The rebuttable presumption does apply to a used oil contaminated with CFCs that have been mixed with used oil from a source other than a refrigeration unit.

b)         A solid waste that is not excluded from regulation pursuant to subsection (a)(1) becomes a hazardous waste when any of the following events occur:

1)         In the case of a waste listed in Subpart D, when the waste first meets the listing description set forth in Subpart D.

2)         In the case of a mixture of solid waste and one or more listed hazardous wastes, when a hazardous waste listed in Subpart D is first added to the solid waste.

3)         In the case of any other waste (including a waste mixture), when the waste exhibits any of the characteristics identified in Subpart C.

c)         Unless and until it meets the criteria of subsection (e), a hazardous waste will remain a hazardous waste.

            BOARD NOTE: This subsection (c) corresponds with 40 CFR 261.3(c)(1) (2017). The Board has codified 40 CFR 261.3(c)(2) at subsection (e).

d)         Any solid waste described in subsection (e) is not a hazardous waste if it meets the following criteria:

1)         In the case of any solid waste, it does not exhibit any of the characteristics of hazardous waste identified in Subpart C.  (However, wastes that exhibit a characteristic at the point of generation may still be subject to 35 Ill. Adm. Code 728, even if they no longer exhibit a characteristic at the point of land disposal.)

2)         In the case of a waste that is a listed waste pursuant to Subpart D , a waste that contains a waste listed pursuant to Subpart D, or a waste that is derived from a waste listed in Subpart D, it also has been excluded from subsection (e) pursuant to 35 Ill. Adm. Code 720.120 and 720.122.

e)         Specific Inclusions and Exclusions

1)         Except as otherwise provided in subsection (e)(2), (g), or (h), any solid waste generated from the treatment, storage, or disposal of a hazardous waste, including any sludge, spill residue, ash, emission control dust, or leachate (but not including precipitation run-off), is a hazardous waste.  (However, materials that are reclaimed from solid wastes and that are used beneficially are not solid wastes and hence are not hazardous wastes under this provision unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal.)

2)         The following solid wastes are not hazardous even though they are generated from the treatment, storage, or disposal of a hazardous waste, unless they exhibit one or more of the characteristics of hazardous waste:

A)        Waste pickle liquor sludge generated by lime stabilization of spent pickle liquor from the iron and steel industry (SIC Codes 331 and 332).

B)        Wastes from burning any of the materials exempted from regulation by Section 721.106(a)(3)(C) and (a)(3)(D).

C)        Nonwastewater residues, such as slag, resulting from high temperature metal recovery (HTMR) processing of K061, K062, or F006 waste in the units identified in this subsection (e)(2) that are disposed of in non-hazardous waste units, provided that these residues meet the generic exclusion levels identified in the tables in this subsection (e)(2)(C) for all constituents and the residues exhibit no characteristics of hazardous waste.  The types of units identified are rotary kilns, flame reactors, electric furnaces, plasma arc furnaces, slag reactors, rotary hearth furnace/electric furnace combinations, or the following types of industrial furnaces (as defined in 35 Ill. Adm. Code 720.110): blast furnaces; smelting, melting, and refining furnaces (including pyrometallurgical devices such as cupolas, reverberator furnaces, sintering machines, roasters, and foundry furnaces); and other furnaces designated by the Agency pursuant to that definition.

i)          Testing requirements must be incorporated in a facility's waste analysis plan or a generator's self-implementing waste analysis plan; at a minimum, composite samples of residues must be collected and analyzed quarterly and when the process or operation generating the waste changes.

ii)         Persons claiming this exclusion in an enforcement action will have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements.  The generic exclusion levels are the following:

iii)        A one-time notification and certification must be placed in the facility's files and sent to the Agency (or, for out-of-State shipments, to the appropriate Regional Administrator of USEPA or the state agency authorized to implement federal 40 CFR 268 requirements) for K061, K062, or F006 HTMR residues that meet the generic exclusion levels for all constituents, which do not exhibit any characteristics, and which are sent to RCRA Subtitle D (municipal solid waste landfill) units.  The notification and certification that is placed in the generator's or treater's files must be updated if the process or operation generating the waste changes or if the RCRA Subtitle D unit receiving the waste changes.  However, the generator or treater need only notify the Agency on an annual basis if such changes occur.  Such notification and certification should be sent to the Agency by the end of the calendar year, but no later than December 31.  The notification must include the following information: the name and address of the non-hazardous waste management unit receiving the waste shipment; the USEPA hazardous waste number and treatability group at the initial point of generation; and the treatment standards applicable to the waste at the initial point of generation.  The certification must be signed by an authorized representative and must state as follows:

"I certify under penalty of law that the generic exclusion levels for all constituents have been met without impermissible dilution and that no characteristic of hazardous waste is exhibited.  I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment."

D)        Biological treatment sludge from the treatment of one of the following wastes listed in Section 721.132:  organic waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates) from the production of carbamates and carbamoyl oximes (USEPA hazardous waste number K156) and wastewaters from the production of carbamates and carbamoyl oximes (USEPA hazardous waste number K157).

E)        Catalyst inert support media separated from one of the following wastes listed in Section 721.132: spent hydrotreating catalyst (USEPA hazardous waste number K171) and spent hydrorefining catalyst (USEPA hazardous waste number K172).

BOARD NOTE:  This subsection (e) would normally correspond with 40 CFR 261.3(e), a subsection that has been deleted and marked "reserved" by USEPA.  Rather, this subsection (e) corresponds with 40 CFR 261.3(c)(2), which the Board codified here to comport with codification requirements and to enhance clarity.

f)         Notwithstanding subsections (a) through (e) and provided the debris, as defined in 35 Ill. Adm. Code 728.102, does not exhibit a characteristic identified at Subpart C, the following materials are not subject to  regulation under 35 Ill. Adm. Code 702, 703, 720, 721 to 726, or 728:

1)         Hazardous debris as defined in 35 Ill. Adm. Code 728.102 that has been treated using one of the required extraction or destruction technologies specified in Table F to 35 Ill. Adm. Code 728; persons claiming this exclusion in an enforcement action will have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements; or

2)         Debris, as defined in 35 Ill. Adm. Code 728.102, that the Agency, considering the extent of contamination, has determined is no longer contaminated with hazardous waste.

g)         Exclusion of certain wastes listed in Subpart D solely because they exhibit a characteristic of ignitability, corrosivity, or reactivity.

1)         A hazardous waste that is listed in Subpart D solely because it exhibits one or more characteristics of ignitability, as defined under Section 721.121; corrosivity, as defined under Section 721.122; or reactivity, as defined under Section 721.123 is not a hazardous waste if the waste no longer exhibits any characteristic of hazardous waste identified in Subpart C.

2)         The exclusion described in subsection (g)(1) also pertains to the following:

A)        Any mixture of a solid waste and a hazardous waste listed in Subpart D solely because it exhibits the characteristics of ignitability, corrosivity, or reactivity, as regulated under subsection (a)(2)(D); and

B)        Any solid waste generated from treating, storing, or disposing of a hazardous waste listed in Subpart D solely because it exhibits the characteristics of ignitability, corrosivity, or reactivity, as regulated under subsection (e)(1).

3)         Wastes excluded pursuant to this subsection (g) are subject to 35 Ill. Adm. Code 728 (as applicable), even if they no longer exhibit a characteristic at the point of land disposal.

4)         Any mixture of a solid waste excluded from regulation in Section 721.104(b)(7) and a hazardous waste listed in Subpart D solely because the listed hazardous waste exhibits one or more of the characteristics of ignitability, corrosivity, or reactivity, as regulated under subsection (a)(2)(D), is not a hazardous waste if the mixture no longer exhibits any characteristic of hazardous waste identified in Subpart C for which USEPA listed the hazardous waste listed in Subpart D.

h)         Eligible Radioactive Mixed Waste

1)         Hazardous waste containing radioactive waste is no longer a hazardous waste when it meets the eligibility criteria and conditions of Subpart N of 35 Ill. Adm. Code 726 (i.e., it is "eligible radioactive mixed waste").

2)         The exemption described in subsection (h)(1) also pertains to the following:

A)        Any mixture of a solid waste and an eligible radioactive mixed waste; and

B)        Any solid waste generated from treating, storing, or disposing of an eligible radioactive mixed waste.

3)         Waste exempted pursuant to this subsection (h) must meet the eligibility criteria and specified conditions in 35 Ill. Adm. Code 726.325 and 726.330 (for storage and treatment) and in 35 Ill. Adm. Code 726.410 and 726.415 (for transportation and disposal).  Waste that fails to satisfy these eligibility criteria and conditions is regulated as hazardous waste.

(Source:  Amended at 42 Ill. Reg. 21673, effective November 19, 2018)