Reference OAR 340-102-0011 ‘Hazardous Waste Determination’
(1) The provisions of this rule replace the requirements of 40 C.F.R. Sec. 262.11.
(2) A person who generates a residue as defined in OAR 340-100-0010 must determine if that residue is a hazardous waste using the following method:
(a) Persons should first determine if the waste is excluded from regulation under 40 C.F.R. Sec. 261.4 or OAR 340-101-0004;
(b) Persons must then determine if the waste is listed as a hazardous waste in Subpart D of 40 C.F.R. Part 261;
(c) Persons must then determine if the waste is listed under the following listings:
(A) The commercial chemical products, manufacturing chemical intermediates, or off-specification commercial chemical products or manufacturing chemical intermediates identified in 340-102-0011(2)
(c)(A)(i) and (ii) are added to and made a part of the list in 40 C.F.R. Sec. 261.33(e).
(i) P998...Blister agents (such as Mustard agent)
(ii) P999…Nerve agents (such as GB (Sarin) and VX); or
(B) Hazardous waste identified in 340-102-0011(2)(c)(B)(i) and (ii) are added to and made a part of the list in 40 C.F.R. Sec. 261.31.
(i) F998…Residues from demilitarization, treatment, and testing of blister agents (such as Mustard agent).
(ii) F999…Residues from demilitarization, treatment, and testing of nerve agents (such as GB (Sarin) and VX).
NOTE: Even if the waste is listed, the person still has an opportunity under OAR 340-100-0022 to demonstrate to the Commission that the waste from their particular facility or operation is not a hazardous waste.
(d) Regardless of whether a hazardous waste is listed through application of subsections (2)(b) or (2)(c) of this rule, persons must also determine whether the waste is hazardous under Subpart C of 40 C.F.R. Part 261 by either:
(A) Testing the waste according to the methods set forth in Subpart C of 40 C.F.R. Part 261, or according to an equivalent method the Department approves under OAR 340-100-0021, or
NOTE: In most instances, the Department will not consider approving a test method until the EPA approves it.
(B) Applying knowledge of the hazard characteristic of the waste in light of the materials or the processes used.
(e) If the waste is determined to be hazardous, the person must refer to Divisions 100–106 and 40 C.F.R. Parts 264, 265, 268 and 273 for possible exclusions or restrictions pertaining to management of the specific waste.
NOTE: 40 C.F.R. Sec. 268.3 prohibits diluting a hazardous waste to meet Land Disposal Restriction treatment standards. Diluting waste without a permit to meet any hazardous waste standard is prohibited.
(f) If the waste is not identified as hazardous by application of subsection (2)(b) or (2)(c), and/or (2)(d) of this rule, persons must determine if the waste is listed under OAR 340-101-0033.
(3) A person who generates a residue, as defined in OAR 340-100-0010(2)(ee), must keep a copy of all documentation used or created in determining whether the residue is a hazardous waste, under section (2) of this rule, for a minimum of three years after the waste stream is no longer generated, or as prescribed in 40 C.F.R. Sec. 262.40(c). The person is not required to create new documentation if no documentation is created in making the waste stream determination.
Note: There are a number of state-only wastes that are not hazardous wastes and need not be reported on the annual reporting forms (e.g., X002 - PCBs).