40 C.F.R. § 261.11

Criteria for listing hazardous waste

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

(1) It exhibits any of the characteristics of hazardous waste identified in subpart C.

(2) It 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 these criteria will be designated Acute Hazardous Waste.)

(3) It contains any of the toxic constituents listed in appendix VIII and, after considering the following factors, the Administrator 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:

(i) The nature of the toxicity presented by the constituent.

(ii) The concentration of the constituent in the waste.

(iii) 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 paragraph (a)(3)(vii) of this section.

(iv) The persistence of the constituent or any toxic degradation product of the constituent.

(v) The potential for the constituent or any toxic degradation product of the constituent to degrade into non-harmful constituents and the rate of degradation.

(vi) The degree to which the constituent or any degradation product of the constituent bioaccumulates in ecosystems.

(vii) The plausible types of improper management to which the waste could be subjected.

(viii) The quantities of the waste generated at individual generation sites or on a regional or national basis.

(ix) 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.

(x) Action taken by other governmental agencies or regulatory programs based on the health or environmental hazard posed by the waste or waste constituent.

(xi) Such other factors as may be appropriate.

Substances will be listed on appendix VIII only if they have been shown in scientific studies to have toxic, carcinogenic, mutagenic or teratogenic effects on humans or other life forms.

(Wastes listed in accordance with these criteria will be designated Toxic wastes.)

(b) The Administrator may list classes or types of solid waste as hazardous waste if he 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 section 1004(5) of the Act.

[45 FR 33119, May 19, 1980, as amended at 55 FR 18726, May 4, 1990; 57 FR 14, Jan. 2, 1992; 88 FR 54100, Aug. 9, 2023]

Notes of Decisions

Cited in 21 cases (1 in the last 5 years), 1981–2023 · leading case: Nat. Resources Def. Council, Inc. v. United States Env't Prot. Agency, Edison Elec. Inst., Intervenors, 25 F.3d 1063 (D.C. Cir. 1994).

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Nat. Resources Def. Council, Inc. v. United States Env't Prot. Agency, Edison Elec. Inst., Intervenors, 25 F.3d 1063 (D.C. Cir. 1994). · cites it 17× “The agency evaluated used oil under its technical listing criteria, 40 C.F.R. § 261.11 , and concluded that used oils destined for disposal need not be listed as a hazardous waste because the panoply of existing federal regulations governing the management of used oil, id.”

Dithiocarbamate Task Force v. Env't Prot. Agency, Uniroyal Chem. Co., Inc., & Zeneca, Inc., Intervenors, 98 F.3d 1394 (D.C. Cir. 1996). · cites it 8× “Identification and Listing of Hazardous Waste, 40 CFR § 261.11 (a)(3) (1995) (bracketed material added).”

Sierra Club v. Env't Prot. Agency, 292 F.3d 895 (D.C. Cir. 2002). “40 C.F.R. §§ 261.11 (a)(l-3). The last criterion entails a risk assessment in order to determine whether the constituent is in fact “capable of posing a substantial present or potential hazard to human health or the environment.”

Am. Petroleum Inst.,petitioners v. United States Env't Prot. Agency, Chem. Mfrs. Ass'n, Intervenor, 216 F.3d 50 (D.C. Cir. 2000). · cites it 3× “§ 6903 (5)(B); 40 C.F.R. § 261.11 (a)(3) (emphasis added), and thus were improperly listed as “hazardous waste.”

Util. Solid Waste Activities Grp. v. Envtl. Prot. Agency, 901 F.3d 414 (D.C. Cir. 2018). “§ 6921 ; 40 C.F.R. §§ 261.11 , 261.20 - 261.24. Under Subtitle C, the EPA directly regulates all stages of production and disposition of hazardous wastes, and has administrative enforcement power as well as authority to initiate or recommend civil and criminal actions in court.”

United States v. Conservation Chem. Co., 619 F. Supp. 162 (W.D. Mo. 1985). “” 40 C.F.R. § 261.11 . Thus, such substances satisfy the definition of “hazardous wastes” under 42 U.”

Shell Oil Co. v. Env't Prot. Agency, 950 F.2d 741 (D.C. Cir. 1992). “33,121 ( 40 C.F.R. § 261.11 (a)(lH3)). The final rules, moreover, provide for de-listing by formal notice and comment rule-making rather than by the more informal procedure using defined thresholds that was initially proposed by the EPA.”

United States v. Price, 523 F. Supp. 1055 (D.N.J. 1981). “regulations, 40 C.F.R. §§ 261.11 , 261.33 and Appendix VIII, and are contaminants within the meaning of 42 U.”

Military Toxics Proj. v. Env't Prot. Agency, 146 F.3d 948 (D.C. Cir. 1998). “Noting that one such factor is “[a]ction taken by other governmental agencies or regulatory programs” to control any hazard posed by the substance, 40 C.F.R. § 261.11 (a)(3)(x), we said: To accept petitioners’ proposition that EPA may not rationally rely on other federal…”

Appalachian Voices v. McCarthy, 989 F. Supp. 2d 30 (D.D.C. 2013). “40 C.F.R. §§ 261.11 (a)(1), 261.20-24 (2012).”

Connecticut Coastal Fishermen's Ass'n v. Remington Arms Co., 777 F. Supp. 173 (D. Conn. 1991). “The Court noted: “The agency determined that material placed in wastewater treatment surface im-poundments where it 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…”

United States v. Clow Water Sys., a Div. Of Mcwane, Inc., 701 F. Supp. 1345 (S.D. Ohio 1988). · cites it 2× “40 C.F.R. § 261.11 (a). Substances detected in Clow’s monitoring wells, including arsenic, phenol, cyanide, benzene, Bis (2-ethylhexyl) phthalate, lead and cadmium, are included in Appendix VIII.”

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