Mixture and Derived From Rules

Under RCRA's rule, if a listed hazardous waste is mixed with other material, the entire mixture assumes the status of the listed waste.** While RCRA requirements do not explicitly apply to nanoscale materials, there is no reason to believe that they do not Accordingly, if a listed hazardous waste is processed in a way that causes it to generate a sludge, spill residue, ash emission control dust, leachate, or other form of solid waste [48], then under the "derived-from rule," the resulting solid waste assumes the same listed waste code as the original listed hazardous waste

If a characteristic or listed hazardous waste is spilled into soil or another environmental medium, under the "contained-in" principle, the resulting mixture of soil and hazardous waste is deemed to "contain" the hazardous waste until it has been treated to a point where the soil no longer contains the hazardous waste .*** The EPA has not issued any guidance on whether, under the contained-in principle, the presence of a nanoscale material qualified as a listed hazardous waste would trigger application of the contained-in rule There is no reason to believe that nanoscale versions of listed hazardous wastes, mixtures of large amounts of solid wastes may become listed hazardous waste because they contain small amounts of nanoscale listed hazardous waste

The EPA included several exemptions from the definitions of both "solid waste" and "hazardous waste " These exclusions include, among others, household waste, certain fertilizers made from hazardous wastes, and other materials listed in 40 C . F. R . § 261 .4(a), as well as certain agricultural wastes returned to the soil as fertilizer. As

* Quantum nanodots typically often contain cadmium or selenium. The EPA has designated wastes yielding more than 1 . 0 milligrams per liter of cadmium or selenium through a TCLP extraction test as characteristically toxic upon disposal (i . e. , D006 or D010 waste) . EPA 40 C . F. R. § 261.24(b).

** EPA 40 C . F. R. § 261 . 3(a)(2)(iv). The mixture rule includes exemptions for (i) mixtures that include hazardous wastes listed solely as ignitable, corrosive, or reactive; and (ii) de minimis amounts of listed hazardous wastes mixed in permitted wastewater treatment systems . The mixture rule also applies to mixtures of characteristic hazardous wastes, but only if the resulting mixture still displays the original hazardous characteristic. EPA 40 C . F. R . § 261. 3(a)(2)(i) .

*** While the EPA has not promulgated the contained-in principle as a formal regulation for contaminated media, it has issued several guidances to outline its policy. See, e. g . , 63 Fed . Reg . 28622 (May 26, 1998); 61 Fed . Reg . 18795 (Apr. 29, 1996) . The U . S. Circuit Court of Appeals for the D. C . Circuit has upheld the EPA's application of the contained-in policy. Chemical Waste Management v. EPA, 869 F. 2d 1526 (D .C . Cir. 1989). The EPA has also codified the contained-in principle in its rules for debris management nanoscale materials become more prevalent in consumer products, one can expect increasing questions regarding the prudence of these exemptions [49] .

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