An industrial solid waste is a Class 3 waste if it is inert and essentially insoluble, and poses no threat to human health and/or the environment. Class 3 wastes include, but are not limited to, materials such as rock, brick, glass, dirt, and certain plastics and rubber, which are not readily decomposable. An industrial solid waste is a Class 3 waste if it:
  (1) is not a hazardous waste pursuant to §335.504 of this title (relating to Hazardous Waste Determination);
  (2) does not meet any of the Class 1 waste criteria set forth in §335.505 of this title (relating to Class 1 Waste Determination); and
  (3) is inert. Inertness refers to chemical inactivity of an element, compound, or a waste. Ingredients added to mixtures chiefly for bulk and/or weight purposes are normally considered inert; and
  (4) is essentially insoluble.
    (A) Essential insolubility is established:
      (i) when, using the test methods specified in §335.521(d) of this title (relating to Appendix 4 (Seven-Day Distilled Water Leachate Test)), the extract(s) from the representative sampling of the waste does not leach greater than the Maximum Contaminant Levels listed in §335.521(a)(3) of this title (relating to Appendix 1, Table 3); and
      (ii) using the test methods described in 40 Code of Federal Regulations Part 261, Appendix II, or equivalent methods approved by the executive director under the procedures set forth in §335.509 of this title (relating to Waste Analysis), the extract(s) from the representative sampling of the waste does not exhibit detectable levels of constituents found in §335.521(a)(1) of this title (relating to Appendix 1, Table 1) including constituents in §335.521(a)(3) of this title which are marked with an asterisk. This excludes the constituents listed in §335.521(a)(3) of this title which were addressed in clause (i) of this subparagraph; and
      (iii) when using an appropriate test method, representative sampling of the waste does not exhibit detectable levels of total petroleum hydrocarbon (TPH). "Petroleum substance wastes" as defined in §334.481 of this title (relating to Definitions) are not subject to this subsection; and
      (iv) when, using an appropriate test method, representative sampling of the waste does not exhibit detectable levels of polychlorinated biphenyls (PCBs).
    (B) Subparagraph (A) of this paragraph does not apply to naturally occurring material, i.e., soil, rock, etc., if the generator can demonstrate that the levels present in the waste are naturally occurring in the background of that particular material.
    (C) If the detection level submitted by the generator is challenged by the executive director or the commission, and for other enforcement purposes, the burden is on the generator to demonstrate that the detection level was reasonable for the material in question and for the technology in use at the time the waste was classified.

Source Note: The provisions of this §335.507 adopted to be effective November 27, 1992, 17 TexReg 8010; amended to be effective February 24, 1994, 19 TexReg 1042; amended to be effective May 30, 1995, 20 TexReg 3722; amended to be effective November 15, 2001, 26 TexReg 9135