Current through September 18, 2024
Authority: IC 13-14-8; IC 13-22-2
Affected: IC 13-22
Sec. 5.
(a) A
secondary material that causes no significant increase in the threat posed to
human health or the environment as defined in subsection (e)(4) is not a solid
waste if it:
(1) does not meet the definition
of solid waste under
40 CFR
261.2 *; or
(2) is legitimately utilized as defined under
329 IAC
3.1-4-25.1 in an industrial process, except
reclamation as defined under
329 IAC
3.1-4-21.1.
(b) A secondary material generated as a
result of the utilization of a secondary material that does not qualify as an
exempt secondary material is a solid waste and subject to a waste determination
on the waste's status as a hazardous waste as follows:
(1) The waste determination must be conducted
according to the requirements of
40 CFR
262.11 *.
(2) In the case of a secondary material that
is listed under this rule, a solid waste generated from the utilization of a
secondary material in accordance with this section does not retain the listing
from which the secondary material is derived.
(c) A permit under this article is not
required for the use of a secondary material as a manufacturing ingredient when
used as a legitimate manufacturing ingredient in accordance with the
requirements of this section.
(d)
The commissioner shall:
(1) provide a written
determination for recognition of the secondary material exemption upon request;
and
(2) respond no later than
ninety (90) days after the request is received.
(e) In making a determination on legitimate
use of secondary materials, the following criteria must be considered, when
relevant, for determining legitimate use and exempt status:
(1) The secondary material must be utilized
in the manufacturing process without intervening reclamation or
recovery.
(2) Transportation must
be directly between the generator of the secondary material and the user of the
secondary material.
(3) The
secondary material or the resultant product, or both, must not be accumulated
speculatively as defined at
40 CFR
261.1(c)(8) *.
(4) The secondary material must be handled in
a manner that poses no significant increase in the threat to human health or
the environment beyond that posed by the use of the raw material being
replaced. This may be demonstrated by showing the secondary material is handled
in a manner that:
(A) is consistent with the
raw materials being replaced; and
(B) guards against loss or release during
storage.
(5) The
manufacturing process cannot be a reclamation activity. In evaluating this
factor, the commissioner shall use the definition of reclamation in
329 IAC
3.1-4-21.1 to distinguish between reclamation and
other manufacturing processes.
(6)
The secondary material must be a legitimate ingredient necessary to the
production process or product. This may be demonstrated by showing any of the
following:
(A) The secondary material is
effective in the manufacturing process.
(B) The secondary material is used under
controlled conditions.
(C) The user
documents and can show through records how, when, and in what volumes the
secondary material is used.
(D) In
two-party transactions, there is consideration, usually monetary, reflecting
the value of the secondary material to the user.
(E) There are written specifications for the
incoming material and the product.
(F) There is a program in place by which the
user verifies that incoming materials meet established
specifications.
(7) The
person must demonstrate that there is a market for the product. This may be
demonstrated by showing any of the following:
(A) Industry-recognized quality
specifications for the product.
(B)
Any recognitions of the product as a commodity.
(C) Contracts for purchase of the product or
other agreements.
(f) The product cannot be burned for energy
recovery or used in a manner constituting disposal unless the secondary
material is a fuel or originally intended to be used in a manner involving
placement on the land.
*These documents are incorporated by reference. Copies may
be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the
Indiana Department of Environmental Management, Office of Legal Counsel,
Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor,
Indianapolis, Indiana 46204.
