Current through Register Vol. 24-06, March 15, 2024
(1) The purpose of this section is to
identify those materials that are and are not solid wastes when recycled.
Certain materials, as described in subsection (2) of this section, would not
typically be considered to involve waste management and are exempt from the
requirements of this chapter. All recycling processes not exempted by
subsection (2) of this section are subject to the recycling requirements of WAC
173-303-120.
(2) General categories of materials that are
not solid waste when recycled.
(a) Except as
provided in subsection (3) of this section, materials are not solid wastes when
they can be shown to be recycled by being:
(i)
Used or reused as ingredients in an industrial process to make a product
provided the materials are not being reclaimed; or
(ii) Used or reused as effective substitutes
for commercial products; or
(iii)
Returned to the original process from which they are generated, without first
being reclaimed or land disposed. The material must be returned as a substitute
for feedstock materials. In cases where the original process to which the
material is returned is a secondary process, the materials must be managed such
that there is no placement on the land.
(b) Except as provided in subsection (3) of
this section, the department has determined that the following materials when
used as described are not solid wastes:
(i)
Pulping liquors (e.g., black liquor) that are reclaimed in a pulping liquor
recovery furnace and then reused in the pulping process;
(ii) Spent pickle liquor which is reused in
wastewater treatment at a facility holding a national pollutant discharge
elimination system (NPDES) permit, or which is being accumulated, stored, or
treated before such reuse;
(iii)
Spent sulfuric acid used to produce virgin sulfuric acid provided it is not
accumulated speculatively as defined in WAC
173-303-016(5)(d)(ii).
(3) The following
materials are solid wastes, even if the recycling involves use, reuse, or
return to the original process (as described in subsection (2)(a) of this
section):
(a) Materials used in a manner
constituting disposal, or used to produce products that are applied to the
land; or
(b) Materials burned for
energy recovery, used to produce a fuel, or contained in fuels; or
(c) Materials accumulated speculatively as
defined in WAC
173-303-016(5)(d)(ii);
or
(d) Materials listed in WAC
173-303-016(6);
or
(e) Any materials that the
department determines are being accumulated, used, reused or handled in a
manner that poses a threat to public health or the environment.
(4) Documentation of claims that
materials are not solid wastes or are conditionally exempt from regulation.
Respondents in actions to enforce regulations implementing chapter 70.105 RCW
who raise a claim that a certain material is not a solid waste, or is
conditionally exempt from regulation, must demonstrate that there is a known
market or disposition for the material, and that they meet the terms of the
exclusion or exemption. In doing so, they must provide appropriate
documentation (such as contracts showing that a second person uses the material
as an ingredient in a production process) to demonstrate that the material is
not a waste, or is exempt from regulation. In addition, owners or operators of
facilities claiming that they actually are recycling materials must show that
they have the necessary equipment to do so.
(5) Variances from classification as a solid
waste.
(a) In accordance with the standards
and criteria in (b) of this subsection and the procedures in subsection (7) of
this section, the department may determine on a case-by-case basis that the
following recycled materials are not solid wastes:
(i) Materials that are accumulated
speculatively without sufficient amounts being recycled (as defined in WAC
173-303-016(5)(d)(ii)
);
(ii) Materials that are
reclaimed and then reused within the original production process in which they
were generated;
(iii) Materials
that have been reclaimed but must be reclaimed further before the materials are
completely recovered; and
(iv)
State-only dangerous materials (not regulated as hazardous wastes (defined in
WAC
173-303-040 ) by EPA)
which serve as an effective substitute for a commercial product or raw
material.
(b) Standards
and criteria for variances from classification as a solid waste.
(i) The department may grant requests for a
variance from classifying as a solid waste those materials that are accumulated
speculatively without sufficient amounts being recycled if the applicant
demonstrates that sufficient amounts of the material will be recycled or
transferred for recycling in the following year. If a variance is granted, it
is valid only for the following year, but can be renewed, on an annual basis,
by filing a new application. The department's decision will be based on the
following criteria:
(A) The manner in which
the material is expected to be recycled, when the material is expected to be
recycled, and whether this expected disposition is likely to occur (for
example, because of past practice, market factors, the nature of the material,
or contractual arrangements for recycling);
(B) The reason that the applicant has
accumulated the material for one or more years without recycling seventy-five
percent of the volume accumulated at the beginning of the year;
(C) The quantity of material already
accumulated and the quantity expected to be generated and accumulated before
the material is recycled;
(D) The
extent to which the material is handled to minimize loss;
(E) Other relevant factors.
(ii) The department may grant
requests for a variance from classifying as a solid waste those materials that
are reclaimed and then reused as feedstock within the original production
process in which the materials were generated if the reclamation operation is
an essential part of the production process. This determination will be based
on the following criteria:
(A) How
economically viable the production process would be if it were to use virgin
materials, rather than reclaimed materials;
(B) The extent to which the material is
handled before reclamation to minimize loss;
(C) The time periods between generating the
material and its reclamation, and between reclamation and return to the
original primary production process;
(D) The location of the reclamation operation
in relation to the production process;
(E) Whether the reclaimed material is used
for the purpose for which it was originally produced when it is returned to the
original process, and whether it is returned to the process in substantially
its original form;
(F) Whether the
person who generates the material also reclaims it;
(G) Other relevant factors.
(iii) The department may grant
requests for a variance from classifying as a solid waste those hazardous
secondary materials that have been partially reclaimed, but must be reclaimed
further before recovery is completed, if the partial reclamation has produced a
commodity-like material. A determination that a partially reclaimed hazardous
secondary material for which the variance is sought is commodity-like will be
based on whether the material is legitimately recycled as specified in WAC
173-303-019
and on whether all of the following decision criteria are satisfied:
(A) Whether the degree of partial reclamation
the material has undergone is substantial as demonstrated by using a partial
reclamation process other than the process that generated the dangerous
waste;
(B) Whether the partially
reclaimed material has sufficient economic value that it will be purchased for
further reclamation;
(C) Whether
the partially reclaimed material is a viable substitute for a product or
intermediate produced from virgin or raw materials which is used in subsequent
production steps;
(D) Whether there
is a market for the partially reclaimed material as demonstrated by known
customer(s) who are further reclaiming the material (e.g., records of sales
and/or contracts and evidence of subsequent use, such as bills of
lading);
(E) Whether the partially
reclaimed material is handled to minimize loss; and
(F) Other relevant factors.
(iv) The department may grant
requests for a variance from classifying as a solid waste those materials that
serve as an effective substitute for a commercial product or raw material, when
such material is not regulated as hazardous waste (defined in WAC
173-303-040 ) by EPA,
if the materials are recycled in a manner such that they more closely resemble
products or raw materials rather than wastes. This determination will be based
on the following factors:
(A) The
effectiveness of the material for the claimed use;
(B) The degree to which the material is like
an analogous raw material or product;
(C) The extent to which the material is
handled to minimize loss or escape to the environment;
(D) The extent to which an end market for the
reclaimed material is guaranteed;
(E) The time period between generating the
material and its recycling;
(F)
Other factors as appropriate.
(6) Variance to be classified as a boiler.
In accordance with the standards and criteria in WAC
173-303-040
(definition of "boiler"), and the procedures in subsection (7) of this section,
the department may determine on a case-by-case basis that certain enclosed
devices using controlled flame combustion are boilers, even though they do not
otherwise meet the definition of boiler contained in WAC
173-303-040, after
considering the following criteria:
(a) The extent to which the unit has
provisions for recovering and exporting thermal energy in the form of steam,
heated fluids, or heated gases; and
(b) The extent to which the combustion
chamber and energy recovery equipment are of integral design; and
(c) The efficiency of energy recovery,
calculated in terms of the recovered energy compared with the thermal value of
the fuel; and
(d) The extent to
which exported energy is utilized; and
(e) The extent to which the device is in
common and customary use as a "boiler" functioning primarily to produce steam,
heated fluids, or heated gases; and
(f) Other factors, as appropriate.
(7) Procedures for variances from
classification as a solid waste or to be classified as a boiler.
The department will use the following procedures in evaluating
applications for variances from classification as a solid waste or applications
to classify particular enclosed controlled flame combustion devices as
boilers:
(a) The applicant must apply
to the department for the variance. The application must address the relevant
criteria contained in subsection (5)(b) or (6) of this section, as applicable.
(b) The department will evaluate
the application and issue a draft public notice tentatively granting or denying
the application. Notification of this tentative decision will be provided by
newspaper advertisement and radio broadcast in the locality where the recycler
is located. The department will accept comment on the tentative decision for
thirty days, and may also hold a public hearing upon request or at its
discretion. The department will issue a final decision after receipt of
comments and after the hearing (if any).
(c) In the event of a change in circumstances
that affect how a material meets the relevant criteria contained in subsection
(5) or (6) of this section, as applicable, upon which a variance has been
based, the applicant must send a description of the change in circumstances to
the department. The department may issue a determination that the material
continues to meet the relevant criteria of the variance or may require the
facility to reapply for the variance.
(d) Variances shall be effective for a fixed
term not to exceed ten years. No later than six months prior to the end of this
term, facilities must reapply for a variance. If a facility reapplies for a
variance within six months, the facility may continue to operate under an
expired variance until receiving a decision on their reapplication from the
department.
(e) Facilities
receiving a variance must provide notification as required by subsection (8) of
this section.
(8)
Notification requirements for materials managed under variances from
classification as a solid waste.
(a)
Facilities managing hazardous secondary materials under WAC 173-303-017(5) must
send a notification prior to operating under the regulatory provision and by
March 1st of each even-numbered year thereafter to the department using
ecology's Dangerous Waste Site Identification Form that includes the following
information:
(i) The name, address, and
EPA/state identification number (if applicable) of the facility;
(ii) The name and telephone number of a
contact person;
(iii) The NAICS
code of the facility;
(iv) The
regulation under which the hazardous secondary materials will be
managed;
(v) When the facility
began or expects to begin managing the hazardous secondary materials in
accordance with the regulation;
(vi) A list of hazardous secondary materials
that will be managed according to the regulation (reported as the dangerous
waste numbers that would apply if the hazardous secondary materials were
managed as dangerous wastes);
(vii)
The quantity of each hazardous secondary material to be managed annually;
and
(viii) The certification
(included in ecology's Dangerous Waste Site Identification Form) signed and
dated by an authorized representative of the facility.
(b) If a facility managing hazardous
secondary materials under this section has submitted a notification, but then
subsequently stops managing those materials in accordance with the
regulation(s) listed above, the facility must notify the department within
thirty days using ecology's Dangerous Waste Site Identification Form. For
purposes of this section, a facility has stopped managing hazardous secondary
materials under this section if the facility no longer generates, manages, or
reclaims materials under the regulation(s) above and does not expect to manage
any amount of hazardous secondary materials under this section for at least one
year.
Statutory Authority:
Chapters
70.105 and
70.105D RCW. 09-14-105 (Order
07-12), § 173-303-017, filed 6/30/09, effective 7/31/09; 98-03-018 (Order
97-03), § 173-303-017, filed 1/12/98, effective 2/12/98; 95-22-008 (Order
94-30), § 173-303-017, filed 10/19/95, effective 11/19/95. Statutory
Authority:
Chapters
70.105 and
70.105D RCW, 40 C.F.R. Part 271.3
and RCRA § 3006 ( 42 U.S.C. 3251 ). 91-07-005 (Order 90-42), §
173-303-017, filed 3/7/91, effective 4/7/91. Statutory Authority:
Chapter
70.105 RCW. 87-14-029
(Order DE-87-4), § 173-303-017, filed 6/26/87; 86-12-057 (Order DE-85-10),
§ 173-303-017, filed 6/3/86; 84-14-031 (Order DE 84-22), §
173-303-017, filed 6/27/84.