Current through August 26, 2024
(1) An applicant
may apply to the department for a formal determination that a hazardous
secondary material is not discarded and therefore not a solid waste. The
determinations will be based on the criteria contained in sub. (2) or (3), as
applicable. If an application is denied, the hazardous secondary material may
still be eligible for a solid waste variance or exclusion through one of the
solid waste variances under s.
NR 660.31. Determinations may also be granted by the
department if the department is authorized by the EPA for this provision or if
all the following conditions are met:
(a) The
department determines the hazardous secondary material meets the criteria in
sub. (2) or (3), as applicable.
(b)
The department requests that EPA review its determination.
(c) The EPA approves the department
determination.
(2) The
department may grant a non-waste determination for hazardous secondary material
that is reclaimed in a continuous industrial process if the applicant
demonstrates that the hazardous secondary material is a part of the production
process and is not discarded. The determination shall be based on whether the
hazardous secondary material is legitimately recycled as specified in s. NR 660.43 and on all of the following criteria:
(a) The management of the hazardous secondary
material is part of the continuous primary production process and is not waste
treatment.
(b) The capacity of the
production process will use the hazardous secondary material in a reasonable
time frame and will ensure that the hazardous secondary material will not be
abandoned. Examples of factors the department will use to determine capacity of
the production process to use the hazardous secondary material include past
production practices, market factors, the nature of the hazardous secondary
material, and any contractual arrangements.
(c) The hazardous constituents in the
hazardous secondary material are reclaimed rather than released into the air,
water, or land at significantly higher levels from either a statistical or
health and environmental risk perspective than would otherwise be released by
the production process.
(d) Other
relevant factors that demonstrate that the hazardous secondary material is not
discarded, including why the hazardous secondary material cannot meet, or
should not have to meet, the conditions of an exclusion under s. NR 661.0002 or 661.0004.
(3) The
department may grant a non-waste determination for hazardous secondary material
that is indistinguishable in all relevant aspects from a product or
intermediate if the applicant demonstrates that the hazardous secondary
material is comparable to a product or intermediate and is not discarded. The
determination will be based on whether the hazardous secondary material is
legitimately recycled as specified in s. NR 660.43 and on all of the following
criteria:
(a) Market participants treat the
hazardous secondary material as a product or intermediate rather than a waste.
Examples of factors that may be used to determine that the hazardous secondary
material is a product or intermediate rather than a waste include the current
positive value of the hazardous secondary material, stability of demand, or any
contractual arrangements.
(b) The
chemical and physical identity of the hazardous secondary material is
comparable to commercial products or intermediates.
(c) The capacity of the market would use the
hazardous secondary material in a reasonable time frame and ensure that the
hazardous secondary material will not be abandoned. Examples of factors used to
determine that a hazardous secondary material will not be abandoned include
past practices, market factors, the nature of the hazardous secondary material,
and any contractual arrangements.
(d) The hazardous constituents in the
hazardous secondary material are reclaimed rather than released into the air,
water or land at significantly higher levels from either a statistical or
health and environmental risk perspective than would otherwise be released by
the production process.
(e) Other
relevant factors that demonstrate that the hazardous secondary material is not
discarded, including why the hazardous secondary material cannot meet, or
should not have to meet, the conditions of an exclusion under s. NR 661.0002 or 661.0004.
