| (iii) accumulated, stored, or processed (but not recycled)
before or in lieu of being abandoned by being disposed of, burned,
or incinerated.
(D) Except for materials described in subparagraph
(H) of this paragraph, materials are solid wastes if they are "recycled"
or accumulated, stored, or processed before recycling as specified
in this subparagraph. The chart referred to as Table 1 indicates only
which materials are considered to be solid wastes when they are recycled
and is not intended to supersede the definition of solid waste provided
in subparagraph (A) of this paragraph.
(i) Used in a manner constituting disposal. Materials
noted with an asterisk in Column 1 of Table 1 are solid wastes when
they are:
(I) applied to or placed on the land in a manner that
constitutes disposal; or
(II) used to produce products that are applied to or
placed on the land or are otherwise contained in products that are
applied to or placed on the land (in which cases the product itself
remains a solid waste). However, commercial chemical products listed
in 40 CFR §261.33 are not solid wastes if they are applied to
the land and that is their ordinary manner of use.
(ii) Burning for energy recovery. Materials noted with
an asterisk in Column 2 of Table 1 are solid wastes when they are:
(I) burned to recover energy; or
(II) used to produce a fuel or are otherwise contained
in fuels (in which cases the fuel itself remains a solid waste). However,
commercial chemical products, which are listed in 40 CFR §261.33,
not listed in §261.33, but that exhibit one or more of the hazardous
waste characteristics, or will be considered nonhazardous waste if
disposed, are not solid wastes if they are fuels themselves and burned
for energy recovery.
(iii) Reclaimed. Materials noted with an asterisk in
Column 3 of Table 1 are solid wastes when reclaimed (except as provided
under 40 CFR §261.4(a)(17)). Materials without an asterisk in
Column 3 of Table 1 are not solid wastes when reclaimed.
(iv) Accumulated speculatively. Materials noted with
an asterisk in Column 4 of Table 1 are solid wastes when accumulated
speculatively.
Attached Graphic
(E) Materials that are identified by the administrator
of the EPA as inherently waste-like materials under 40 CFR §261.2(d)
are solid wastes when they are recycled in any manner.
(F) 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;
(ii) used or reused as effective substitutes for commercial
products;
(iii) returned to the original process from which they
were 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. In cases where the materials are generated
and reclaimed within the primary mineral processing industry, the
conditions of the exclusion found at 40 CFR §261.4(a)(17) apply
rather than this provision; or
(iv) secondary materials that are reclaimed and returned
to the original process or processes in which they were generated
where they are reused in the production process provided:
(I) only tank storage is involved, and the entire process
through completion of reclamation is closed by being entirely connected
with pipes or other comparable enclosed means of conveyance;
(II) reclamation does not involve controlled flame
combustion (such as occurs in boilers, industrial furnaces, or incinerators);
(III) the secondary materials are never accumulated
in such tanks for over 12 months without being reclaimed; and
(IV) the reclaimed material is not used to produce
a fuel, or used to produce products that are used in a manner constituting
disposal.
(G) Except for materials described in subparagraph
(H) of this paragraph, the following materials are solid wastes, even
if the recycling involves use, reuse, or return to the original process,
as described in subparagraph (F) of this paragraph:
(i) materials used in a manner constituting disposal,
or used to produce products that are applied to the land;
(ii) materials burned for energy recovery, used to
produce a fuel, or contained in fuels;
(iii) materials accumulated speculatively; or
(iv) materials deemed to be inherently waste-like by
the administrator of the EPA, as described in 40 CFR §261.2(d)(1)
and (2).
(H) With the exception of contaminated soils which
are being relocated for use under §350.36 of this title (relating
to Relocation of Soils Containing Chemicals of Concern for Reuse Purposes)
and other contaminated media, materials that will otherwise be identified
as nonhazardous solid wastes if disposed of are not considered solid
wastes when recycled by being applied to the land or used as ingredients
in products that are applied to the land, provided these materials
can be shown to meet all of the following criteria:
(i) a legitimate market exists for the recycling material
as well as its products;
(ii) the recycling material is managed and protected
from loss as will be raw materials or ingredients or products;
(iii) the quality of the product is not degraded by
substitution of raw material/product with the recycling material;
(iv) the use of the recycling material is an ordinary
use and it meets or exceeds the specifications of the product it is
replacing without treatment or reclamation, or if the recycling material
is not replacing a product, the recycling material is a legitimate
ingredient in a production process and meets or exceeds raw material
specifications without treatment or reclamation;
(v) the recycling material is not burned for energy
recovery, used to produce a fuel, or contained in a fuel;
(vi) the recycling material can be used as a product
itself or to produce products as it is generated without treatment
or reclamation;
(vii) the recycling material must not present an increased
risk to human health, the environment, or waters in the state when
applied to the land or used in products which are applied to the land
and the material, as generated:
(I) is a Class 3 waste under Subchapter R of this chapter
(relating to Waste Classification), except for arsenic, cadmium, chromium,
lead, mercury, nickel, selenium, and total dissolved solids; and
(II) for the metals listed in subclause (I) of this
clause:
(-a-) is a Class 2 or Class 3 waste under Subchapter
R of this chapter; and
(-b-) does not exceed a concentration limit under §312.43(b)(3),
Table 3 of this title (relating to Metal Limits); and
(viii) with the exception of the requirements under
§335.17(a)(8) of this title (relating to Special Definitions
for Recyclable Materials and Nonhazardous Recyclable Materials):
(I) at least 75% (by weight or volume) of the annual
production of the recycling material must be recycled or transferred
to a different site and recycled on an annual basis; and
(II) if the recycling material is placed in protective
storage, such as a silo or other protective enclosure, at least 75%
(by weight or volume) of the annual production of the recycling material
must be recycled or transferred to a different site and recycled on
a biennial basis.
(I) Respondents in actions to enforce the industrial
solid waste regulations 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 and that
the recycling activity is legitimate and beneficial.
(J) Materials that are reclaimed from solid wastes
and that are used beneficially are not solid wastes and hence are
not hazardous wastes under 40 CFR §261.3(c) unless the reclaimed
material is burned for energy recovery or used in a manner constituting
disposal.
Cont'd... |
