(a) The executive director 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 executive director's decision will be based on the following criteria:
(1) 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);
(2) the reason that the applicant has accumulated the
material for one or more years without recycling 75% of the weight
or volume accumulated at the beginning of the year;
(3) the quantity of material already accumulated and
the quantity expected to be generated and accumulated before the material
is recycled;
(4) the extent to which the material is handled to
minimize loss; and
(5) other relevant factors.
(b) The executive director 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:
(1) how economically viable the production process
would be if it were to use virgin materials, rather than reclaimed
materials;
(2) the extent to which the material is handled before
reclamation to minimize loss;
(3) the time periods between generating the material
and its reclamation, and between reclamation and return to the original
primary production process;
(4) the location of the reclamation operation in relation
to the production process;
(5) 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;
(6) whether the person who generates the material also
reclaims it; and
(7) other relevant factors.
(c) The executive director 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
material for which the variance is sought is commodity-like material
will be based on whether the hazardous secondary material is legitimately
recycled as specified in §335.27 of this title (relating to Legitimate
Recycling of Hazardous Secondary Materials) and on whether all of
the following decision criteria are satisfied:
(1) 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 hazardous waste;
(2) whether the partially reclaimed material has sufficient
economic value that it will be purchased for further reclamation;
(3) 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;
(4) 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);
(5) whether the partially reclaimed material is handled
to minimize loss; and
(6) other relevant factors.
(d) Other portions of this chapter that relate to solid
wastes that are recycled include §335.1 of this title (relating
to Definitions), under the definition of "Solid waste," §335.6
of this title (relating to Notification Requirements), §335.17
of this title (relating to Special Definitions for Recyclable Materials
and Nonhazardous Recyclable Materials), §335.18 of this title
(relating to Non-Waste Determinations and Variances from Classification
as a Solid Waste), §335.20 of this title (relating to Variance
To Be Classified as a Boiler), §335.21 of this title (relating
to Procedures for Variances from Classification as a Solid Waste or
To Be Classified as a Boiler or for Non-Waste Determinations), §335.22
of this title (relating to Additional Regulation of Certain Hazardous
Waste Recycling Activities on a Case-by-Case Basis), §335.23
of this title (relating to Procedures for Case-by-Case Regulation
of Hazardous Waste Recycling Activities), §335.24 of this title
(relating to Requirements for Recyclable Materials and Nonhazardous
Recyclable Materials), Subchapter H of this chapter (relating to Standards
for the Management of Specific Wastes and Specific Types of Facilities),
and Subchapter V of this chapter (relating to Standards for Reclamation
of Hazardous Secondary Materials).
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Source Note: The provisions of this §335.19 adopted to be effective May 28, 1986, 11 TexReg 2335; amended to be effective March 1, 1996, 21 TexReg 1425; amended to be effective October 19, 1998, 23 TexReg 10878; amended to be effective February 21, 2013, 38 TexReg 978; amended to be effective June 16, 2016, 41 TexReg 4259; amended to be effective February 3, 2022, 47 TexReg 318 |