128 Neb. Admin. Code, ch. 5, § 001

Current through September 17, 2024

Section 128-5-001 - Non-waste determinations and variances from classification as a solid waste

001.01 In accordance with the standards and criteria in Sections 001.02 and 004 and the procedures in Section 003 of this Chapter, the Director may determine on a case-by-case basis that the following recycled materials are not solid wastes:

001.01A Materials that are accumulated speculatively without sufficient amounts being recycled (as defined in Chapter 2, 002.07);

001.01B Materials that are reclaimed and then reused within the original production process in which they were generated;

001.01C Materials that have been reclaimed but must be reclaimed further before the materials are completely recovered.

001.01D Hazardous secondary materials that are reclaimed in a continuous industrial process; and

001.01E Hazardous secondary materials that are indistinguishable in all relevant aspects from a product or intermediate.

001.01F Hazardous secondary materials that are transferred for reclamation under Chapter 2, Section 008.26 and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards.

001.02 Standards and criteria for variance from classification as a solid waste.

001.02A The 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 Director's decision will be based on the following criteria:

001.02A1 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);

001.02A2 The reason that the applicant has accumulated the material for one or more years without recycling 75 percent of the volume accumulated at the beginning of the year;

001.02A3 The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled;

001.02A4 The extent to which the material is handled to minimize loss; and

001.02A5 Other relevant factors.

001.03 The 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 primary 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:

001.03A How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;

001.03B The prevalence of the practice on an industry-wide basis;

001.03C The extent to which the material is handled before reclamation to minimize loss;

001.03D The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;

001.03E The location of the reclamation operation in relation to the production process;

001.03F 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;

001.03G Whether the person who generates the material also reclaims it; and

001.03H Other relevant factors.

001.04 The 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 will be based on whether the hazardous secondary material is legitimately recycled as specified in Section 009 of this Chapter and on whether all of the following decision criteria are satisfied:

001.04A 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;

001.04B Whether the partially-reclaimed material has sufficient economic value that it will be purchased for further reclamation;

001.04C 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;

001.04D 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);

001.04E Whether the partially-reclaimed material is handled to minimize loss.

001.05 The Director may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that are transferred for reclamation under Chapter 2, Section 008.26 and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards. The Director's decision will be based on the following criteria:

001.05A The reclamation facility or intermediate facility must demonstrate that the reclamation process for the hazardous secondary materials is legitimate pursuant to Section 009 of this Chapter;

001.05B The reclamation facility or intermediate facility must satisfy the financial assurance condition in 40 CFR § 261.4(a)(24)(vi)(F), as adopted and incorporated by reference in Chapter 2, Section 008.26 of this Title;

001.05C The reclamation facility or intermediate facility must not be subject to a formal enforcement action in the previous three years and not be classified as a significant non-complier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly. Credible evidence may include a demonstration that the facility has taken remedial steps to address the violations and prevent future violations, or that the violations are not relevant to the proper management of the hazardous secondary materials;

001.05D The intermediate or reclamation facility must have the equipment and trained personnel needed to safely manage the hazardous secondary material and must meet emergency preparedness and response requirements under 40 CFR part 261 subpart M, as adopted and incorporated by reference in Chapter 3, Section 025 of this Title;

001.05E If residuals are generated from the reclamation of the excluded hazardous secondary materials, the reclamation facility must have the permits required (if any) to manage the residuals, have a contract with an appropriately permitted facility to dispose of the residuals or present credible evidence that the residuals will be managed in a manner that is protective of human health and the environment, and

001.05F The intermediate or reclamation facility must address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment (i.e., releases that are not covered by a permit, such as a permit to discharge to water or air), which may include, but are not limited to, potential releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures), and must include consideration of potential cumulative risks from other nearby potential stressors.

128 Neb. Admin. Code, ch. 5, § 001