Section 33.1-24-01-08 - Petitions to amend chapter 33.1-24-02 to exclude a waste produced at a particular facility and amend chapter 33.1-24-05 to include additional hazardous waste or wastes as universal waste1. Any person seeking to exclude a waste at a particular generating facility from the lists in sections 33.1-24-02-15 through 33.1-24-02-19 may petition for a regulatory amendment under this section and section 33.1-24-01-06. To be successful: a. The petitioner must demonstrate to the satisfaction of the department the waste produced by a particular generating facility does not meet any of the criteria under which the waste was listed as a hazardous or an acutely hazardous waste; andb. Based on a complete application, the department must determine, where it has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded; however, still may be a hazardous waste by operation of sections 33.1-24-02-10 through 33.1-24-02-14.2. The procedures in this section and section 33.1-24-01-06 may also be used to petition the department for a regulatory amendment to exclude waste from paragraph 2 of subdivision b of subsection 1 of section 33.1-24-02-03 or subsection 3 of section 33.1-24-02-03, a waste which is described in these sections and is either a waste listed in sections 33.1-24-02-15 through 33.1-24-02-19, or is derived from a waste listed in sections 33.1-24-02-15 through 33.1-24-02-19. This exclusion may only be issued for a particular generating, storage, treatment, or disposal facility. The petitioner must make the same demonstration as required by subsection 1. Where the waste is a mixture of solid waste and one or more listed hazardous wastes or is derived from one or more hazardous wastes, this demonstration must be made with respect to the waste mixture as a whole; analysis must be conducted for not only those constituents for which the listed waste contained in the mixture was listed as hazardous, but also for factors (including additional constituents) that could cause the waste mixture to be a hazardous waste. A waste which is so excluded may still be a hazardous waste by operation of sections 33.1-24-02-10 through 33.1-24-02-14.3. If the waste is listed with codes "I", "C", "R", or "E" in sections 33.1-24-02-15 through 33.1-24-02-19: a. The petitioner must show the waste does not exhibit the relevant characteristics for which the waste was listed as defined in sections 33.1-24-02-11, 33.1-24-02-12, 33.1-24-02-13, or 33.1-24-02-14 using any applicable methods prescribed therein. The petitioner also must show the waste does not exhibit any of the other characteristics defined in sections 33.1-24-02-11, 33.1-24-02-12, 33.1-24-02-13, or 33.1-24-02-14 using any applicable methods prescribed therein.b. Based on a complete application, the department must determine, where it has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded; however, still may be a hazardous waste by operation of sections 33.1-24-02-10 through 33.1-24-02-14.4. If the waste is listed with code "T" in sections 33.1-24-02-15 through 33.1-24-02-19: a. The petitioner must demonstrate the waste: (1) Does not contain the constituent or constituents (as defined in appendix IV of 33.1-24-02) that caused the department to list the waste; or(2) Although containing one or more of the hazardous constituents (as defined in appendix IV of 33.1-24-02) that caused the department to list the waste, does not meet the criterion of subdivision c of subsection 1 of section 33.1-24-02-09 when considering the factors used by the department in paragraphs 1 through 11 of subdivision c of subsection 1 of section 33.1-24-02-09 under which the waste was listed as hazardous; andb. Based on a complete application, the department must determine where they have a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste; andc. The petitioner must demonstrate the waste does not exhibit any characteristics defined in sections 33.1-24-02-11, 33.1-24-02-12, 33.1-24-02-13, and 33.1-24-02-14.d. A waste which is so excluded; however, still may be a hazardous waste by operation of sections 33.1-24-02-10 through 33.1-24-02-14.5. If the waste is listed with the code "H" in sections 33.1-24-02-15 through 33.1-24-02-19: a. The petitioner must demonstrate the waste does not meet the criterion of subdivision b of subsection 1 of section 33.1-24-02-09;b. Based on a complete application, the department must determine where it has a reasonable basis to believe that additional factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste; andc. The petitioner must demonstrate the waste does not exhibit any of the characteristics defined in sections 33.1-24-02-11, 33.1-24-02-12, 33.1-24-02-13, and 33.1-24-02-14 using any applicable methods prescribed therein.d. A waste which is so excluded; however, still may be a hazardous waste by operation of sections 33.1-24-02-10 through 33.1-24-02-14.6. Reserved for listing radioactive wastes.7. Reserved for listing infectious wastes.8. Demonstration samples must consist of enough representative samples, but in no case less than four samples, taken over a period of time sufficient to represent the variability or the uniformity of the waste.9. Each petition must include, in addition to the information required by subsection 2 of section 33.1-24-01-06: a. The name and address of the laboratory facility performing the sampling or tests of the wastes;b. The names and qualifications of the persons sampling and testing the wastes;c. The dates of sampling and testing;d. The location of the generating facility;e. A description of the manufacturing processes or other operations and feed materials producing the waste and an assessment of whether such processes, operations, or feed materials can or might produce a waste that is not covered by the demonstration;f. A description of the waste and an estimate of average and maximum monthly and annual quantities of waste covered by the demonstration;g. Pertinent data on and discussion of the factors delineated in the respective criterion for listing a hazardous waste where the demonstration is based on the factors in subdivision c of subsection 1 of section 33.1-24-02-09;h. A description of the methodologies and equipment used to obtain the representative sample;i. A description of the sample handling and preparation techniques, including techniques used for extraction, containerization, and preservation of the sample;j. A description of the tests performed (including results);k. The names and model numbers of the instruments used in performing the tests; andl. The following statement signed by the generator of the waste or the generator's authorized representative: I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment.
10. After receiving a petition for an exclusion, the department may request any additional information which it may reasonably require to evaluate the petition.11. An exclusion will only apply to the waste generated at the individual facility covered by the demonstration and will not apply to wastes from any other facility.12. The department may exclude only part of the waste for which the demonstration is submitted if it has reason to believe that variability of the waste justifies a partial exclusion.13. Any person seeking to add a hazardous waste or category of hazardous waste to the universal waste regulations of sections 33.1-24-05-700 through 33.1-24-05-799 may petition for a regulatory amendment under this subsection and sections 33.1-24-01-06, 33.1-24-05-760, and 33.1-24-05-761.14. To be successful, the petitioner must demonstrate to the satisfaction of the department that regulation under the universal waste regulations of sections 33.1-24-05-700 through 33.1-24-05-799 is appropriate for the waste or category of waste, will improve management practices for the waste or category of waste, and will improve implementation of the hazardous waste program. The petition must include the information required by subsection 2 of section 33.1-24-01-06. The petition should include as many of the factors listed in section 33.1-24-05-761 as are appropriate for the waste or category of waste addressed in the petition.15. The department will grant or deny a petition using the factors listed in section 33.1-24-05-761. The decision will be based on the weight of evidence showing that regulation under sections 33.1-24-05-700 through 33.1-24-05-799 is appropriate for the waste or category of waste, will improve management for the waste or category of waste, and will improve implementation of the hazardous waste program.16. The department may request additional information needed to evaluate the merits of the petition.N.D. Admin Code 33.1-24-01-08
Adopted by Administrative Rules Supplement 370, October 2018, effective 1/1/2019.General Authority: NDCC 23.1-04-03; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 23.1-04-03, 23.1-04-05; S.L. 2017, ch. 199, § 19