Section 33.1-24-02-03 - Definition of hazardous waste1. A solid waste, as defined in section 33.1-24-02-02, is a hazardous waste if: a. It is not excluded from regulation as a hazardous waste under subsection 2 of section 33.1-24-02-04; andb. It meets any of the following criteria: (1) It exhibits any of the characteristics of hazardous waste identified in sections 33.1-24-02-10 through 33.1-24-02-14. However, any mixture of a waste from the extraction, beneficiation, and processing of ores and minerals excluded under subdivision g of subsection 2 of section 33.1-24-02-04 and any other solid waste exhibiting a characteristic of hazardous waste under sections 33.1-24-02-10 through 33.1-24-02-14 is a hazardous waste only if it exhibits a characteristic that would not have been exhibited by the excluded waste alone if such mixture had not occurred or if it continues to exhibit any of the characteristics exhibited by the nonexcluded wastes prior to mixture. Further, for the purposes of applying the toxicity characteristic to such mixtures, the mixture is also a hazardous waste if it exceeds the maximum concentration for any contaminant listed in table 1 to section 33.1-24-02-14 that would not have been exceeded by the excluded waste alone if the mixture had not occurred or if it continues to exceed the maximum concentration for any contaminant exceeded by the nonexempt waste prior to the mixture.(2) It is listed in sections 33.1-24-02-15 through 33.1-24-02-19 and has not been excluded from the lists in sections 33.1-24-02-15 through 33.1-24-02-19 by petitioning the department under sections 33.1-24-01-06 and 33.1-24-01-08.(4) It is a mixture of solid waste and one or more hazardous wastes listed in sections 33.1-24-02-15 through 33.1-24-02-19 and has not been excluded from this subdivision under sections 33.1-24-01-06 and 33.1-24-01-08, or subsection 7 or 8; however, the following mixtures of solid wastes and hazardous wastes listed in sections 33.1-24-02-15 through 33.1-24-02-19 are not hazardous wastes (except by application of paragraph 1 or 2) if the generator can demonstrate that the mixture consists of wastewater the discharge of which is subject to regulation under subsections 18 and 19, or subsection 25 of North Dakota Century Code section 61-28-04 (including wastewater at the facilities which have eliminated the discharge of wastewater) and: (a) One or more of the following spent solvents listed in section 33.1-24-02-16 -benzene, carbon tetrachloride, tetrachloroethylene, trichloroethylene or the scrubber waters derived from the combustion of these spent solvents -provided that the maximum total weekly usage of these solvents (other than the amounts that can be demonstrated not to be discharged to wastewater) divided by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pretreatment system does not exceed one part per million, or the total measured concentration of these solvents entering the headworks of the facility's wastewater treatment system (at facilities subject to regulation under the Clean Air Act, as amended, at 40 CFR parts 60, 61, or 63, or at facilities subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions), does not exceed one part per million on an average weekly basis. Any facility that uses benzene as a solvent and claims this exemption must use an aerated biological wastewater treatment system and must use only lined surface impoundments or tanks prior to secondary clarification in the wastewater treatment system. Facilities that choose to measure concentration levels must file a copy of the facility's sampling and analysis plan with the department. A facility must file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility's operations. The sampling and analysis plan must include the monitoring point location (headworks), the sampling frequency and methodology, and a list of constituents to be monitored. A facility is eligible for the direct monitoring option once the facility receives confirmation that the sampling and analysis plan has been received by the department. The department may reject the sampling and analysis plan if the department finds that, the sampling and analysis plan fails to include the above information, or the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately. If the department rejects the sampling and analysis plan or if the department finds that the facility is not following the sampling and analysis plan, the department shall notify the facility to cease the use of the direct monitoring option until such time as the basis for rejection are corrected;(b) One or more of the following spent solvents listed in section 33.1-24-02-16 -methylene chloride, 1,1,1-trichloroethane, chlorobenzene, o-dichlorobenzene, cresols, cresylic acid, nitrobenzene, toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, spent chlorofluorocarbon solvents, 2-ethoxyethanol, or the scrubber waters derived from the combustion of these spent solvents - provided that the maximum total weekly usage of these solvents (other than the amounts that can be demonstrated not to be discharged to wastewater) divided by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pretreatment system does not exceed twenty-five parts per million, or the total measured concentration of these solvents entering the headworks of the facility's wastewater treatment system (at facilities subject to regulation under the Clean Air Act as amended, at 40 CFR parts 60, 61, or 63, or at facilities subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions), does not exceed twenty-five parts per million on an average weekly basis. Facilities that choose to measure concentration levels must file a copy of the facility's sampling and analysis plan with the department. A facility must file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility's operations. The sampling and analysis plan must include the monitoring point location (headworks), the sampling frequency and methodology, and a list of constituents to be monitored. A facility is eligible for the direct monitoring option once the facility receives confirmation that the sampling and analysis plan has been received by the department. The department may reject the sampling and analysis plan if the department finds that, the sampling and analysis plan fails to include the above information; or the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately. If the department rejects the sampling and analysis plan or if the department finds that the facility is not following the sampling and analysis plan, the department shall notify the facility to cease the use of the direct monitoring option until such time as the basis for rejection are corrected;(c) One of the following wastes listed in section 33.1-24-02-17, provided that the wastes are discharged to the refinery oil recovery sewer before primary oil/water/solids separation - heat exchanger bundle cleaning sludge from the petroleum refining industry (hazardous waste number K050), crude oil storage tank sediment from petroleum refining operations (hazardous waste number K169), clarified slurry oil tank sediment or in-line filter/separation solids, or both, from petroleum refining operations (hazardous waste number K170), spent hydrotreating catalyst (hazardous waste number K171), and spent hydrorefining catalyst (hazardous waste number K172);(d) A discarded hazardous waste, chemical commercial product, or chemical intermediate listed in sections 33.1-24-02-16 through 33.1-24-02-18, arising from de minimis losses of these materials. For purposes of this subparagraph, "de minimis" losses are inadvertent releases to a wastewater treatment system, including those from normal material handling operations, (e.g., spills from the unloading or transfer of materials from bins or other containers, leaks from pipes, valves, or other devices used to transfer materials); minor leaks of process equipment, storage tanks or containers; leaks from well-maintained pump packings and seals; sample purgings; relief device discharges; discharges from safety showers and rinsing and cleaning of personal safety equipment; and rinsate from empty containers or from containers that are rendered empty by that rinsing. Any manufacturing facility that claims an exemption for de minimis quantities of wastes listed in sections 33.1-24-02-16 through 33.1-24-02-17, or any nonmanufacturing facility that claims an exemption for de minimis quantities of wastes listed in sections 33.1-24-02-15 through 33.1-24-02-19 must either have eliminated the discharge of wastewaters or have included in the facility's Clean Water Act permit application or submission to the facility's pretreatment control authority the constituents for which each waste was listed (in 33.1-24-02 appendix IV); and the constituents in the table "treatment standards for hazardous wastes" in section 33.1-24-05-280 for which each waste has a treatment standard (for example, land disposal restriction constituents). A facility is eligible to claim the exemption once the permit writer or control authority has been notified of possible de minimis releases via the Clean Water Act permit application or the pretreatment control authority submission. A copy of the Clean Water Act permit application or the submission to the pretreatment control authority must be placed in the facility's onsite files;(e) Wastewater resulting from laboratory operations containing toxic (T) wastes listed in sections 33.1-24-02-15 through 33.1-24-02-19, provided that the annualized average flow of laboratory wastewater does not exceed one percent of total wastewater flow into the headworks of the facility's wastewater treatment or pretreatment system, or provided the wastes combined annualized average concentration does not exceed one part per million in the headworks of the facility's wastewater treatment or pretreatment facility. Toxic (T) wastes used in laboratories that are demonstrated not to be discharged to wastewater are not to be included in this calculation;(f) One or more of the following wastes listed in section 33.1-24-02-17 -wastewaters from the production of carbamates and carbamoyl oximes (hazardous waste number K157) - provided that the maximum weekly usage of formaldehyde, methyl chloride, methylene chloride, and triethylamine (including all amounts that cannot be demonstrated to be reacted in the process, destroyed through treatment, or is recovered, for example, what is discharged or volatilized) divided by the average weekly flow of process wastewater prior to any dilution into the headworks of the facility's wastewater treatment system does not exceed a total of five parts per million by weight or the total measured concentration of these chemicals entering the headworks of the facility's wastewater treatment system (at facilities subject to regulation under the Clean Air Act as amended, at 40 CFR parts 60, 61, or 63, or at facilities subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions), does not exceed five parts per million on an average weekly basis. Facilities that choose to measure concentration levels must file copy of the facility's sampling and analysis plan with the department. A facility must file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility's operations. The sampling and analysis plan must include the monitoring point location (headworks), the sampling frequency and methodology, and a list of constituents to be monitored. A facility is eligible for the direct monitoring option once the facility receives confirmation that the sampling and analysis plan has been received by the department. The department may reject the sampling and analysis plan if the department finds that, the sampling and analysis plan fails to include the above information; or the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately. If the department rejects the sampling and analysis plan or if the department finds that the facility is not following the sampling and analysis plan, the department shall notify the facility to cease the use of the direct monitoring option until such time as the basis for rejection are corrected; or(g) Wastewaters derived from the treatment of one or more of the following wastes listed in section 33.1-24-02-17 - organic waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates) from the production of carbamates and carbamoyl oximes (hazardous waste number K156) - provided, that the maximum concentration of formaldehyde, methyl chloride, methylene chloride, and triethylamine prior to any dilutions into the headworks of the facility's wastewater treatment system does not exceed a total of five milligrams per liter or the total measured concentration of these chemicals entering the headworks of the facility's wastewater treatment system (at facilities subject to regulation under the Clean Air Act as amended, at 40 CFR parts 60, 61, or 63, or at facilities subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions), does not exceed five milligrams per liter on an average weekly basis. Facilities that choose to measure concentration levels must file a copy of the facility's sampling and analysis plan with the department. A facility must file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility's operations. The sampling and analysis plan must include the monitoring point location (headworks), the sampling frequency and methodology, and a list of constituents to be monitored. A facility is eligible for the direct monitoring option once the facility receives confirmation that the sampling and analysis plan has been received by the department. The department may reject the sampling and analysis plan if the department finds that, the sampling and analysis plan fails to include the above information; or the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately. If the department rejects the sampling and analysis plan or if the department finds that the facility is not following the sampling and analysis plan, the department shall notify the facility to cease the use of the direct monitoring option until such time as the basis for rejection are corrected.(5) Rebuttable presumption for used oil. Used oil containing more than one thousand parts per million total halogens is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in sections 33.1-24-02-15 through 33.1-24-02-19. Persons may rebut this presumption by demonstrating that the used oil does not contain hazardous waste (for example, to show that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in appendix V of 33.1-24-02). (a) The rebuttable presumption does not apply to metalworking oils or fluids, or both, containing chlorinated paraffins, if they are processed, through a tolling agreement, to reclaim metalworking oils or fluids, or both. The presumption does apply to metalworking oils or fluids, or both, if such oils or fluids, or both, are recycled in any other manner, or disposed.(b) The rebuttable presumption does not apply to used oils contaminated with chlorofluorocarbons removed from refrigeration units where the chlorofluorocarbons are destined for reclamation. The rebuttable presumption does apply to used oils contaminated with chlorofluorocarbons that have been mixed with used oil from sources other than refrigeration units.2. A solid waste which is not excluded from regulation under subdivision a of subsection 1 becomes a hazardous waste when any of the following events occur: a. In the case of a waste listed in this chapter, when the waste first meets the listing description set forth in sections 33.1-24-02-15 through 33.1-24-02-19.b. In the case of a mixture of solid waste and one or more listed hazardous wastes, when a hazardous waste listed in sections 33.1-24-02-15 through 33.1-24-02-19 is first added to the solid waste.c. In the case of any other waste (including a waste mixture), when the waste exhibits any of the characteristics identified in sections 33.1-24-02-10 through 33.1-24-02-14.3. Unless and until it meets the criteria of subsection 4: a. A hazardous waste will remain a hazardous waste.b. Except as otherwise provided in paragraph 2: (1) Except as otherwise provided in paragraph 2, or subsection 7 or 8, any solid waste generated from the treatment, storage, or disposal of a hazardous waste, including any sludge, spill residue, ash, emission control dust, or leachate (but not including precipitation runoff) is a hazardous waste. (However, materials that are reclaimed from solid wastes and that are used beneficially are not solid wastes and hence are not hazardous wastes under this provision unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal.)(2) The following solid wastes are not hazardous even though they are generated from the treatment, storage, or disposal of a hazardous waste, unless they exhibit one or more of the characteristics of hazardous waste: (a) Waste pickle liquor sludge generated by lime stabilization of spent pickle liquor from the iron and steel industry (standard industrial codes 331 and 332).(b) Wastes from burning any of the materials exempted from regulation by paragraphs 3 and 4 of subdivision c of subsection 1 of section 33.1-24-02-06.(c) Nonwastewater residue. [1] Nonwastewater residues, such as slag, resulting from high temperature metals recovery (HTMR) processing of K061, K062, or F006 waste, in units identified as rotary kilns, flame reactors, electric furnaces, plasma arc furnaces, slag reactors, rotary hearth furnace/electric furnace combinations or industrial furnaces (as defined in the definition for "industrial furnace" in section 33.1-24-01-04), that are disposed in solid waste management units, provided that these residues meet the generic exclusion levels identified in the tables in this paragraph for all constituents, and exhibit no characteristics of hazardous waste. Testing requirements must be incorporated in a facility's waste analysis plan or a generator's self-implementing waste analysis plan; at a minimum, composite samples of residues must be collected and analyzed quarterly or when the process or operation generating the waste changes or both. Persons claiming this exclusion in an enforcement action will have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements. Constituent | Maximum for Any Single Composite Sample -Toxicity Characteristic Leaching Procedure (mg/l) |
| Generic exclusion levels for K061 and K062 nonwastewater high temperature metals recovery residues |
Antimony | 0 .10 |
Arsenic | 0 .50 |
Barium | 7 .6 |
Beryllium | 0 .010 |
Cadmium | 0 .050 |
Chromium (total) | 0 .33 |
Lead | 0 .15 |
Mercury | 0 .009 |
Nickel | 1 .0 |
Selenium | 0 .16 |
Silver | 0 .30 |
Thallium | 0 .020 |
Zinc | 7 0 |
Generic exclusion levels for F006 nonwastewater high temperature metals recovery residues |
Antimony | 0 .10 |
Arsenic | 0 .50 |
Barium | 7 .6 |
Beryllium | 0 .010 |
Cadmium | 0 .050 |
Chromium (total) | 0 .33 |
Cyanide (total) (mg/kg) | 1 .8 |
Lead | 0 .15 |
Mercury | 0 .009 |
Nickel | 1 .0 |
Selenium | 0 .16 |
Silver | 0 .30 |
Thallium | 0 .020 |
Zinc | 7 0 |
[2] A one-time notification and certification must be placed in the facility's files and sent to the department for K061, K062, or F006 high temperatures metal recovery residues that meet the generic exclusion levels for all constituents and do not exhibit any characteristics that are sent to solid waste management units. The notification and certification that is placed in the generators or treaters files must be updated if the process or operation generating the waste changes or if the solid waste management unit receiving the waste changes. However, the generator or treater need only notify the department on an annual basis if such changes occur. Such notification and certification should be sent to the department by the end of the calendar year, but no later than December thirty-first. The notification must include the following information: the name and address of the solid waste management unit receiving the waste shipments; the hazardous waste numbers and treatability groups at the initial point of generation; and, the treatment standards applicable to the waste at the initial point of generation. The certification must be signed by an authorized representative and must state as follows: "I certify under penalty of law that the generic exclusion levels for all constituents have been met without impermissible dilution and that no characteristic of hazardous waste is exhibited. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment."(d) Biological treatment sludge from the treatment of one of the following wastes listed in section 33.1-24-02-17 organic waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates) from the production of carbamates and carbamoyl oximes (hazardous waste number K156), and wastewaters from the production of carbamates and carbamoyl oximes (hazardous waste number K157).(e) Catalyst inert support media separated from one of the following wastes listed in section 33.1-24-02-17 spent hydrotreating catalyst (hazardous waste number K171), and spent hydrorefining catalyst (hazardous waste number K172).4. Any solid waste described in subsection 3 is not a hazardous waste if it meets the following criteria: a. In the case of any solid waste, it does not exhibit any of the characteristics of hazardous waste identified in sections 33.1-24-02-10 through 33.1-24-02-14. (However, wastes that exhibit a characteristic at the point of generation may still be subject to the requirements of sections 33.1-24-05-250 through 33.1-24-05-299, even if they no longer exhibit a characteristic at the point of land disposal.); orb. In the case of a waste which is a listed waste in sections 33.1-24-02-15 through 33.1-24-02-19, contains 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, it also has been excluded from subsection 3 under sections 33.1-24-01-06 and 33.1-24-01-08.5. Notwithstanding subsections 1 through 4 and provided the debris as defined in sections 33.1-24-05-250 through 33.1-24-05-299 does not exhibit a characteristic identified at sections 33.1-24-02-10 through 33.1-24-02-14, the following materials are not subject to regulation under 33.1-24-01 through 33.1-24-04, 33.1-24-06, sections 33.1-24-05-01 through 33.1-24-05-559, or 33-24-05-800 through 33-24-05-929: a. Hazardous debris as defined in sections 33.1-24-05-250 through 33.1-24-05-299 that has been treated using one of the required extraction or destruction technologies specified in table 1 of section 33.1-24-05-285; persons claiming this exclusion in an enforcement action will have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements; orb. Debris as defined in sections 33.1-24-05-250 through 33.1-24-05-299 that the department, considering the extent of contamination, has determined is no longer contaminated with hazardous waste.7. A hazardous waste that is listed in sections 33.1-24-02-15 through 33.1-24-02-19 solely because it exhibits one or more characteristics of ignitability as defined under section 33.1-24-02-11, corrosivity as defined under section 33.1-24-02-12, or reactivity as defined under section 33.1-24-02-13 is not a hazardous waste, if the waste no longer exhibits any characteristic of hazardous waste identified in sections 33.1-24-02-10 through 33.1-24-02-14. a. The exclusion described in this subsection also pertains to: (1) Any mixture of a solid waste and a hazardous waste listed in sections 33.1-24-02-15 through 33.1-24-02-19 solely because it exhibits the characteristics of ignitability, corrosivity, or reactivity as regulated under paragraph 4 of subdivision b of subsection 1; and(2) Any solid waste generated from treating, storing, or disposing of a hazardous waste listed in sections 33.1-24-02-15 through 33.1-24-02-19 solely because it exhibits the characteristics of ignitability, corrosivity, or reactivity as regulated under paragraph 1 of subdivision b of subsection 3.b. Wastes excluded under this subsection are subject to the land disposal restrictions in sections 33.1-24-05-250 through 33.1-24-05-299, as applicable, even if the wastes no longer exhibit a characteristic at the point of land disposal.c. Any mixture of a solid waste excluded from regulation under subdivision g of subsection 2 of section 33.1-24-02-04 and a hazardous waste listed in sections 33.1-24-02-15 through 33.1-24-02-19 solely because it exhibits one or more of the characteristics of ignitability, corrosivity, or reactivity as regulated under paragraph 4 of subdivision b of subsection 1 is not a hazardous waste, if the mixture no longer exhibits any characteristic of hazardous waste identified in sections 33.1-24-02-10 through 33.1-24-02-14 for which the hazardous waste listed in sections 33.1-24-02-15 through 33.1-24-02-19 was listed.8. Hazardous waste containing radioactive waste is no longer a hazardous waste when it meets the eligibility criteria and conditions of sections 33.1-24-05-850 through 33.1-24-05-929 "eligible radioactive mixed waste". a. The exemption described in this subsection also pertains to: (1) Any mixture of a solid waste and an eligible radioactive mixed waste; and(2) Any solid waste generated from treating, storing, or disposing of an eligible radioactive mixed waste.b. Waste exempted under this subsection must meet the eligibility criteria and specified conditions in sections 33.1-24-05-856 and 33.1-24-05-857, for storage and treatment, and in sections 33.1-24-05-890 and 33.1-24-05-895, for transportation and disposal. Waste that fails to satisfy these eligibility criteria and conditions is regulated as hazardous waste.N.D. Admin Code 33.1-24-02-03
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