Section NR 660.34 - Standards and criteria for non-waste determinations(1) An applicant may apply to the department for a formal determination that a hazardous secondary material is not discarded and therefore not a solid waste. The determinations will be based on the criteria contained in sub. (2) or (3), as applicable. If an application is denied, the hazardous secondary material may still be eligible for a solid waste variance or exclusion through one of the solid waste variances under s. NR 660.31. Determinations may also be granted by the department if the department is authorized by the EPA for this provision or if all the following conditions are met: (a) The department determines the hazardous secondary material meets the criteria in sub. (2) or (3), as applicable.(b) The department requests that EPA review its determination.(c) The EPA approves the department determination.(2) The department may grant a non-waste determination for hazardous secondary material that is reclaimed in a continuous industrial process if the applicant demonstrates that the hazardous secondary material is a part of the production process and is not discarded. The determination shall be based on whether the hazardous secondary material is legitimately recycled as specified in s. NR 660.43 and on all of the following criteria: (a) The management of the hazardous secondary material is part of the continuous primary production process and is not waste treatment.(b) The capacity of the production process will use the hazardous secondary material in a reasonable time frame and will ensure that the hazardous secondary material will not be abandoned. Examples of factors the department will use to determine capacity of the production process to use the hazardous secondary material include past production practices, market factors, the nature of the hazardous secondary material, and any contractual arrangements.(c) The hazardous constituents in the hazardous secondary material are reclaimed rather than released into the air, water, or land at significantly higher levels from either a statistical or health and environmental risk perspective than would otherwise be released by the production process.(d) Other relevant factors that demonstrate that the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under s. NR 661.0002 or 661.0004.(3) The department may grant a non-waste determination for hazardous secondary material that is indistinguishable in all relevant aspects from a product or intermediate if the applicant demonstrates that the hazardous secondary material is comparable to a product or intermediate and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in s. NR 660.43 and on all of the following criteria: (a) Market participants treat the hazardous secondary material as a product or intermediate rather than a waste. Examples of factors that may be used to determine that the hazardous secondary material is a product or intermediate rather than a waste include the current positive value of the hazardous secondary material, stability of demand, or any contractual arrangements.(b) The chemical and physical identity of the hazardous secondary material is comparable to commercial products or intermediates.(c) The capacity of the market would use the hazardous secondary material in a reasonable time frame and ensure that the hazardous secondary material will not be abandoned. Examples of factors used to determine that a hazardous secondary material will not be abandoned include past practices, market factors, the nature of the hazardous secondary material, and any contractual arrangements.(d) The hazardous constituents in the hazardous secondary material are reclaimed rather than released into the air, water or land at significantly higher levels from either a statistical or health and environmental risk perspective than would otherwise be released by the production process.(e) Other relevant factors that demonstrate that the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under s. NR 661.0002 or 661.0004.Wis. Admin. Code Department of Natural Resources NR 660.34
Adopted by, CR 19-082: cr. Register August 2020 No. 776, eff. 9-1-20; correction in (1) (a), (c), (2) (c), (3) (d) made under s. 35.17, Stats., Register August 2020 No. 776, eff. 9/1/2020