Beneficial Use of Solid Waste

(1) Summary. 310 CMR 19.060 establishes the Department’s rules for the beneficial use of solid waste and classification of a solid waste as a secondary material. Included in this subsection are general standards and permit procedures for beneficial use activities. In order to identify specific standards and permit procedures, proposed uses of secondary materials are divided into four categories: (a) Category 1 - Commercial Products; (b) Category 2 - Regulated Systems; (c) Category 3 - Restricted Applications; and, (d) Category 4 - Unrestricted Applications. (2) Burden of Proof. (a) The applicant must demonstrate to the Department’s satisfaction that the proposed secondary materials and uses are beneficial and pose an insignificant potential hazard to public health, safety or the environment. (b) The Department may grant a beneficial use determination, and may allow a beneficial use determination to remain in effect, only to the extent, and only while, the Department is satisfied that such secondary materials and uses are beneficial and pose an insignificant potential hazard to public health, safety or the environment. (3) Determination of Applicability. (a) Any person who desires a determination whether 310 CMR 19.060 applies to a facility or operation that proposes to store, process or use a secondary material may submit to the Department a request for a determination of applicability. The applicant shall provide the following forms and information to the Department: 1. Submit a Request for Determination of Applicability to the Department using the appropriate forms provided by the Department. 2. Provide a detailed description of the facility that proposes to store, process, or otherwise handle the secondary material. In the case of a manufacturing facility, a general description of the facility’s manufacturing system shall be submitted, including process flow diagrams. The complexity and degree of detail of the description will vary depending on the magnitude and complexity of the process. 3. Describe the feedstock or product the proposed secondary material is replacing. 4. Provide a detailed description of similar products currently and historically produced by the facility. 5. Provide a characterization of the proposed secondary material. The scope of the characteriza-tion shall be sufficient for the Department to adequately determine adverse impacts and risks to public health, safety and the environment, including, but not limited to, nuisance conditions. This shall include: a. A physical characterization of the proposed secondary material including, but not limited to, matrix and gradation, where applicable. b. Chemical characterization of the proposed secondary material including the results of analytical testing for those hazardous materials that reasonably may be thought to be present. 6. Describe any previous licenses, permits, authorizations, or other approvals for recycling or beneficial use of the proposed secondary material. (b) The Department shall issue a determination of applicability within 45 days of the receipt of the request. (4) Processing of Secondary Materials. When the processing of a proposed secondary material is necessary for its beneficial use the Department shall determine the type and amount of processing allowable which does not constitute a solid waste processing activity. If the Department determines that processing of the secondary material constitutes a solid waste processing activity then the processing shall be subject to the provisions of 310 CMR 16.00 and 19.000. (5) General Application Requirements. A copy of the beneficial use permit application shall be filed with the Department. In addition, a copy shall be filed with the board of health of jurisdiction when the proposed use is limited to a specific location. The application shall be filed on a form supplied by the Department and contain the following information as determined or modified at the pre-application meeting where a pre-application meeting has been held. Items in 310 CMR 19.060(4)(a) through (i) must be included as part of the pre-application package. The final permit application package must include the data as required in 310 CMR 19.060(4)(j): (a) A description of the proposed secondary material and its proposed use; (b) A description of how the proposed utilization will result in a viable and beneficial substitution for a commercial product or commodity; (c) A detailed physical and chemical characterization plan of both the secondary material proposed for beneficial use and of the final product including: 1. A detailed list of the chemical constituents found in the product(s) from which the proposed secondary material is derived; 2. A statistically valid, representative sampling plan consistent with guidance in “Test Methods for Evaluating Solid Waste: Physical/Chemical Methods,” SW-846, U.S. Environmental Protection Agency, Office of Solid Waste, Washington, D.C. 20460, and other applicable guidance as may be stipulated by the Department. The sampling plan shall include all hazardous materials including Critical Contaminants of Concern (CCCs) that reasonably may be thought to be present in the proposed secondary material. CCCs shall be separately listed. 3. A quality assurance and quality control plan, ensuring that appropriate procedures are followed and documented, using guidance contained in EPA/600/R-02/009, December 2002, Guidance on Quality Assurance Project Plans and other applicable guidance as may be provided by the Department. (d) A detailed description of the proposed facility that will store, process, or otherwise handle the proposed secondary material. In the case of a manufacturing facility, a general description of the facility’s manufacturing system related to the proposed use of secondary material shall be submitted, including process flow diagrams. The complexity and degree of detail of the description will vary depending on the magnitude and complexity of the process generating the proposed secondary material. Any interim handling facilities or collection centers not located at the site of processing and not otherwise approved to store or handle the proposed secondary material pursuant to 310 CMR 16.00 and 19.000 shall be identified and described pursuant to this section; (e) Information indicating the annual quantities, by weight and/or volume, of the secondary material proposed for beneficial use; (f) A description of any risk management techniques being considered, including any deed or other use limitations, location restrictions, best management practices or engineering controls; (g) Identification of the proposed location of use, if applicable, or types of locations where the proposed secondary material will be used (e.g. highway rights-of-way, industrial zoned properties, etc.); (h) Identification of storage requirements necessary for maintaining sufficient inventory to meet market demand; (i) If hazardous materials, including CCCs, are identified during the pre-application or application process the project proponent shall prepare and submit a Toxics Reduction Plan (TRP) that details options to minimize the concentration of hazardous material that could be released to the environment. The TRP shall document steps that will be taken to implement economically and technologically feasible options; and, (j) Submission of all appropriate data derived from the sampling plan required in accordance with 310 CMR 19.060(4)(c)3. The Applicant must include a statistically valid analysis of the concentration and distribution of all hazardous materials that may be contained in the proposed secondary material. (6) Demonstration Projects. The Department may grant temporary approval for a pilot project or demonstration project pursuant to 310 CMR 19.062: Demonstration Projects or Facilities. The application requirements for a pilot project or demonstration project will be determined on a case-by-case basis by the Department. (7) Record Keeping. The permittee shall maintain records and shall submit reports to the Department as required in the permittee’s Beneficial Use Determination permit. Reports shall summarize beneficial use activities during the past year, including the quantity of secondary material received or distributed for beneficial use, the sources of the secondary material received, and the results of any required testing or on-going characterization and any other information required as a condition of the permit. (8) Public Participation. The Department shall accept comments from Boards of Health and other interested parties regarding the application for a period not less than 21 days before issuing a final determination. (9) General Beneficial Use Determinations. The Department may issue general beneficial use determinations, as general permits, that apply to a specific beneficial use of a secondary material, providing the reuse complies with the Reuse Criteria listed in 310 CMR 19.060(12). Any person or entity may use the secondary material as identified in the general beneficial use determination as long as the person or entity adheres to the requirements and conditions contained therein. (10) Effect of Determinations. A determination of beneficial use means the secondary material is not classified as a solid waste only when used in accordance with the Department's determination of beneficial use. (11) Pre-application. (a) Applicants for a Beneficial Use Determination may request a pre-application meeting with the Department, the purpose of which is for the Applicant to describe the proposed beneficial use activity and obtain guidance on the application process and content from the Department. (b) The Applicant shall submit general application information, as described in General Application Requirements, 310 CMR 19.060(4), to the Department at least ten business days prior to the pre-application meeting. Information submitted for purposes of pre-application shall be sufficient to assign the application to the appropriate beneficial use category as described in section 310 CMR 19.060(12) through (15). (12) General Standards. (a) If the applicant intends to use the proposed secondary material as a substitute for a virgin material in manufacturing, the proposed secondary material shall conform to industry specifications for the virgin material it is replacing or impart properties that result in the product meeting applicable industry performance specifications. (b) If the applicant intends to use the proposed secondary material as a product, it shall meet or exceed the applicable industry-accepted specifications or performance standards for that product. Where no industry-accepted specifications or performance standards exist, the mixing of proposed secondary materials with other materials to produce a product must be a necessary component of the product. (c) Any proposed processing and beneficial use shall not cause an adverse impact or significant risk to public health, safety and the environment, including, but not limited to, nuisance conditions. All beneficial use applications must demonstrate that the proposed reuse meets all of the criteria identified in 310 CMR 19.060(13): Reuse Criteria. (d) The proposed secondary material shall not be handled or utilized in a manner that will result in the proposed secondary material becoming a solid waste; (e) The proposed beneficial use shall be successfully completed in compliance with applicable rules and regulations. (13) Reuse Criteria. (a) No significant risk to public health shall be created. (b) No significant adverse environmental impacts shall be created. (c) No condition shall be treated that adversely impacts public health, safety, or the environment. (d) Reuse may not result in increases in the environmental concentrations of any critical contaminants of concern (CCCs), including persistent, bioaccumulative toxins (PBT) and other priority chemical pollutants as may be identified by the Department. (e) Reuse shall be in compliance with all applicable requirements of the Department. (14) Category 1 -- Use of Secondary Materials in Commercial Products. (a) Applicability. Products manufactured from secondary materials or secondary materials that are directly used as products are considered commercial products when: the product is used in a manner that is consistent with industry accepted product specifications or performance standards; and is controlled and managed throughout its lifecycle in a manner that effectively limits potential for illegal or inadvertent disposal or releases of hazardous material to the environment and exposure to people. Products intended for uncontrolled land-application may not be reviewed in accordance with this category. Adverse impact or significant risk to public health, safety and the environment, including, but not limited to, nuisance conditions can be evaluated by demonstrating compliance with the reuse criteria as outlined at 310 CMR 19.060(12)(b). (b) Demonstrating Compliance with the Reuse Criteria. The use and processing of the proposed secondary material must comply with the Reuse Criteria specified in 310 CMR 19.060(13). This determination shall be based upon a comparative analysis of the product manufactured using the proposed secondary material as compared to the traditionally used feedstock or product it is replacing. If the nature and concentration of hazardous materials, including CCCs, are comparable, further assessment will not be required. Uses of proposed secondary materials that reasonably may be anticipated to significantly increase risks to public health, safety and the environment, above that of the traditional feedstock or the product in the same application, cannot be reviewed in accordance with 310 CMR 19.030(14)(b). (c) Application Requirements. In addition to the general application requirements cited at 310 CMR 19.060(5), the applicant shall submit the following information: 1. A physical characterization of the commercial product; 2. A list of constituents (including hazardous materials) contained in the product manufactured using traditional materials or products; 3. A comparative analysis of the product manufactured using the proposed secondary material versus the traditionally used material it is replacing for the following: a. Hazardous materials, including CCCs (on a weight and concentration basis); b. Processing required for use; c. Actual use, including, but not limited to, storage and handling prior to the actual use; d. Location(s) used; and, e. Management or processing during its lifecycle, including, but not limited to, any destructive practices that reasonably may be expected to be employed in recycling or disposing of the proposed secondary material; (15) Category 2 -- Use of Secondary Materials in Regulated Systems. (a) Applicability. Beneficial use of secondary materials at facilities permitted, approved or ordered by the Department shall be deemed adequately regulated for purposes of 310 CMR 19.000, provided the person does so in compliance with the terms and conditions of any such permit, order or approval and the following: 1. Any aspect of the use of proposed secondary materials not covered by the permit, order, or approval shall be reviewed in accordance with M.G.L. c. 111, § 150A, 310 CMR 19.000, and 310 CMR 16.00; 2. The storage, transfer, processing, treatment, use and disposal of the proposed secondary material shall be achieved using best management practices that prevent adverse impacts and significant risks to public health, safety and the environment, including, but not limited to, nuisance conditions. (b) Demonstrating Compliance with the Reuse Criteria. Compliance with the Reuse Criteria can be demonstrated by meeting appropriate numerical standards, risk management criteria and other applicable requirements as identified by the Department. (c) Application Requirements. In addition to the general application requirements cited at 310 CMR 19.060(5), the applicant shall provide sufficient information to evaluate the potential for significant proposed risks from the storage, transfer, processing, treatment activities, use and final disposal of the secondary material not governed by the existing approval. (16) Category 3 -- Use of Secondary Materials in Restricted Applications. (a) Applicability. Secondary materials that are beneficially used in applications that utilize risk management techniques in order to prevent adverse impact or significant risks to public health, safety and the environment, including, but not limited to, nuisance conditions shall be reviewed in accordance with 310 CMR 19.060(16). (b) Demonstrating Compliance With the Reuse Criteria. Compliance with the Reuse Criteria can be achieved by demonstrating that release and exposure pathways are adequately controlled through the use of risk management procedures (e.g. engineering controls; use limitations, etc.) If adequate control of such pathways cannot be demonstrated, a reuse specific assessment is required, as described at 310 CMR 19.060(16)(b)1. or 2. Compliance with the Reuse Criteria has been achieved if no concentration of any hazardous material is greater than the Upper Concentration Limit as described in 310 CMR 40.0996 and conditions specified in either 310 CMR 19.060(16)(b)1. or 2. are met: 1. The concentrations of all hazardous materials are at or below background, as determined by a statistically valid and appropriate background concentration sample data set of Massachusetts soils; or, 2. No concentration of a Hazardous Material contained in, or release resulting from the use of, a proposed secondary material, as appropriate, exceeds acceptable limits as demonstrated using one of the following approaches: a. Numerical Standards Approach. Hazardous material concentrations may not exceed applicable standards and guidelines as stipulated by DEP. If an appropriate DEP standard or guideline does not exist for all constituents in all relevant media, then a guideline may be proposed by the applicant developed using protocols consistent with those used in the derivation of existing DEP standards and guidelines for that medium. In addition to the standards and guidelines, the applicant shall demonstrate that the reuse will not lead to exceedences of the Massachusetts Drinking Water Quality Standards at 310 CMR 22.00; Massachusetts Air Quality Standards at 310 CMR 7.00; Massachusetts Contingency Plan Method 1 Standards at 310 CMR 40.0970; and, Massachusetts Surface Water Quality Standards at 314 CMR 4.00. b. Total Waste Reuse Risk Approach. Using this approach, Total Waste Reuse cancer and non-cancer risks shall be determined as follows: i. Total cancer risks and non-cancer risks shall be calculated for all appropriate exposure pathways and receptors. ii. The assessment shall be performed in a manner consistent with scientifically acceptable risk assessment practices as detailed in guidance published by the Department. iii. A condition of no significant risk to human health has been achieved if: - No Exposure Point Concentration of any hazardous material is greater than applicable public health or environmental standards; and, - Total Waste Reuse Risk (the aggregate risk attributable to all hazardous materials) results in excess lifetime cancer risk of less than five-in-one million and a non-cancer cumulative hazard index of less than 0.5. 3. Public Health and Safety. A level of no significant risk to public health and safety exists or has been achieved if the use of the proposed secondary material will not pose a threat of physical harm or bodily injury to people and will not create nuisance conditions, including, but not limited, to noxious odors and noise, in the foreseeable future. 4. Environment. A level of no significant risk of harm to the environment exists, or has been achieved, if there is no indication of the potential for biologically significant harm (at the subpopulation, community, or system-wide level), either currently or for any foreseeable period of time, to Environmental Receptors as described at 310 CMR 40.0000 considering their potential exposures to the proposed secondary material. (c) Application Requirements. In addition to the general application requirements cited at 310 CMR 19.060(5), the applicant shall submit the following: 1. Characterization. The application shall include risk characterization information, the scope and level of effort of which shall depend on the proposed secondary material, the beneficial use, and the specific exposure assumptions identified. The characterization shall be of sufficient scope and adequately documented to demonstrate compliance with the Reuse Criteria at 310 CMR 19.060(13). 10/7/05 310 CMR - 641 2. Location. If the Department determines during the pre-application review that the location of the beneficial use activity must be identified in order to manage risks posed by the beneficial use activity, a U.S.G.S. 7.5 minute topographic map or smaller scale equivalent map clearly marking the location(s) of the beneficial use activities. 3. End of Use Management. A description of how the proposed secondary material may be managed when removed or processed during its lifecycle. (d) Property Owner Notification. The Applicant shall prepare and record, when required by permit term or condition, a record in the Registry of Deeds, Land Court, or other permanent record approved by the Department that shall: 1. Provide notice to holders of any interest(s) in a property or a portion thereof (including without limitation, owners, lessees, tenants, mortgagee, and holders of easement rights) of the existence and location of the secondary material at such property and the conditions for continued beneficial use and ultimate disposal, if applicable; 2. Outline management options if removed, modified, or processed during its lifecycle to prevent adverse impacts and significant risks to public health, safety and the environment, including, but not limited to, nuisance conditions; and 3. Provide reference to the Department beneficial use application file by including the permit application transmittal number and file location. (17) Category 4 – Use of Secondary Material in Unrestricted Applications. (a) Applicability. Secondary materials that are beneficially used in applications that do not limit exposure to potential human or environmental receptors from secondary material constituents are reviewed in accordance with 310 CMR 19.060(17) when constituents have the potential to adversely impact or create a risk to public health, safety, or the environment including, but not limited to, nuisance conditions when improperly stored, treated, transported, disposed of, used, or otherwise managed. (b) Demonstrating Compliance with the Reuse Criteria. Compliance with the Reuse Criteria shall be made on the basis of provisions detailed in 310 CMR 19.060(16)(b), using conservative, unrestricted general exposure assumptions (e.g. residential exposures including sensitive receptors) in order to protect public health, safety and the environment. (c) Application Requirements. In addition to the general permit application requirements identified at 310 CMR 19.060(5) the application shall include characterization information, the scope and level of effort of which shall depend on the proposed secondary material, the beneficial use, and the general exposure assumptions identified with this category of use. The characterization shall be of sufficient scope and adequately documented to demonstrate compliance with 310 CMR 19.060(13): Reuse Criteria.