R 299.9232 Legitimate recycling of hazardous secondary materials.

Rule 232. (1) The recycling of a hazardous secondary material for exclusion or exemption from the regulation as a hazardous waste must be legitimate. A hazardous secondary material that is not legitimately recycled is a discarded material and, therefore, a waste. In determining if the recycling is legitimate, a person shall address all the following requirements and consider the requirements of subrule (2) of this rule. (a) Legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process. A hazardous secondary material provides a useful contribution if it meets 1 of the following requirements: (i) It contributes a valuable ingredient to a product or intermediate. (ii) It replaces a catalyst or carrier in the recycling process. (iii) It is the source of a valuable constituent recovered in the recycling process. (iv) It is recovered or regenerated by the recycling process. (v) It is used as an effective substitute for a commercial product. (b) The recycling process must produce a valuable product or intermediate. A product or intermediate is valuable if it meets 1 of the following requirements: (i) It is sold to a third party. (ii) It is used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process. (c) The generator and the recycler shall manage the hazardous secondary material as a valuable commodity when it is under their control. If there is an analogous raw material, the hazardous secondary material must be managed, at a minimum, in a manner consistent with the management of the raw material or in an equally protective manner. If there is no analogous raw material, the hazardous secondary material must be contained. A hazardous secondary material that is released to the environment and is not recovered immediately is discarded. (2) A person making a determination regarding the legitimacy of a specific recycling activity shall consider the following factors: (a) The product of the recycling process does not do any of the following: (i) Contain significant concentrations of any hazardous constituents found in 40 CFR part 261, appendix VIII at levels that are not found in analogous products. (ii) Contain concentrations of hazardous constituents found in 40 CFR part 261, appendix VIII at levels that are significantly elevated from those found in analogous products. (iii) Exhibit a hazardous characteristic as defined in R 299.9212 that analogous products do not exhibit. (b) In determining that a hazardous secondary material is legitimately recycled, a person shall evaluate all factors and consider the legitimacy as a whole. If the evaluation of the considerations in subdivision (a) of this subrule indicate that the factor is not met, it may be an indication that the material is not legitimately recycled. The factor in subdivision (a) of this subrule does not have to be met for the recycling to be considered legitimate. In evaluating the extent to which this factor is met and in determining whether a process that does not meet this factor is still legitimate, persons may consider exposure from toxics in the product, the bioavailability of the toxics in the product, and other relevant considerations.