Standards and criteria for variances from classification as a solid waste

1. The department may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year. If a variance is granted, it is valid only for the following year, but can be renewed, on an annual basis, by filing a new application. The department's decision will be based on the following criteria: a. The manner in which the material is expected to be recycled, when the material is expected to be recycled, and whether this expected disposition is likely to occur (for example, because of past practice, market factors, the nature of the material, or contractual arrangements for recycling); b. The reason the applicant has accumulated the material for one or more years without recycling seventy-five percent of the volume accumulated at the beginning of the year; c. The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled; d. The extent to which the material is handled to minimize loss; and e. Other relevant factors. 2. The department may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feed stock within the original production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria: a. How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials; b. The extent to which the material is handled before reclamation to minimize loss; c. The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process; d. The location of the reclamation operation in relation to the production process; e. Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form; f. Whether the person who generates the material also reclaims it; and g. Other relevant factors. 3. The department may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed, but must be reclaimed further before recovery is completed, if the partial reclamation has produced a commodity-like material. A determination that a partially reclaimed material for which the variance is sought is commodity-like will be based on whether the hazardous secondary material is legitimately recycled as specified in section 33.1-24-01-19 and on whether all of the following decision criteria are satisfied: a. Whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste; b. Whether the partially reclaimed material has sufficient economic value that it will be purchased for further reclamation; c. Whether the partially reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials which is used in subsequent production steps; d. Whether there is a market for the partially reclaimed material as demonstrated by known customer or customers who are further reclaiming the material (for example, records of sales or contracts, or both, and evidence of subsequent use, such as bills of lading); and e. Whether the partially reclaimed material is handled to minimize loss. 4. The department may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that are transferred for reclamation under subdivision y of subsection 1 of section 33.1-24-02-04 and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a hazardous waste permit or interim status standards. The department's decision will be based on the following criteria: a. The reclamation facility or intermediate facility must demonstrate the reclamation process for the hazardous secondary materials is legitimate pursuant to section 33.1-24-01-19; b. The reclamation facility or intermediate facility must satisfy the financial assurance condition in subparagraph f of paragraph 6 of subdivision y of subsection 1 of section 33.1-24-02-04; c. The reclamation facility or intermediate facility must not be subject to a formal enforcement action in the previous three years and not be classified as a significant noncomplier under Resource Conservation and Recovery Act Subtitle C, or must provide credible evidence the facility will manage the hazardous secondary materials properly. Credible evidence may include a demonstration the facility has taken remedial steps to address the violations and prevent future violations, or the violations are not relevant to the proper management of the hazardous secondary materials; d. The intermediate or reclamation facility must have the equipment and trained personnel needed to safely manage the hazardous secondary material and must meet emergency preparedness and response requirements under sections 33.1-24-02-120 through 33.1-24-02-129; e. If residuals are generated from the reclamation of the excluded hazardous secondary materials, the reclamation facility must have the permits required (if any) to manage the residuals, have a contract with an appropriately permitted facility to dispose of the residuals or present credible evidence the residuals will be managed in a manner that is protective of human health and the environment; and f. The intermediate or reclamation facility must address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment (for example, releases that are not covered by a permit, such as a permit to discharge to water or air), which may include potential releases through surface transport by precipitation runoff, releases to soil and groundwater, windblown dust, fugitive air emissions, and catastrophic unit failures, and must include consideration of potential cumulate risks from other nearby potential stressors.