Standards and criteria for nonwaste 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 subsections 2 or 3, as applicable. If an application is denied, the hazardous secondary material might still be eligible for a solid waste variance or exclusion (for example, one of the solid waste variances under section 33.1-24-01-10). 2. The department may grant a nonwaste determination for hazardous secondary material which 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 will be based on whether the hazardous secondary material is legitimately recycled as specified in section 33.1-24-01-19, and on the following criteria: a. The extent that the management of the hazardous secondary material is part of the continuous primary production process and is not waste treatment; b. Whether the capacity of the production process would use the hazardous secondary material in a reasonable timeframe and ensure that the hazardous secondary material will not be abandoned (for example, based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements); c. Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water, or land at significantly higher levels from either a statistical, or from a health and environmental risk perspective than would otherwise be released by the production process; and d. Other relevant factors that demonstrate 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 section 33.1-24-02-02 or 33.1-24-02-04. 3. The department may grant a nonwaste determination for hazardous secondary material which 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 section 33.1-24-01-19, and on the following criteria: a. Whether market participants treat the hazardous secondary material as a product or intermediate rather than a waste (for example, based on the current positive value of the hazardous secondary material, stability of demand, or any contractual arrangements); b. Whether the chemical and physical identity of the hazardous secondary material is comparable to commercial products or intermediates; c. Whether the capacity of the market would use the hazardous secondary material in a reasonable timeframe and ensure that the hazardous secondary material will not be abandoned (for example, based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements); d. Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water, or land at significantly higher levels from either a statistical, or from a health and environmental risk perspective than would otherwise be released by the production process; and e. Other relevant factors that demonstrate 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 section 33.1-24-02-02 or 33.1-24-02-04.