Definition of solid waste

1. A solid waste is: a. Any discarded material that is not excluded by subsection 1 of section 33.1-24-02-04 or that is not excluded by variance granted under sections 33.1-24-01-09 and 33.1-24-01-10 or that is not excluded by a nonwaste determination under sections 33.1-24-01-09 and 33.1-24-01-17. b. A discarded material is any material which is: (1) Abandoned, as explained in subsection 2; (2) Recycled, as explained in subsection 3; (3) Considered inherently wastelike, as explained in subsection 4; or (4) A military munition identified as a solid waste in section 33.1-24-05-822. 2. Materials are solid wastes if they are abandoned by being: a. Disposed of; b. Burned or incinerated; c. Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or incinerated; or d. Sham recycled, as explained in subsection 7. 3. Materials are solid wastes if they are recycled or accumulated, stored, or treated before recycling as specified in subdivisions a through d. a. Used in a manner constituting disposal. (1) Materials noted with a "*" in column 1 of table 1 are solid wastes when they are: (a) Applied to or placed on the land in a manner that constitutes disposal; or (b) Used to produce products that are applied to or placed on the land or are otherwise contained in products that are applied to or placed on the land (in which case the product itself remains a solid waste). (2) However, commercial chemical products listed in section 33.1-24-02-18 are not solid wastes if they are applied to the land and that is their ordinary manner of use. b. Burning for energy recovery. (1) Materials noted with a "*" in column 2 of table 1 are solid wastes when they are: (a) Burned to recover energy; or (b) Used to produce a fuel or are otherwise contained in fuels (in which case the fuel itself remains a solid waste). (2) However, commercial chemical products listed in section 33.1-24-02-18 are not solid wastes if they are themselves fuels. c. Reclaimed. Materials noted with a "*" in column 3 of table 1 are solid wastes when reclaimed unless they meet the requirements of subdivision q, x, y, or z of subsection 1 of section 33.1-24-02-04. Materials noted with a "-" in column 3 of table 1 are not solid wastes when reclaimed. d. Accumulated speculatively. Materials noted with a "*" in column 4 of table 1 are solid wastes when accumulated speculatively. 4. Inherently wastelike materials. The following materials are solid wastes when they are recycled in any manner: a. Hazardous waste numbers F020, F021 (unless used as an ingredient to make a product at the site of generation), F022, F023, F026, and F028. b. Secondary materials fed to a halogen acid furnace that exhibit a characteristic of a hazardous waste or are listed as a hazardous waste as defined in sections 33.1-24-02-10 through 33.1-24-02-19, except for brominated material that meets the following criteria: (1) The material must contain a bromine concentration of at least forty-five percent; (2) The material must contain less than a total of one percent of toxic organic compounds listed in appendix V; and (3) The material is processed continually onsite in the halogen acid furnace via direct conveyance (hard piping). c. The department will use the following criteria to add wastes to that list: (1) The materials: (a) Are ordinarily disposed of, burned, or incinerated; or (b) Contain toxic constituents listed in appendix V and these constituents are not ordinarily found in raw materials or products for which the materials substitute (or are found in raw materials or products in smaller concentrations) and are not used or reused during the recycling process; and (2) The material may pose a substantial hazard to human health and the environment when recycled. 5. Materials that are not solid waste when recycled: a. Materials are not solid waste when they can be shown to be legitimately recycled as specified in section 33.1-24-01-19 by being: (1) Used or reused as ingredients in an industrial process to make a product provided the materials are not being reclaimed; (2) Used or reused as effective substitutes for commercial products; or (3) Returned to the original process from which they are generated, without first being reclaimed or land disposed. The material must be returned as a substitute for feedstock materials. If the original process to which the material is returned is a secondary process, the materials must be managed such that there is no placement on the land. If the materials are generated and reclaimed within the primary mineral processing industry, the conditions of the exclusion found at subdivision q of subsection 1 of section 33.1-24-02-04 apply rather than this subsection. b. The following materials are solid wastes, even if the recycling involves use, reuse, or return to the original process (described in paragraphs 1 through 3 of subdivision a): (1) Materials used in a manner constituting disposal, or used to produce products that are applied to the land; (2) Materials burned for energy recovery, used to produce a fuel, or contained in fuels; (3) Materials accumulated speculatively; or (4) Materials listed in subdivisions a and b of subsection 4. 6. Documentation of claims that materials are not solid wastes or are conditionally exempt from regulation. Respondents in actions to enforce regulations implementing North Dakota Century Code chapter 23.1-04 who raise a claim that a certain material is not a solid waste, or is conditionally exempt from regulation, must demonstrate that there is a known market or disposition for the material, and that they meet the terms of exclusion or exemption. In doing so, they must provide appropriate documentation (such as contracts showing that a second person uses the material as an ingredient in a production process) to demonstrate that the material is not a waste, or is exempt from the regulation. In addition, owners or operators of facilities claiming that they actually are recycling materials must show that they have the necessary equipment to do so. 7. Sham recycling. A hazardous secondary material found to be sham recycled is considered discarded and a solid waste. Sham recycling is recycling that is not legitimate recycling as defined in section 33.1-24-01-19. TABLE 1 Use Constituting Energy Recovery/Fuel Reclamation Speculative Disposal (Subdivision a of Subsection 3 of Section 33.1-24-02-02) (Subdivision b of Subsection 3 of Section 33.1-24-02-02) (Subdivision c of Subsection 3 of Section 33.1-24-02-021) Accumulation (Subdivision d of Subsection 3 of Section 33.1-24-02-02) (1) (2) (3) (4) Spent materials (*) (*) (*) (*) Sludges (listed in Section 33.1-24-02-16 or Section 33.1-24-02-17 of Chapter 33.1-24-02) (*) (*) (*) (*) Sludges exhibiting a characteristic of hazardous waste (*) (*) - (*) Byproducts (listed in Section 33.1-24-02-16 or Section 33.1-24-02-17 of Chapter 33.1-24-02) (*) (*) (*) (*) Byproducts exhibiting a characteristic of hazardous waste (*) (*) - (*) Commercial chemical products (listed in Section 33.1-24-02-18 of Chapter 33.1-24-02) (*) (*) - - Scrap metal that is not excluded under subdivision m of subsection 1 of Section 33.1-24-02-04 (*) (*) (*) (*) 1Except as provided by Subdivision q, x, y, or z of Subsection 1 of Section 33.1-24-02-04. NOTE: The terms "spent materials", "sludges", "byproducts", "scrap metal", and "processed scrap metal" are defined in Section 33.1-24-02-01.