NDAC 33.1-24-02-04
Exclusions
Cite as N.D. Admin. Code § 33.1-24-02-04
1.
Materials that are not solid wastes. The following materials are not solid wastes for the
purpose of this chapter:
a.
Any mixture of domestic sewage and other wastes that passes through a sewer system
to a publicly owned treatment works for treatment, except as prohibited by section
33.1-24-05-315 and chapter 33.1-16-01.1. “Domestic sewage” means untreated sanitary
wastes that pass through a sewer system.
b.
Industrial wastewater discharges that are point source discharges subject to regulation
under subsections 18 and 19 of North Dakota Century Code section 61-28-04.
(Comment: This exclusion applies only to the actual point source discharge. It does not
exclude industrial wastewaters while they are being collected, stored, or treated before
discharge, nor does it exclude sludges that are generated by industrial wastewater
treatment.)
c.
Irrigation return flows.
d.
Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of
1954, as amended [42 U.S.C. 2011 et seq.].
e.
Materials subjected to in situ mining techniques which are not removed from the ground
as part of the extraction process.
f.
Pulping liquors (for example, black liquor) that are reclaimed in a pulping liquor recovery
furnace and then reused in the pulping process, unless it is accumulated speculatively as
defined in subsection 3 of section 33.1-24-02-01.
g.
Spent sulfuric acid used to produce virgin sulfuric acid, unless it is accumulated
speculatively as defined in subsection 3 of section 33.1-24-02-01.
h.
Secondary materials that are reclaimed and returned to the original process or processes
in which they were generated where they are reused in the production process provided:
(1)
Only tank storage is involved, and the entire process through completion of
reclamation is closed by being entirely connected with pipes or other comparable
enclosed means of conveyance;
(2)
Reclamation does not involve controlled flame combustion (such as occurs in
boilers, industrial furnaces, or incinerators);
(3)
The secondary materials are never accumulated in such tanks for over
twelve months without being reclaimed; and
(4)
The reclaimed material is not used to produce a fuel, or used to produce products
that are used in a manner constituting disposal.
i.
Wood preserving:
(1)
Spent wood preserving solutions that have been reclaimed and are reused for their
original intended purpose; and
(2)
Wastewaters from the wood preserving process that have been reclaimed and are
reused to treat wood.
(3)
Prior to reuse, the wood preserving wastewaters and spent wood preserving
solutions described in paragraphs 1 and 2, so long as they meet all of the following
conditions:
(a)
The wood preserving wastewaters and spent wood preserving solutions are
reused onsite at waterborne plants in the production process for their original
intended purpose;
(b)
Prior to reuse, the wastewaters and spent wood preserving solutions are
managed to prevent release to either land or ground water or both;
(c)
Any unit used to manage wastewaters and spent wood preserving solutions, or
both, prior to reuse can be visually or otherwise determined to prevent such
releases;
(d)
Any drip pad used to manage the wastewaters and spent wood preserving
solutions, or both, prior to reuse complies with the applicable standards in
subsection 5 of section 33.1-24-06-16, regardless of whether the plant
generates a total of less than one hundred kilograms per month of hazardous
waste; and
(e)
Prior to operating pursuant to this exclusion, the plant owner or operator
prepares a one-time notification stating that the plant intends to claim the
exclusion, giving the date on which the plant intends to begin operating under
the exclusion, and containing the following language:
"I have read the applicable regulation establishing an exclusion for wood
preserving wastewaters and spent wood preserving solutions and
understand it requires me to comply at all times with the conditions set out
in the regulation."
The plant must maintain a copy of that document in its onsite records until
closure of the facility. The exclusion applies only so long as the plant meets all
of the conditions. If the plant goes out of compliance with any condition, it may
apply to the department for reinstatement. The department may reinstate the
exclusion upon finding that the plant has returned to compliance with all
conditions and that violations are not likely to recur.
j.
Hazardous waste numbers K060, K087, K141, K142, K143, K144, K145, K147, and
K148, and any wastes from the coke byproducts processes that are hazardous only
because they exhibit the toxicity characteristic specified in section 33.1-24-02-14 when,
subsequent to generation, these materials are recycled to coke ovens, to the tar recovery
process as a feedstock to produce coal tar, or mixed with coal tar prior to the tar's sale or
refining. This exclusion is conditioned on there being no land disposal of the wastes from
the point they are generated to the point they are recycled to coke ovens or tar recovery
or refining processes, or mixed with coal tar.
k.
Nonwastewater splash condenser dross residue from the treatment of K061 in high
temperature metals recovery units, provided it is shipped in drums (if shipped) and not
land disposed before recovery.
l.
Materials considered:
(1)
Oil-bearing hazardous secondary materials (for example, sludges, byproducts, or
spent materials) that are generated at a petroleum refinery (standard industrial code
2911) and are inserted into the petroleum refining process (standard industrial code
2911 - including distillation, catalytic cracking, fractionation, or thermal cracking
units (for example, cokers)) unless the material is placed on the land, or
speculatively accumulated before being so recycled. Materials inserted into thermal
cracking units are excluded under this paragraph, provided that the coke product
also does not exhibit a characteristic of hazardous waste. Oil-bearing hazardous
secondary materials may be inserted into the same petroleum refinery where they
are generated, or sent directly to another petroleum refinery, and still be excluded
under this provision. Except as provided in paragraph 2, oil-bearing hazardous
secondary materials generated elsewhere in the petroleum industry (for example,
from sources other than petroleum refineries) are not excluded under this
paragraph. Residuals generated from processing or recycling materials excluded
under this paragraph, where such materials as generated would have otherwise met
a listing under sections 33.1-24-02-15 through 33.1-24-02-19, are designated as
F037 listed wastes when disposed or intended for disposal.
(2)
Recovered oil that is recycled in the same manner and with the same conditions as
described in paragraph 1. Recovered oil is oil that has been reclaimed from
secondary materials, including wastewater, generated from normal petroleum
industry practices, including refining, exploration and production, bulk storage, and
transportation incident thereto (standard industrial codes 1311, 1321, 1381, 1382,
1389, 2911, 4612, 4613, 4922, 4923, 4789, 5171, and 5172). Recovered oil does
not include oil-bearing hazardous wastes listed in sections 33.1-24-02-15 through
33.1-24-02-19; however, oil recovered from such wastes may be considered
recovered oil. Recovered oil does not include used oil as defined in section
33.1-24-05-600.
m.
Excluded scrap metal (processed scrap metal, unprocessed home scrap metal, and
unprocessed prompt scrap metal) being recycled.
n.
Shredded circuit boards being recycled provided that they are:
(1)
Stored in containers sufficient to prevent a release to the environment prior to
recovery; and
(2)
Free of mercury switches, mercury relays, and nickel-cadmium batteries and lithium
batteries.
o.
Condensates derived from the overhead gases from kraft mill stream strippers that are
used to comply with 40 CFR 63.446(e). The exemption applies only to combustion at the
mill generating the condensates.
p.
[Reserved].
q.
Spent materials (as defined in section 33.1-24-02-01) (other than hazardous wastes
listed in sections 33.1-24-02-15 through 33.1-24-02-19) generated within the primary
mineral processing industry from which minerals, acids, cyanide, water, or other values
are recovered by mineral processing, or by beneficiation, provided that:
(1)
The spent material is legitimately recycled to recover minerals, acids, cyanide,
water, or other values;
(2)
The spent material is not accumulated speculatively;
(3)
Except as provided in paragraph 4, the spent material is stored in tanks, containers,
or buildings meeting the following minimum integrity standards: a building must be
an engineered structure with a floor, walls, and a roof all of which are made of
nonearthen materials providing structural support (except smelter buildings may
have partially earthen floors provided the spent material is stored on the nonearthen
portion), and have a roof suitable for diverting rainwater away from the foundation; a
tank must be freestanding, not be a surface impoundment (as defined in section
33.1-24-01-04), and be manufactured of a material suitable for containment of its
contents; a container must be freestanding and be manufactured of a material
suitable for containment of its contents. If tanks or containers contain any particulate
which may be subject to wind dispersal, the owner or operator must operate these
units in a manner which controls fugitive dust. Tanks, containers, and buildings must
be designed, constructed, and operated to prevent significant releases to the
environment of these materials.
(4)
The department may make a site-specific determination, after public review and
comment, that only solid mineral processing spent material may be placed on pads,
rather than in tanks, containers, or buildings. Solid mineral processing spent
materials do not contain any free liquid. The decisionmaker must affirm that pads
are designed, constructed, and operated to prevent significant releases of the spent
material into the environment. Pads must provide the same degree of containment
afforded by the hazardous waste tanks, containers, and buildings eligible for
exclusion.
(a)
The decisionmaker must also consider if storage on pads poses the potential
for significant releases via ground water, surface water, and air exposure
pathways. Factors to be considered for assessing the ground water, surface
water, and air exposure pathways are the volume and physical and chemical
properties of the spent material, including its potential for migration off the pad;
the potential for human or environmental exposure to hazardous constituents
migrating from the pad via each exposure pathway; and the possibility and
extent of harm to human and environmental receptors via each exposure
pathway.
(b)
Pads must meet the following minimum standards: be designed of nonearthen
material that is compatible with the chemical nature of the mineral processing
spent material, capable of withstanding physical stresses associated with
placement and removal; have run-on or runoff controls, or both; be operated in
a manner which controls fugitive dust; and have integrity assurance through
inspections and maintenance programs.
(c)
Before making a determination under this paragraph, the department must
provide notice and the opportunity for comment to all persons potentially
interested in the determination. This can be accomplished by placing notice of
this action in major local newspapers or broadcasting notice over local radio
stations.
(5)
The owner or operator provides notice to the department, providing the following
information: the types of materials to be recycled, the type and location of the
storage units and recycling processes, and the annual quantities expected to be
placed in land-based units. This notification must be updated when there is a
change in the type of materials recycled or the location of the recycling process.
(6)
For purposes of subdivision g of subsection 2, mineral processing spent materials
must be the result of mineral processing and may not include any listed hazardous
wastes. Listed hazardous wastes and characteristic hazardous wastes generated by
nonmineral processing industries are not eligible for the conditional exclusion from
the definition of solid waste.
r.
Petrochemical recovered oil from an associated organic chemical manufacturing facility,
where the oil is to be inserted into the petroleum refining process (standard industrial
code 2911) along with normal petroleum refinery process streams, provided:
(1)
The oil is hazardous only because it exhibits the characteristic of ignitability (as
defined in section 33.1-24-02-11) or toxicity for benzene (as defined in section
33.1-24-02-14, hazardous waste code D018), or both; and
(2)
The oil generated by the organic chemical manufacturing facility is not placed on the
land, or speculatively accumulated before being recycled into the petroleum refining
process. An "associated organic chemical manufacturing facility" is a facility where
the primary standard industrial code is 2869, but where operations may also include
standard industrial codes 2821, 2822, and 2865; and is physically colocated with a
petroleum refinery; and where the petroleum refinery to which the oil being recycled
is returned also provides hydrocarbon feedstocks to the organic chemical
manufacturing facility. "Petrochemical recovered oil" is oil that has been reclaimed
from secondary materials (for example, sludges, byproducts, or spent materials,
including wastewater) from normal organic chemical manufacturing operations, as
well as oil recovered from organic chemical manufacturing processes.
s.
Spent caustic solutions from petroleum refining liquid treating processes used as a
feedstock to produce cresylic or naphthenic acid unless the material is placed on the
land, or accumulated speculatively as defined in subsection 3 of section 33.1-24-02-01.
t.
Hazardous secondary materials used to make zinc fertilizers, provided that the following
conditions specified are satisfied:
(1)
Hazardous secondary materials used to make zinc micronutrient fertilizers must not
be accumulated speculatively, as defined in subdivision h of subsection 3 of section
33.1-24-02-01.
(2)
Generators and intermediate handlers of zinc-bearing hazardous secondary
materials that are to be incorporated into zinc fertilizers must:
(a)
Submit a one-time notice to the department, which contains the name,
address, and identification number of the generator or intermediate handler
facility, provides a brief description of the secondary material that will be
subject to the exclusion, and identifies when the manufacturer intends to begin
managing excluded, zinc-bearing hazardous secondary materials under the
conditions specified in this subdivision.
(b)
Store the excluded secondary material in tanks, containers, or buildings that
are constructed and maintained in a way that prevents releases of the
secondary materials into the environment. At a minimum, any building used for
this purpose must be an engineered structure made of nonearthen materials
that provide structural support, and must have a floor, walls, and a roof that
prevent wind dispersal and contact with rainwater. Tanks used for this purpose
must be structurally sound and, if outdoors, must have roofs or covers that
prevent contact with wind and rain. Containers used for this purpose must be
kept closed except when it is necessary to add or remove material, and must
be in sound condition. Containers that are stored outdoors must be managed
within storage areas that:
[1]
Have containment structures or systems sufficiently impervious to contain
leaks, spills, and accumulated precipitation;
[2]
Provide for effective drainage and removal of leaks, spills, and
accumulated precipitation; and
[3]
Prevent run-on into the containment system.
(c)
With each offsite shipment of excluded hazardous secondary materials,
provide written notice to the receiving facility that the material is subject to the
conditions of this subdivision.
(d)
Maintain at the generator's or intermediate handler's facility for no less than
three years records of all shipments of excluded hazardous secondary
materials. For each shipment these records must at a minimum contain the
following information:
[1]
Name of the transporter and date of the shipment;
[2]
Name and address of the facility that received the excluded material, and
documentation confirming receipt of the shipment; and
[3]
Type and quantity of excluded secondary material in each shipment.
(3)
Manufacturers of zinc fertilizers or zinc fertilizer ingredients made from excluded
hazardous secondary materials must:
(a)
Store excluded hazardous secondary materials in accordance with the storage
requirements for generators and intermediate handlers, as specified in
subparagraph b of paragraph 2.
(b)
Submit a one-time notification to the department that, at a minimum, specifies
the name, address, and identification number of the manufacturing facility, and
identifies when the manufacturer intends to begin managing excluded,
zinc-bearing hazardous secondary materials under the conditions specified in
this subdivision.
(c)
Maintain for a minimum of three years records of all shipments of excluded
hazardous secondary materials received by the manufacturer, which must at a
minimum identify for each shipment the name and address of the generating
facility, name of transporter and date the materials were received, the quantity
received, and a brief description of the industrial process that generated the
material.
(d)
Submit to the department an annual report that identifies the total quantities of
all excluded hazardous secondary materials that were used to manufacture
zinc fertilizers or zinc fertilizer ingredients in the previous year, the name and
address of each generating facility, and the industrial process or processes
from which they were generated. The annual report shall be submitted by
March first of every year.
(4)
Nothing in this subdivision preempts, overrides, or otherwise negates the provision
in section 33.1-24-03-02, which requires any person who generates a solid waste to
determine if that waste is a hazardous waste.
(5)
Interim status and permitted storage units that have been used to store only
zinc-bearing hazardous wastes prior to the submission of the one-time notice
described in subparagraph a of paragraph 2, and that afterward will be used only to
store hazardous secondary materials excluded under this subdivision, are not
subject to the closure requirements of sections 33.1-24-05-01 through
33.1-24-05-190, 33.1-24-05-300 through 33.1-24-05-524, 33.1-24-05-550 through
33.1-24-05-559, and 33.1-24-05-800 through 33.1-24-05-819 and the applicable
requirements of subsection 5 of section 33.1-24-06-16.
u.
Zinc fertilizers made from hazardous wastes, or hazardous secondary materials that are
excluded under subdivision t, provided that:
(1)
The fertilizers meet the following contaminant limits:
(a)
For metal contaminants:
Constituent
Maximum Allowable Total Concentration in Fertilizer, Per Unit
(1 Percent) of Zinc (ppm)
Arsenic
0.3
Cadmium
1.4
Chromium
0.6
Lead
2.8
Mercury
0.3
(b)
For dioxin contaminants the fertilizer must contain no more than eight parts per
trillion of dioxin, measured as toxic equivalent (TEQ).
(2)
The manufacturer performs sampling and analysis of the fertilizer product to
determine compliance with the contaminant limits for metals no less than every
six months, and for dioxins no less than every twelve months. Testing must also be
performed whenever changes occur to manufacturing processes or ingredients that
could significantly affect the amounts of contaminants in the fertilizer product. The
manufacturer may use any reliable analytical method to demonstrate that no
constituent of concern is present in the product at concentrations above the
applicable limits. It is the responsibility of the manufacturer to ensure that the
sampling and analysis are unbiased, precise, and representative of the product or
products introduced into commerce.
(3)
The manufacturer maintains for no less than three years records of all sampling and
analyses performed for purposes of determining compliance with the requirements
of paragraph 2. Such records must at a minimum include:
(a)
The dates and times product samples were taken and the dates the samples
were analyzed;
(b)
The names and qualifications of the person taking the samples;
(c)
A description of the methods and equipment used to take the samples;
(d)
The name and address of the laboratory facility at which analyses of the
samples were performed;
(e)
A description of the analytical methods used, including any cleanup and
sample preparation methods; and
(f)
All laboratory analytical results used to determine compliance with the
contaminant limits specified in subdivision u.
v.
Used cathode ray tubes:
(1)
Used, intact cathode ray tubes as defined in section 33.1-24-01-04 are not solid
wastes within the United States unless they are disposed, or unless they are
speculatively accumulated as defined in subdivision h of subsection 3 of section
33.1-24-02-01 by cathode ray tube collectors or glass processors.
(2)
Used, intact cathode ray tubes as defined in section 33.1-24-01-04 are not solid
wastes when exported for recycling provided that they meet the requirements of
section 33.1-24-02-26.
(3)
Used, broken cathode ray tubes as defined in section 33.1-24-01-04 are not solid
wastes provided that they meet the requirements of section 33.1-24-02-25.
(4)
Glass removed from cathode ray tubes is not a solid waste provided that it meets
the requirements of subsection 3 of section 33.1-24-02-25.
w.
Solvent-contaminated wipes that are sent for cleaning and reuse are not solid wastes
from the point of generation, provided that:
(1)
The solvent-contaminated wipes, when accumulated, stored, and transported, are
contained in nonleaking, closed containers that are labeled "excluded solvent-
contaminated wipes." The containers must be able to contain free liquids, should
free liquids occur. During accumulation, a container is considered closed when there
is complete contact between the fitted lid and the rim, except when it is necessary to
add or remove solvent-contaminated wipes. When the container is full, or when the
solvent-contaminated wipes are no longer being accumulated, or when the
container is being transported, the container must be sealed with all lids properly
and securely affixed to the container and all openings tightly bound or closed
sufficiently to prevent leaks and emissions;
(2)
The solvent-contaminated wipes may be accumulated by the generator for up to
one hundred eighty days from the start date of accumulation for each container prior
to being sent for cleaning;
(3)
At the point of being sent for cleaning onsite or at the point of being transported
offsite for cleaning, the solvent-contaminated wipes must contain no free liquids as
defined in section 33.1-24-01-04;
(4)
Free liquids removed from the solvent-contaminated wipes or from the container
holding the wipes must be managed according to the applicable regulations found in
chapters 33.1-24-01 through 33.1-24-04 and 33.1-24-06, and sections
33.1-24-05-01 through 33.1-24-05-559, 33.1-24-05-700 through 33.1-24-05-929,
and 33.1-24-05-950 through 33.1-24-05-1149;
(5)
Generators must maintain at the facility the following documentation:
(a)
Name and address of the laundry or dry cleaner that is receiving the solvent-
contaminated wipes;
(b)
Documentation that the 180-day accumulation time limit in paragraph 2 of
subdivision w of subsection 1 of section 33.1-24-02-04 is being met; and
(c)
Description of the process the generator is using to ensure the solvent-
contaminated wipes contain no free liquids at the point of being laundered or
dry cleaned onsite or at the point of being transported offsite for laundering or
dry cleaning;
(6)
The solvent-contaminated wipes are sent to a laundry or dry cleaner whose
discharge, if any, is regulated under sections 301 and 402 or section 307 of the
Clean Water Act.
x.
Hazardous secondary material generated and legitimately reclaimed within the United
States or its territories and under the control of the generator, provided that the material
complies with:
(1)
The hazardous secondary material:
(a)
Is generated and reclaimed at the generating facility (for purposes of this
definition, generating facility means all contiguous property owned, leased, or
otherwise controlled by the hazardous secondary material generator); or
(b)
Is generated and reclaimed at different facilities, if the reclaiming facility is
controlled by the generator or if both the generating facility and the reclaiming
facility are controlled by a person as defined in section 33.1-24-01-04, and if
the generator provides one of the following certifications: "on behalf of [insert
generator facility name], I certify that this facility will send the indicated
hazardous secondary material to [insert reclaimer facility name], which is
controlled by [insert generator facility name] and that [insert name of either
facility] has acknowledged full responsibility for the safe management of the
hazardous secondary material," or "on behalf of [insert generator facility name],
I certify that this facility will send the indicated hazardous secondary material to
[insert reclaimer facility name], that both facilities are under common control,
and that [insert name of either facility] has acknowledged full responsibility for
the safe management of the hazardous secondary material." For purposes of
this subparagraph, "control" means the power to direct the policies of the
facility, whether by the ownership of stock, voting rights, or otherwise, except
that contractors who operate facilities on behalf of a different person as defined
in section 33.1-24-01-04 shall not be deemed to "control" such facilities. The
generating and receiving facilities must both maintain at their facilities for no
less than three years records of hazardous secondary materials sent or
received under this exclusion. In both cases, the records must contain the
name of the transporter, the date of the shipment, and the type and quantity of
the hazardous secondary material shipped or received under the exclusion.
These requirements may be satisfied by routine business records (for
example, financial records, bills of lading, copies of department of
transportation shipping papers, or electronic confirmation); or
(c)
Is generated pursuant to a written contract between a tolling contractor and a
toll manufacturer and is reclaimed by the tolling contractor, if the tolling
contractor certifies the following: "On behalf of [insert tolling contractor name], I
certify that [insert tolling contractor name] has a written contract with [insert toll
manufacturer name] to manufacture [insert name of product or intermediate]
which is made from specified unused materials, and that [insert tolling
contractor name] will reclaim the hazardous secondary materials generated
during this manufacture. On behalf of [insert tolling contractor name], I also
certify that [insert tolling contractor name] retains ownership of, and
responsibility for, the hazardous secondary materials that are generated during
the course of the manufacture, including any releases of hazardous secondary
materials that occur during the manufacturing process." The tolling contractor
must maintain at its facility for no less than three years records of hazardous
secondary materials received pursuant to its written contract with the tolling
manufacturer, and the tolling manufacturer must maintain at its facility for no
less than three years records of hazardous secondary materials shipped
pursuant to its written contract with the tolling contractor. In both cases, the
records must contain the name of the transporter, the date of the shipment,
and the type and quantity of the hazardous secondary material shipped or
received pursuant to the written contract. These requirements may be satisfied
by routine business records (for example, financial records, bills of lading,
copies of department of transportation shipping papers, or electronic
confirmations). For purposes of this subparagraph, tolling contractor means a
person who arranges for the production of a product or intermediate made
from specified unused materials through a written contact with a toll
manufacturer. Toll manufacturer means a person who produces a product or
intermediate made from specified unused materials pursuant to a written
contract with a tolling contractor.
(2)
The following requirements apply to hazardous secondary material managed under
this exclusion:
(a)
The hazardous secondary material is contained as defined in section
33.1-24-01-04. A hazardous secondary material released to the environment is
discarded and a solid waste unless it is immediately recovered for the purpose
of reclamation. Hazardous secondary material managed in a unit with leaks or
other continuing or intermittent unpermitted releases is discarded and a solid
waste.
(b)
The hazardous secondary material is not speculatively accumulated, as
defined in subdivision h of subsection 3 of section 33.1-24-02-01.
(c)
Notice is provided as required by section 33.1-24-01-18.
(d)
The material is not otherwise subject to material-specific management
conditions under subsection 1 when reclaimed, and it is not a spent lead-acid
battery (see sections 33.1-24-05-235 and 33.1-24-05-702).
(e)
Persons performing the recycling of hazardous secondary materials under this
exclusion must maintain documentation of their legitimacy determination
onsite. Documentation must be a written description of how the recycling
meets all four factors in subsection 1 of section 33.1-24-01-19. Documentation
must be maintained for three years after the recycling operation has ceased.
(f)
The emergency preparedness and response requirements found in sections
33.1-24-02-120 through 33.1-24-02-129 are met.
y.
Hazardous secondary material that is generated and then transferred to another person
for the purpose of reclamation is not a solid waste, provided that:
(1)
The material is not speculatively accumulated, as defined in subdivision h of
subsection 3 of section 33.1-24-02-01;
(2)
The material is not handled by any person or facility other than the hazardous
secondary material generator, the transporter, an intermediate facility or a reclaimer,
and, while in transport, is not stored for more than ten days at a transfer facility, as
defined in section 33.1-24-01-04, and is packaged according to applicable
department of transportation regulations at 49 CFR parts 173, 178, and 179 while in
transport;
(3)
The material is not otherwise subject to material-specific management conditions
under subsection 1 when reclaimed, and it is not a spent lead-acid battery (see
sections 33.1-24-05-235 and 33.1-24-05-702);
(4)
The reclamation of the material is legitimate, as specified under section
33.1-24-01-19;
(5)
The hazardous secondary material generator satisfied all of the following conditions;
(a)
The material must be contained as defined in section 33.1-24-01-04. A
hazardous secondary material released to the environment is discarded and a
solid waste unless it is immediately recovered for the purpose of recycling.
Hazardous secondary material managed in a unit with leaks or other
continuing releases is discarded and a solid waste.
(b)
Prior to arranging for transport of hazardous secondary materials to a
reclamation facility where the management of hazardous secondary materials
is not addressed under a hazardous waste permit or interim status standards,
the hazardous secondary material generator shall make reasonable efforts to
ensure each reclaimer intends to properly and legitimately reclaim the
hazardous secondary material and not discard it; and that each reclaimer will
manage the hazardous secondary material in a manner that is protective of
human health and the environment. If the hazardous secondary material will be
passing through an intermediate facility where the management of the
hazardous secondary materials is not addressed under a hazardous waste
permit or interim status standards, the hazardous secondary material
generator shall make contractual arrangements with the intermediate facility to
ensure that the hazardous secondary material is sent to the reclamation facility
identified by the hazardous secondary material generator, and the hazardous
secondary material generator shall perform reasonable efforts to ensure that
the intermediate facility will manage the hazardous secondary material in a
manner that is protective of human health and the environment. Reasonable
efforts must be repeated at a minimum of every three years for the hazardous
secondary material generator to claim the exclusion and to send the hazardous
secondary materials to each reclaimer and any intermediate facility. In making
these reasonable efforts, the generator may use any credible evidence
available, including information gathered by the hazardous secondary material
generator, provided by the reclaimer or intermediate facility, or provided by a
third party, or provided by both. The hazardous secondary material generator
shall answer affirmatively all of the following questions for each reclamation
facility and any intermediate facility:
[1]
Does the available information indicate the reclamation process is
legitimate pursuant to section 33.1-24-01-19?
[2]
Does the publicly available information indicate the reclamation facility,
and any intermediate facility, used by the hazardous secondary material
generator notified the appropriate authorities of hazardous secondary
materials reclamation activities pursuant to section 33.1-24-01-18, and
have they notified the appropriate authorities the financial assurance
condition has been satisfied?
[3]
Does the publicly available information indicate the reclamation facility, or
any intermediate facility, used by the secondary material generator has
not had any formal enforcement actions taken against the facility in the
previous three years for violations of North Dakota hazardous waste
rules?
[4]
Does the available information indicate the reclamation facility, and any
intermediate facility, used by the hazardous secondary material generator
have the equipment and trained personnel to safely recycle the
hazardous secondary material?
[5]
If residuals are generated from the reclamation of the excluded hazardous
secondary materials, does the reclamation facility have the permits
required to manage the residuals? If not, does the reclamation facility
have a contract with an appropriately permitted facility to dispose of the
residuals? If not, does the hazardous secondary material generator have
credible evidence the residuals will be managed in a manner that is
protective of human health and the environment?
(c)
The hazardous secondary material generator must maintain at the generating
facility for no less than three years records of all offsite shipments of hazardous
secondary materials. For each shipment, these records must, at a minimum,
contain the following information:
[1]
Name of the transporter and date of the shipment;
[2]
Name and address of each reclaimer and, if applicable, the name and
address of each intermediate facility to which the hazardous secondary
material was sent; and
[3]
The type and quantity of hazardous secondary material in the shipment.
(d)
The hazardous secondary material generator must maintain at the generating
facility for no less than three years confirmations of receipt from each reclaimer
and, if applicable, each intermediate facility for all offsite shipments of
hazardous secondary materials. Confirmations of receipt must include the
name and address of the reclaimer or intermediate facility, the type and
quantity of the hazardous secondary materials received and the date which the
hazardous secondary materials were received. This requirement may be
satisfied by routine business records (for example, financial records, bills of
lading, copies of department of transportation shipping papers, or electronic
confirmations of receipt).
(e)
The hazardous secondary material generator must comply with the emergency
preparedness and response conditions in sections 33.1-24-02-120 through
33.1-24-02-129.
(6)
Reclaimers of hazardous secondary material excluded from regulation under this
exclusion and intermediate facilities as defined in section 33.1-24-01-04 satisfy all of
the following conditions:
(a)
The reclaimer and intermediate facility must maintain at its facility for no less
than three years records of all shipments of hazardous secondary material that
were received at the facility and, if applicable, for all shipments of hazardous
secondary materials that were received and subsequently sent offsite from the
facility for further reclamation. For each shipment, these records must at a
minimum contain the following information:
[1]
Name of the transporter and date of the shipment;
[2]
Name and address of the hazardous secondary material generator and, if
applicable, the name and address of the reclaimer or intermediate facility
which the hazardous secondary materials were received from;
[3]
The type and quantity of hazardous secondary material in the shipment;
and
[4]
For hazardous secondary materials that, after being received by the
reclaimer or intermediate facility, were subsequently transferred offsite for
further reclamation, the name and address of the subsequent reclaimer
and, if applicable, the name and address of each intermediate facility to
which the hazardous secondary material was sent.
(b)
The intermediate facility must send the hazardous secondary material to the
reclaimer or reclaimers designated by the hazardous secondary materials
generator.
(c)
The reclaimer and intermediate facility must send to the hazardous secondary
material generator confirmations of receipt for all offsite shipments of
hazardous secondary materials. Confirmations of receipt must include the
name and address of the reclaimer or intermediate facility, the type and
quantity of the hazardous secondary materials received and the date which the
hazardous secondary materials were received. This requirement may be
satisfied by routine business records (for example, financial records, bills of
lading, copies of department of transportation shipping papers, or electronic
confirmations of receipt).
(d)
The reclaimer and intermediate facility must manage the hazardous secondary
material in a manner that is at least as protective as that employed for
analogous raw material and must be contained. An "analogous raw material" is
a raw material for which a hazardous secondary material is a substitute and
serves the same function and has similar physical and chemical properties as
the hazardous secondary material.
(e)
Any residuals that are generated from reclamation processes will be managed
in a manner that is protective of human health and the environment. If any
residuals exhibit a hazardous characteristic according to sections
33.1-24-02-10 through 33.1-24-02-14, or if the residuals themselves are
specifically listed in sections 33.1-24-02-15 through 33.1-24-02-19, such
residuals are hazardous wastes and must be managed in accordance with the
applicable requirements of chapters 33.1-24-01 through 33.1-24-04, sections
33.1-24-05-01
through
33.1-24-05-559,
33.1-24-05-800
through
33.1-24-05-929, 33.1-24-05-950 through 33.1-24-05-1149, subsection 5 of
section 33.1-24-06-16 and chapter 33.1-24-06.
(f)
The reclaimer and intermediate facility have financial assurance as required
under sections 33.1-24-02-33 through 33.1-24-02-42.
(g)
The reclaimer and intermediate facility have been granted a variance under
subsection 4 of section 33.1-24-01-10 or have a hazardous waste permit or
interim status standards that address the management of the hazardous
secondary materials; and
(7)
All persons claiming the exclusion under this subdivision provide notification as
required under section 33.1-24-01-18.
z.
Hazardous secondary material that is generated and then transferred to another person
for the purpose of remanufacturing is not a solid waste, provided that:
(1)
The hazardous secondary material consists of one or more of the following spent
solvents: toluene, xylenes, ethylbenzene, 1,2,4-trimethylbenzene, chlorobenzene,
n-hexane, cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform,
chloromethane, dichloromethane, methyl isobutyl ketone, NN-dimethylformamide,
tetrahydrofuran, n-butyl alcohol, ethanol, and methanol;
(2)
The hazardous secondary material originated from using one or more of the
solvents listed in paragraph 1, in a commercial grade for reacting, extracting,
purifying, or blending chemicals (or for rinsing out the process lines associated with
these functions) in the pharmaceutical manufacturing (NAICS 325412), basic
organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing
(NAICS 325211), and the paints and coatings manufacturing sectors (NAICS
325510).
(3)
The hazardous secondary material generator sends the hazardous secondary
material spent solvents listed in paragraph 1 to a remanufacturer in the
pharmaceutical manufacturing (NAICS 325412), basic organic chemical
manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211),
or the paints and coatings manufacturing sectors (NAICS 325510).
(4)
After remanufacturing one or more of the solvents listed in paragraph 1, the use of
the remanufactured solvent shall be limited to reacting, extracting, purifying, or
blending chemicals (or for rinsing out the process lines associated with these
functions) in the pharmaceutical manufacturing (NAICS 325412), basic organic
chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS
325211), and the paints and coatings manufacturing sectors (NAICS 325510) or to
using them as ingredients in a product. These allowed uses correspond to chemical
functional uses enumerated under the chemical data reporting rule of the Toxic
Substances Control Act [40 CFR parts 704, 710-711], including industrial function
codes U015 (solvents consumed in a reaction to produce other chemicals) and
U030 (solvents become part of the mixture);
(5)
After remanufacturing one or more of the solvents listed in paragraph 1, the use of
the remanufactured solvent does not involve cleaning or degreasing oil, grease, or
similar material from textiles, glassware, metal surfaces, or other articles. These
disallowed continuing uses correspond to chemical functional uses in industrial
function code U029 under the chemical data reporting rule of the Toxic Substances
Control Act; and
(6)
Both the hazardous secondary material generator and the remanufacturer must:
(a)
Notify the department and update the notification every two years per section
33.1-24-01-18;
(b)
Develop and maintain an up-to-date remanufacturing plan which identifies:
[1]
The name, address, and identification number of the generator or
generators and the remanufacturer or remanufacturers;
[2]
The types and estimated annual volumes of spent solvents to be
remanufactured;
[3]
The processes and industry sectors that generate the spent solvents;
[4]
The specific uses and industry sectors for the remanufactured solvents;
and
[5]
Certification from the remanufacturer stating "On behalf of [insert
remanufacturer facility name], I certify that this facility is a remanufacturer
under pharmaceutical manufacturing (NAICS 325412), basic organic
chemical manufacturing (NAICS 325199), plastics and resins
manufacturing (NAICS 325211), or the paints and coatings manufacturing
sectors (NAICS 325510), and will accept the spent solvent or solvents for
the sole purpose of remanufacturing into commercial-grade solvent or
solvents that will be used for reacting, extracting, purifying, or blending
chemicals (or for rinsing out the process lines associated with these
functions), or for the use as product ingredient or ingredients. I also certify
that the remanufacturing equipment, vents, and tanks are equipped with
and are operating air emission controls in compliance with the appropriate
Clean Air Act regulations under 40 CFR Part 60, Part 61 or Part 63, or,
absent such Clean Air Act standards for the particular operation or piece
of equipment covered by the remanufacturing exclusion, are in
compliance with the appropriate standards in sections 33.1-24-02-170
through 33.1-24-02-179 (vents), sections 33.1-24-02-180 through
33.1-24-02-199 (equipment), and sections 33.1-24-02-200 through
33.1-24-02-214 (tank storage)";
(c)
Maintain records of shipments and confirmations of receipts for a period of
three years from the dates of the shipments;
(d)
Prior to remanufacturing, store the hazardous spent solvents in tanks or
containers that meet technical standards found in sections 33.1-24-02-50
through 33.1-24-02-59 and sections 33.1-24-02-60 through 33.1-24-02-74, with
the tanks and containers being labeled or otherwise having an immediately
available record of material being stored;
(e)
During remanufacturing, and during storage of the hazardous secondary
materials prior to remanufacturing, the remanufacturer certifies that the
remanufacturing equipment, vents, and tanks are equipped with and are
operating air emission controls in compliance with the appropriate Clean Air Act
regulations under 40 CFR parts 60, 61, or 63; or, absent such Clean Air Act
standards for the particular operation or piece of equipment covered by the
remanufacturing exclusion, are in compliance with the appropriate standards in
sections 33.1-24-02-170 through 33.1-24-02-179 (vents), sections
33.1-24-02-180 through 33.1-24-02-199 (equipment), and sections
33.1-24-02-200 through 33.1-24-02-214 (tank storage); and
(f)
Meet the requirements prohibiting speculative accumulation per subdivision h
of subsection 3 of section 33-24-02-01.
2.
Solid wastes that are not hazardous wastes. The following solid wastes are not hazardous
wastes:
a.
Household waste, including household waste that has been collected, transported,
stored, treated, disposed, recovered, for example, refuse-derived fuel, or reused.
"Household waste" means any waste material (including garbage, trash, and sanitary
wastes in septic tanks) derived from households (including single and multiple
residences, hotels, and motels), bunkhouses, ranger stations, crew quarters,
campgrounds, picnic grounds, and day-use recreation areas). A resource recovery facility
managing municipal solid waste may not be deemed to be treating, storing, disposing of,
or otherwise managing hazardous wastes for the purpose of regulation under this article,
if such facility:
(1)
Receives and burns only:
(a)
Household waste (from single and multiple dwellings, hotels, motels, and other
residential sources); and
(b)
Solid waste from commercial or industrial sources that does not contain
hazardous waste; and
(2)
Such facility does not accept hazardous wastes and the owner or operator of such
facility has established contractual requirements or other appropriate notification or
inspection procedures to assure that hazardous wastes are not received at or
burned in such facility.
b.
Solid wastes generated by any of the following and which are returned to the soils as
fertilizers:
(1)
The growing and harvesting of agricultural crops.
(2)
The raising of animals, including animal manures.
c.
Mining overburden returned to the minesite.
d.
Wastes generated primarily from the combustion or processes that support the
combustion of coal or other fossil fuels:
(1)
Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste
generated primarily from the combustion of coal or other fossil fuels, except as
provided by section 33.1-24-05-537 for facilities that burn or process hazardous
waste.
(2)
The following wastes generated primarily from processes that support the
combustion of coal or other fossil fuels that are codisposed with the wastes in
paragraph 1, except as provided by section 33.1-24-05-537 for facilities that burn or
process hazardous waste:
(a)
Coal pile runoff. For purposes of this subdivision, coal pile runoff means any
precipitation that drains off coal piles.
(b)
Boiler cleaning solutions. For purposes of this subdivision, boiler cleaning
solutions means water solutions and chemical solutions used to clean the
fire-side and water-side of the boiler.
(c)
Boiler blowdown. For purposes of this subdivision, boiler blowdown means
water purged from boilers used to generate steam.
(d)
Process water treatment and demineralizer regeneration wastes. For purposes
of this subdivision, process water treatment and demineralizer regeneration
wastes means sludges, rinses, and spent resins generated from processes to
remove dissolved gases, suspended solids, and dissolved chemical salts from
combustion system process water.
(e)
Cooling tower blowdown. For purposes of this subdivision, cooling tower
blowdown means water purged from a closed-cycle cooling system. Closed-
cycle cooling systems include cooling towers, cooling ponds, or spray canals.
(f)
Air heater and precipitator washes. For purposes of this subdivision, air heater
and precipitator washes means wastes from cleaning air preheaters and
electrostatic precipitators.
(g)
Effluents from floor and yard drains and sumps. For purposes of this
subdivision, effluents from floor and yard drains and sumps means
wastewaters, such as wash water, collected by or from floor drains, equipment
drains, and sumps located inside the power plant building; and wastewaters,
such as rain runoff, collected by yard drains and sumps located outside the
power plant building.
(h)
Wastewater treatment sludges. For purposes of this subdivision, wastewater
treatment sludges refers to sludges generated from the treatment of
wastewaters specified in subparagraphs a through f.
e.
Drilling fluids, produced waters, and other wastes associated with the exploration,
development, or production of crude oil, natural gas, or geothermal energy.
f.
The following chromium-containing wastes:
(1)
Wastes that fail the test for the toxicity characteristic because chromium is present
or are listed in this chapter due to the presence of chromium, which do not fail the
test for toxicity characteristic for any other constituent or are not listed due to the
presence of any other constituent, and which do not fail the test for any other
characteristic, if it is shown by a waste generator or by waste generators that:
(a)
The chromium in the waste is exclusively (or nearly exclusively) trivalent
chromium;
(b)
The waste is generated from an industrial process which uses trivalent
chromium exclusively (or nearly exclusively) and the process does not
generate hexavalent chromium; and
(c)
The waste is typically and frequently managed in nonoxidizing environments.
(2)
Specific wastes which meet the standard of paragraph 1 (so long as they do not fail
the test for the toxicity characteristic for any other constituent, and do not exhibit any
other characteristic) are:
(a)
Chrome (blue) trimmings, chrome (blue) shavings, sewer screenings, and
wastewater treatment sludges, generated by the following subcategories of the
leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish;
hair save/chrome tan/retan/wet finish; retan/wet finish; no beamhouse;
through-the-blue; and shearling.
(b)
Buffing dust generated by the following subcategories of the leather tanning
and finishing industry: hair pulp/chrome tan/retan/wet finish; hair save/chrome
tan/retan/wet finish; retan/wet finish; no beamhouse; and through-the-blue.
(c)
Wastewater treatment sludges generated by the following subcategories of the
leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish;
hair save/chrome tan/retan/wet finish; and through-the-blue.
(d)
Waste scrap leather from the leather tanning industry, the shoe manufacturing
industry, and other leather product manufacturing industries.
(e)
Wastewater treatment sludges from the production of TiO2 pigment using
chromium-bearing ores by the chloride process.
g.
Solid waste from the extraction, beneficiation, and processing of ores and minerals
(including coal, phosphate rock, and overburden from the mining of uranium ore), except
as provided by section 33.1-24-05-537 for facilities that burn or process hazardous
waste.
(1)
For purposes of this subdivision, beneficiation of ores and minerals is restricted to
the following activities: crushing; grinding; washing; dissolution; crystallization;
filtration; sorting; sizing; drying; sintering; pelletizing; briquetting; calcining to remove
water or carbon dioxide, or both; roasting, autoclaving, or chlorination, or a
combination thereof, in preparation for leaching (except when the roasting,
autoclaving, or chlorination or a combination thereof, and leaching sequence
produces a final or intermediate product that does not undergo further beneficiation
or processing); gravity concentration; magnetic separation; electrostatic separation;
flotation; ion exchange; solvent extraction; electrowinning; precipitation;
amalgamation; and heap, dump, vat, tank, and in situ leaching.
(2)
For the purposes of this subdivision, solid waste from the processing of ores and
minerals includes only the following wastes as generated:
(a)
Slag from primary copper processing;
(b)
Slag from primary lead processing;
(c)
Red and brown muds from bauxite refining;
(d)
Phosphogypsum from phosphoric acid production;
(e)
Slag from elemental phosphorous production;
(f)
Gasifier ash from coal gasification;
(g)
Process wastewater from coal gasification;
(h)
Calcium sulfate wastewater treatment plant sludge from primary copper
processing;
(i)
Slag tailings from primary copper processing;
(j)
Fluorogypsum from hydrofluoric acid production;
(k)
Process wastewater from hydrofluoric acid production;
(l)
Air pollution control dust or sludge from iron blast furnaces;
(m)
Iron blast furnace slag;
(n)
Treated residue from roasting or leaching of chrome ore;
(o)
Process wastewater from primary magnesium processing by the anhydrous
process;
(p)
Process wastewater from phosphoric acid production;
(q)
Basic oxygen furnace and open hearth furnace air pollution control dust or
sludge from carbon steel production;
(r)
Basic oxygen furnace and open hearth furnace slag from carbon steel
production;
(s)
Chloride process waste solids from titanium tetrachloride production; and
(t)
Slag from primary zinc processing.
(3)
A residue derived from coprocessing mineral processing secondary materials with
normal beneficiation raw materials or with normal mineral processing raw materials
remains excluded under this subsection if the owner or operator:
(a)
Processes at least fifty percent by weight normal beneficiation raw materials or
with normal mineral processing raw materials; and
(b)
Legitimately reclaims the secondary mineral processing materials.
h.
Cement kiln dust waste, except as provided by section 33.1-24-05-537 for facilities that
burn or process hazardous waste.
i.
Solid waste that consists of discarded arsenical-treated wood or wood products which
fails the test for the toxicity characteristic for hazardous waste codes D004 through D017
and which is not a hazardous waste for any other reason, if the waste is generated by
persons who utilize the arsenical-treated wood and wood products for these materials
intended end use.
j.
Petroleum-contaminated media and debris that fail the test for the toxicity characteristic
of section 33.1-24-02-14 (hazardous waste codes D018 through D043 only) and are
subject to the corrective action regulations under chapter 33.1-24-08.
k.
Injected ground water that is hazardous only because it exhibits the toxicity characteristic
(hazardous waste codes D018 through D043 only) in section 33.1-24-02-14 that is
reinjected through an underground injection well pursuant to free phase hydrocarbon
recovery operations undertaken at petroleum refineries, petroleum marketing terminals,
petroleum bulk plants, petroleum pipelines, and petroleum transportation spill sites until
January 25, 1993. This extension applies to recovery operations in existence, or for
which contracts have been issued, on or before March 25, 1991. For ground water
returned through infiltration galleries from such operations at petroleum refineries,
marketing terminals, and bulk plants, until October 2, 1991. New operations involving
injection wells (beginning after March 25, 1991) will qualify for this compliance date
extension (until January 25, 1993) only if:
(1)
Operations are performed pursuant to a written state agreement that includes a
provision to assess the ground water and the need for further remediation once the
free phase recovery is completed; and
(2)
A copy of the written agreement has been submitted to Waste Identification Branch
(5304), United States Environmental Protection Agency, 1200 Pennsylvania Ave.
NW, Washington, D.C. 20460.
l.
Used chlorofluorocarbon refrigerants from totally enclosed heat transfer equipment,
including mobile air-conditioning systems, mobile refrigeration, and commercial and
industrial air-conditioning and refrigeration systems that use chlorofluorocarbons as the
heat transfer fluid in a refrigeration cycle, provided the refrigerant is reclaimed for further
use.
m.
Nonterne plated used oil filters that are not mixed with waste listed in sections
33.1-24-02-15 through 33.1-24-02-19 if these oil filters have been gravity hot-drained
using one of the following methods:
(1)
Puncturing the filter antidrain back valve or the filter dome end and hot-draining;
(2)
Hot-draining and crushing;
(3)
Dismantling and hot-draining; or
(4)
Any other equivalent hot-draining method that will remove used oil.
n.
Used oil re-refining distillation bottoms that are used as feedstock to manufacture asphalt
products.
o.
Leachate or gas condensate collected from landfills where certain solid wastes have
been disposed, provided that:
(1)
The solid wastes disposed would meet one or more of the listing descriptions for
hazardous wastes codes K169, K170, K171, K172, K174, K175, K176, K177, K178,
and K181 if these wastes had been generated after the effective date of the listing;
(2)
The solid wastes described in paragraph 1 were disposed prior to the effective date
of the listing;
(3)
The leachate or gas condensate do not exhibit any characteristic of hazardous
waste nor are derived from any other listed hazardous waste;
(4)
Discharge of the leachate or gas condensate, including leachate or gas condensate
transferred from the landfill to a publicly owned treatment works by truck, rail, or
dedicated pipe, is subject to regulation under sections 307(b) or 402 of the Clean
Water Act.
(5)
As of February 13, 2001, leachate or gas condensate derived from K169 through
K172 is no longer exempt if it is stored or managed in a surface impoundment prior
to discharge. As of November 21, 2003, leachate or gas condensate derived from
K176, K177, and K178 is no longer exempt if it is stored or managed in a surface
impoundment prior to discharge. After February 26, 2007, leachate or gas
condensate derived from K181 will no longer be exempt if it is stored or managed in
a surface impoundment prior to discharge. There is one exception: if the surface
impoundment is used to temporarily store leachate or gas condensate in response
to an emergency situation (for example, shutdown of wastewater treatment system),
provided the impoundment has a double liner, and provided the leachate or gas
condensate is removed from the impoundment and continues to be managed in
compliance with the conditions of this paragraph after the emergency ends.
p.
Solvent-contaminated wipes, except for wipes that are hazardous waste due to the
presence of trichloroethylene, that are sent for disposal are not hazardous wastes from
the point of generation, provided that:
(1)
The solvent-contaminated wipes, when accumulated, stored, and transported, are
contained in nonleaking, closed containers that are labeled "excluded solvent-
contaminated wipes". The containers must be able to contain free liquids, should
free liquids occur. During accumulation, a container is considered closed when there
is complete contact between the fitted lid and the rim, except when it is necessary to
add or remove solvent-contaminated wipes. When the container is full, or when the
solvent-contaminated wipes are no longer being accumulated, or when the
container is being transported, the container must be sealed with all lids properly
and securely affixed to the container and all openings tightly bound or closed
sufficiently to prevent leaks and emissions;
(2)
The solvent-contaminated wipes may be accumulated by the generator for up to
one hundred eighty days from the start date of accumulation for each container prior
to being sent for disposal;
(3)
At the point of being transported for disposal, the solvent-contaminated wipes must
contain no free liquids as defined in section 33.1-24-01-04;
(4)
Free liquids removed from the solvent-contaminated wipes or from the container
holding the wipes must be managed according to the applicable regulations found in
chapters 33.1-24-01 through 33.1-24-04 and 33.1-24-06, sections 33.1-24-05-01
through 33.1-24-05-559, 33.1-24-05-700 through 33.1-24-05-929, and
33.1-24-05-950 through 33.1-24-05-1149;
(5)
Generators must maintain at the facility the following documentation:
(a)
Name and address of the landfill or combustor that is receiving the solvent-
contaminated wipes;
(b)
Documentation that the one hundred eighty-day accumulation time limit in
paragraph 2 of subdivision p of subsection 2 of section 33.1-24-02-04 is being
met; and
(c)
Description of the process the generator is using to ensure
solvent-contaminated wipes contain no free liquids at the point of being
transported for disposal;
(6)
The solvent-contaminated wipes are sent for disposal:
(a)
To a municipal solid waste landfill regulated under article 33.1-20, including
chapter 33.1-20-06.1, or to a hazardous waste landfill regulated under sections
33.1-24-05-01
through
33.1-24-05-190,
33.1-24-05-300
through
33.1-24-05-524, 33.1-24-05-550 through 33.1-24-05-559, and 33.1-24-05-800
through 33.1-24-05-819, or subsection 5 of section 33.1-24-06-16; or
(b)
To a municipal waste combustor or other combustion facility regulated under
section 129 of the Clean Air Act or to a hazardous waste combustor, boiler, or
industrial furnace regulated under sections 33.1-24-05-01 through
33.1-24-05-190, 33.1-24-05-300 through 33.1-24-05-524, 33.1-24-05-550
through 33.1-24-05-559, 33.1-24-05-800 through 33.1-24-05-819, subsection 5
of section 33.1-24-06-16, or sections 33.1-24-05-525 through 33.1-24-05-549.
3.
Hazardous wastes that are exempted from certain regulations. A hazardous waste which
is generated in a product or raw material storage tank, a product or raw material transport
vehicle or vessel, a product or raw material pipeline, or in a manufacturing process unit or an
associated non-waste-treatment-manufacturing unit is not subject to regulation under chapters
33.1-24-03 through 33.1-24-07 or to the notification requirements until it exits the unit in which
it was generated, unless the unit is a surface impoundment, or unless the hazardous waste
remains in the unit more than ninety days after the unit ceases to be operated for
manufacturing, or for storage or transportation of product or raw materials.
4.
Samples.
a.
Except as provided in subdivision b and d, a sample of solid waste or a sample of water,
soil, or air, which is collected for the sole purpose of testing to determine its
characteristics or composition, is not subject to any requirements of this chapter or
chapters 33.1-24-03 through 33.1-24-07 or to the notification requirements when:
(1)
The sample is being transported to a laboratory for the purpose of testing;
(2)
The sample is being transported back to the sample collector after testing;
(3)
The sample is being stored by the sample collector before transport to a laboratory
for testing;
(4)
The sample is being stored in a laboratory before testing;
(5)
The sample is being stored in a laboratory after testing but before it is returned to
the sample collector; or
(6)
The sample is being stored temporarily in the laboratory after testing for a specific
purpose, e.g., until conclusion of a court case or enforcement action if further testing
of the sample may be necessary.
b.
In order to qualify for the exemption in paragraphs 1 and 2 of subdivision a, a sample
collector shipping samples to a laboratory and a laboratory returning samples to a
sample collector must:
(1)
Comply with the United States department of transportation, the United States
postal service, or any other applicable shipping requirement; or
(2)
Comply with the following requirements if the sample collector determines that the
United States department of transportation, the United States postal service, or
other shipping requirements do not apply to the shipment of the sample:
(a)
Assure that the following information accompanies the sample:
[1]
The sample collector's name, mailing address, and telephone number;
[2]
The laboratory's name, mailing address, and telephone number;
[3]
The quantity of the sample;
[4]
The date of shipment; and
[5]
A description of the sample.
(b)
Package the sample so that it does not leak, spill, or vaporize from its
packaging.
c.
This exemption does not apply if the laboratory determines that the waste is hazardous
but the laboratory is no longer meeting any of the conditions stated in subdivision a.
d.
In order to qualify for the exemption in paragraphs 1 and 2 of subdivision a, the mass of a
sample that will be exported to a foreign laboratory or that will be imported to a United
States laboratory from a foreign source must additionally not exceed twenty-five
kilograms.
5.
Treatability study samples.
a.
Except as provided in subdivision b, persons who generate or collect samples for the
purpose of conducting treatability studies as defined in section 33.1-24-01-04 are not
subject to any requirement of chapters 33.1-24-02 through 33.1-24-04 or to the
notification requirements, nor are such samples included in the quantity determination of
subsection 2 of section 33.1-24-03-03 and section 33.1-24-03-29 when:
(1)
The sample is being collected and prepared for transportation by the generator or
sample collectors;
(2)
The sample is being accumulated or stored by the generator or sample collector
prior to transportation to a laboratory or testing facility; or
(3)
The sample is being transported to the laboratory or testing facility for the purpose
of conducting a treatability study.
b.
The exemption in subdivision a is applicable to samples of hazardous waste being
collected and shipped for the purpose of conducting treatability studies provided that:
(1)
The generator or sample collector uses, in "treatability studies", no more than ten
thousand kilograms of media contaminated with nonacute hazardous waste, one
thousand kilograms of nonacute hazardous waste other than contaminated media,
one kilogram of acute hazardous waste, twenty-five hundred kilograms of media
contaminated with acute hazardous waste for each process being evaluated for
each generated waste stream.
(2)
The mass of each sample shipment does not exceed ten thousand kilograms; the
ten thousand kilogram quantity may be all media contaminated with nonacute
hazardous waste, or may include twenty-five hundred kilograms of media
contaminated with acute hazardous waste, one thousand kilograms of hazardous
waste, and one kilogram of acute hazardous waste.
(3)
The sample must be packaged so that it will not leak, spill, or vaporize from its
packaging during shipment and the requirements of subparagraph a or b are met.
(a)
The transportation of each sample shipment complies with United States
department of transportation, United States postal service, or any other
applicable shipping requirements; or
(b)
If the United States department of transportation, United States postal service,
or other shipping requirements do not apply to the shipment of the sample, the
following information must accompany the sample:
[1]
The name, mailing address, and telephone number of the originator of the
samples;
[2]
The name, address, and telephone number of the facility that will perform
the treatability study;
[3]
The quantity of the sample;
[4]
The date of shipment; and
[5]
A description of the sample, including its hazardous waste number.
(4)
The sample is shipped to a laboratory or testing facility which is exempt under
subsection 6 of section 33.1-23-02-04 or has an appropriate hazardous waste
permit or interim status.
(5)
The generator or sample collector maintains the following records for a period
ending three years after completion of the treatability study:
(a)
Copies of the shipping document;
(b)
A copy of the contract with the facility conducting the treatability study;
(c)
Documentation showing:
[1]
The amount of waste shipped under this exemption;
[2]
The name, address, and identification number of the laboratory or testing
facility that received the waste;
[3]
The date the shipment was made; and
[4]
Whether unused samples and residues were returned to the generator.
(6)
The generator reports the information required under subparagraph c of
paragraph 5 in its biennial report.
c.
The department may grant requests, on a case-by-case basis, for up to an additional two
years for treatability studies involving bioremediation. The department may grant
requests on a case-by-case basis for quantity limits in excess of those specified in
paragraphs 1 and 2 of subdivision b and subdivision d of subsection 6, for up to an
additional five thousand kilograms of media contaminated with nonacute hazardous
waste, five hundred kilograms of nonacute hazardous waste, twenty-five hundred
kilograms of media contaminated with acute hazardous waste, and one kilogram of acute
hazardous waste:
(1)
In response to requests for authorization to ship, store, and conduct treatability
studies on additional quantities in advance of commencing treatability studies.
Factors to be considered in reviewing such requests include the nature of the
technology, the type of process, for example, batch versus continuous, size of the
unit undergoing testing, particularly in relation to scale-up considerations, the time
and quantity of material required to reach steady state operating conditions, or test
design considerations such as mass balance calculations.
(2)
In response to requests for authorization to ship, store, and conduct treatability
studies on additional quantities after initiation or completion of initial treatability
studies, when there has been an equipment or mechanical failure during the
conduct of the treatability study; there is a need to verify the results of a previous
study; there is a need to study and analyze alternative techniques within a
previously evaluated process; or there is a need to do further evaluation of an
ongoing treatability study to determine final specifications for treatment.
(3)
The additional quantities and timeframes allowed in paragraphs 1 and 2 are subject
to all the provisions in subdivision a and paragraphs 3 through 6 of subdivision b.
The generator or sample collector must apply to the department and provide in
writing the following information:
(a)
The reason why the generator or sample collector requires additional time or
quantity of sample for treatability study evaluation and the additional time or
quantity needed;
(b)
Documentation accounting for all samples of hazardous waste from the waste
stream which have been sent for or undergone treatability studies, including
the date each previous sample from the waste stream was shipped, the
quantity of each previous shipment, the laboratory or testing facility to which it
was shipped, what treatability study processes were conducted on each
sample shipped, and the available results on each treatability study;
(c)
A description of the technical modifications or change in specifications which
will be evaluated and the expected results;
(d)
If such further study is being required due to equipment of mechanical failure,
the applicant must include information regarding the reason for the failure or
breakdown and also include what procedures or equipment improvements
have been made to protect against further breakdowns; and
(e)
Such other information that the department considers necessary.
d.
In order to qualify for the exemption in paragraph 1 of subdivision a, the mass of a
sample that will be exported to a foreign laboratory or that will be imported to a United
States laboratory from a foreign source must additionally not exceed twenty-five
kilograms.
6.
Samples undergoing treatability studies at laboratories and testing facilities. Samples
undergoing treatability studies and the laboratory or testing facility conducting such treatability
studies, to the extent such facilities are not otherwise subject to hazardous waste
requirements, are not subject to any requirements of this article, or to the notification
requirements provided that the conditions of subdivisions a through k are met. A mobile
treatment unit may qualify as a testing facility subject to subdivisions a through k. Where a
group of mobile treatment units are located at the same site, the limitations specified in
subdivisions a through k apply to the entire group of mobile treatment units collectively as if
the group were one mobile treatment unit.
a.
No less than forty-five days before conducting treatability studies, the facility notifies the
department in writing that it intends to conduct treatability studies under this subsection.
b.
The laboratory or testing facility conducting the treatability study has an identification
number.
c.
No more than a total of ten thousand kilograms of "as received" media contaminated with
nonacute hazardous waste, twenty-five hundred kilograms of media contaminated with
acute hazardous waste, or two hundred fifty kilograms of other "as received" hazardous
waste is subject to initiation of treatment in all treatability studies in any single day. "As
received" wastes refers to the waste as received in the shipment from the generator or
sample collector.
d.
The quantity of "as received" hazardous waste stored at the facility for the purpose of
evaluation in treatability studies does not exceed ten thousand kilograms, the total of
which can include ten thousand kilograms of media contaminated with nonacute
hazardous waste, twenty-five hundred kilograms of media contaminated with acute
hazardous waste, one thousand kilograms of nonacute hazardous waste other than
contaminated media, and one kilogram of acute hazardous waste. This quantity limitation
does not include treatment materials, including nonhazardous solid waste, added to "as
received" hazardous waste.
e.
No more than ninety days have elapsed since the treatability study for the sample was
completed, or no more than one year, two years for treatability studies involving
bioremediation, have elapsed since the generator or sample collector shipped the
sample to the laboratory or testing facility, whichever date occurs first. Up to five hundred
kilograms of treated material from a particular waste stream from treatability studies may
be archived for future evaluation up to five years from the date of initial receipt.
Quantities of materials archived are counted against the total storage limit for the facility.
f.
The treatability study does not involve the placement of hazardous waste on the land or
open burning of hazardous waste.
g.
The facility maintains records for three years following completion of each study that
shows compliance with the treatment rate limits and the storage time and quantity limits.
The following specific information must be included for each treatability study conducted:
(1)
The name, address, and identification number of the generator or sample collector
of each waste sampled;
(2)
The date the shipment was received;
(3)
The quantity of waste accepted;
(4)
The quantity of "as received" waste in storage each day;
(5)
The date the treatment study was initiated and the amount of "as received" waste
introduced to treatment each day;
(6)
The date the treatability study was concluded; and
(7)
The date any unused sample or residues generated from the treatability study were
returned to the generator or sample collector or, if sent to a designated facility, the
name of the facility and the identification number.
h.
The facility keeps, onsite, a copy of the treatability study contract and all shipping papers
associated with the transport of treatability study samples to and from the facility for a
period ending three years from the completion date of each treatability study.
i.
The facility prepares and submits a report to the department by March fifteenth of each
year that includes the following information for the previous calendar year:
(1)
The name, address, and identification number of the facility conducting the
treatability study;
(2)
The types, by process, of treatability studies conducted;
(3)
The names and addresses of persons for whom studies have been conducted,
including their identification numbers;
(4)
The total quantity of waste in storage each day;
(5)
The quantity and type of waste subjected to treatability studies;
(6)
When each treatability study was conducted; and
(7)
The final disposition of residues and unused samples from each treatability study.
j.
The facility determines whether any unused sample or residues generated by the
treatability study are hazardous waste under section 33.1-24-02-03 and, if so, are subject
to chapters 33.1-24-02 through 33.1-24-06, unless the residues and unused samples are
returned to the sample originator under the subsection 5 of section 33.1-24-02-04
exemption.
k.
The facility notifies the department by letter when the facility is no longer planning to
conduct any treatability studies at the site.
7.
Polychlorinated biphenyl wastes regulated under Toxic Substance Control Act. The
disposal of polychlorinated biphenyl-containing dielectric fluid and electric equipment
containing such fluid authorized for use and regulated under 40 CFR 761 and that are
hazardous only because they fail the test for the toxicity characteristic (hazardous waste
codes D018 through D043 only) are exempt from regulation under this article, and the
notification requirements.
8.
Dredged material that is not a hazardous waste. Dredged material that is subject to the
requirements of a permit that has been issued under section 404 of the Federal Water
Pollution Control Act [33 U.S.C. 1344] or section 103 of the Marine Protection, Research, and
Sanctuaries Act of 1972 [33 U.S.C. 1413] is not a hazardous waste. For this subsection, the
following definitions apply:
a.
The term dredged material has the same meaning as defined in 40 CFR 232.2.
b.
The term permit means:
(1)
A permit issued by the United States army corps of engineers (corps) or an
approved state under section 404 of the Federal Water Pollution Control Act
[33 U.S.C. 1344];
(2)
A permit issued by the corps under section 103 of the Marine Protection, Research,
and Sanctuaries Act of 1972 [33 U.S.C. 1413]; or
(3)
In the case of corps civil work projects, the administrative equivalent of the permits
referred to in paragraphs 1 and 2, as provided for in corps regulations (for example,
see 33 CFR 336.1, 336.2, and 337.6).
9.
Carbon dioxide stream injected for geologic sequestration. Carbon dioxide streams that
are captured and transported for purposes of injection into an underground injection well
subject to the requirements for class VI underground injection control wells, including the
requirements in 40 CFR parts 144 and 146 of the underground injection control program of the
Safe Drinking Water Act, are not a hazardous waste, provided the following conditions are
met:
a.
Transportation of the carbon dioxide stream must be in compliance with United States
department of transportation requirements, including the pipeline safety laws [49 United
States code 60101 et seq.] and regulations [49 CFR parts 190-199] of the United States
department of transportation, and pipeline safety regulations adopted and administered
by a state authority pursuant to a certification under 49 United States code 60105, as
applicable;
b.
Injection of the carbon dioxide stream must be in compliance with the applicable
requirements for class VI underground injection control wells, including the applicable
requirements in 40 CFR parts 144 and 146;
c.
No hazardous wastes shall be mixed with, or otherwise coinjected with, the carbon
dioxide stream; and
d.
Certification statements:
(1)
Any generator of a carbon dioxide stream, who claims that a carbon dioxide stream
is excluded under this subsection, must have an authorized representative (as
defined in section 33.1-24-01-04) sign a certification statement worded as follows: I
certify under penalty of law that the carbon dioxide stream that I am claiming to be
excluded under subsection 9 of section 33.1-24-02-04 has not been mixed with
hazardous wastes, and I have transported the carbon dioxide stream in compliance
with (or have contracted with a pipeline operator or transporter to transport the
carbon dioxide stream in compliance with) department of transportation
requirements, including the pipeline safety laws [49 United States code 60101
et seq.] and regulations [49 CFR parts 190-199] of the United States department of
transportation, and the pipeline safety regulations adopted and administered by a
state authority pursuant to a certification under 49 United States code 60105, as
applicable, for injection into a well subject to the requirements for the class VI
underground injection control program of the Safe Drinking Water Act.
(2)
Any class VI underground injection control well owner or operator, who claims that a
carbon dioxide stream is excluded under this subsection, must have an authorized
representative (as defined in section 33.1-24-01-04) sign a certification statement
worded as follows: I certify under penalty of law that the carbon dioxide stream that I
am claiming to be excluded under subsection 9 of section 33.1-24-02-04 has not
been mixed with, or otherwise coinjected with, hazardous waste at the underground
injection control class VI permitted facility, and that injection of the carbon dioxide
stream is in compliance with the applicable requirements for underground injection
class VI wells, including the applicable requirements in 40 CFR parts 144 and 146.
(3)
The signed certification statement must be kept onsite for no less than three years,
and must be made available within seventy-two hours of a written request from the
administrator, regional administrator, or the department, or their designee. The
signed certification statement must be renewed every year that the exclusion is
claimed, by having an authorized representative (as defined in section
33.1-24-01-04) annually prepare and sign a new copy of the certification statement
within one year of the date of the previous statement. The signed certification
statement must also be readily accessible on the facility's publicly available website
(if such website exists) as a public notification with the title of "carbon dioxide
stream certification" at the time the exclusion is claimed.
10.
Airbag wastes. Airbag waste at the airbag waste handler or during transport to an airbag
waste collection facility or designated facility is not subject to regulations under chapters 3
through 7 of article 33.1-24, and is not subject to the notification requirements of section 3010
of the Resource Conversation and Recovery Act provided that:
a.
The airbag waste is accumulated in a quantity of no more than two hundred fifty airbag
modules or airbag inflators, for no longer than one hundred eighty days;
b.
The airbag waste is packaged in a container designed to address the risk posed by the
airbag waste and labeled "Airbag Waste - Do Not Reuse‿;
c.
The airbag waste is sent directly to either:
(1)
An airbag waste collection facility in the United States under the control of a vehicle
manufacturer or their authorized representative, or under the control of an
authorized party administering a remedy program in response to a recall under the
national highway traffic safety administration; or
(2)
A designated facility as defined in subsection 35 of section 33.1-24-01-04;
d.
The transport of the airbag waste complies with all applicable United States department
of transportation regulations in 49 CFR part 171 through 180 during transit;
e.
The airbag waste handler maintains at the handler facility for no less than three years
records of all offsite shipments of airbag waste and all confirmations of receipt from the
receiving facility. For each shipment, these records must, at a minimum, contain the
name of the transporter and date of the shipment; name and address of receiving facility;
and the type and quantity of airbag waste (i.e., airbag modules or airbag inflators) in the
shipment. Confirmations of receipt must include the name and address of the receiving
facility; the type and quantity of the airbag waste (i.e., airbag modules and airbag
inflators) received, and the date it was received. Shipping records and confirmations of
receipt must be made available for inspection and may be satisfied by routine business
records (e.g., electronic or paper financial records, bills of lading, copies of department of
transportation shipping papers, or electronic confirmations of receipt).
f.
Once the airbag waste arrives at an airbag waste collection facility or designated facility,
it becomes subject to all applicable hazardous waste regulations, and the facility
receiving airbag waste is considered the hazardous waste generator for the purposes of
the hazardous waste regulations and must comply with the requirements of chapter
33.1-24-03.
g.
Reuse in vehicles of defective airbag modules or defective airbag inflators subject to a
recall under the national highway traffic safety administration is considered sham
recycling and is prohibited under subsection 7 of section 33.1-24-02-02.