NR 660.31(2)(2) The department may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on all of the following criteria: NR 660.31(2)(a)(a) How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials. NR 660.31(2)(b)(b) The extent to which the material is handled before reclamation to minimize loss. NR 660.31(2)(c)(c) The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process. NR 660.31(2)(d)(d) The location of the reclamation operation in relation to the production process. NR 660.31(2)(e)(e) Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form. NR 660.31(2)(f)(f) Whether the person who generates the material also reclaims it. NR 660.31(3)(3) The department may grant a request for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed, but must be reclaimed further before recovery is completed, if the partial reclamation has produced a commodity-like material. A determination that a partially reclaimed material for which the variance is sought is commodity-like will be based on whether the hazardous secondary material is legitimately recycled as specified in s. NR 660.43 and on whether all of the following decision criteria are satisfied: NR 660.31(3)(a)(a) The degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste. NR 660.31(3)(b)(b) The partially reclaimed material has sufficient economic value that it will be purchased for further reclamation. NR 660.31(3)(c)(c) The partially reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials that is used in subsequent production steps. NR 660.31(3)(d)(d) There is a market for the partially reclaimed material as demonstrated by known customers who are further reclaiming the material, such as records of sales or contracts and evidence of subsequent use, such as bills of lading. NR 660.31(3)(e)(e) The partially reclaimed material is handled to minimize loss NR 660.31 HistoryHistory: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06; CR 16-007: r. (2) (b), renum. (2) (c) to (h) to (2) (b) to (g) Register July 2017 No. 739, eff. 8-1-17; CR 19-082: am. (3) (intro.), (a), (b), r. and recr. (3) (c), (d), am. (3) (e) Register August 2020 No. 776, eff. 9-1-20; correction in (3) made under s. 35.17, Stats., Register August 2020 No. 776. NR 660.32NR 660.32 Variances to be classified as a boiler. According to the standards and criteria in s. NR 660.10 (definition of “boiler”), and the procedures in s. NR 660.33, the department may determine on a case-by-case basis that certain enclosed devices using controlled flame combustion are boilers, even though they do not otherwise meet the definition of boiler contained in s. NR 660.10, after considering all of the following criteria: NR 660.32(1)(1) The extent to which the unit has provisions for recovering and exporting thermal energy in the form of steam, heated fluids or heated gases. NR 660.32(2)(2) The extent to which the combustion chamber and energy recovery equipment are of integral design. NR 660.32(3)(3) The efficiency of energy recovery, calculated in terms of the recovered energy compared with the thermal value of the fuel. NR 660.32(4)(4) The extent to which exported energy is utilized. NR 660.32(5)(5) The extent to which the device is in common and customary use as a “boiler” functioning primarily to produce steam, heated fluids or heated gases. NR 660.32 HistoryHistory: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06. NR 660.33NR 660.33 Procedures for variances from classification as a solid waste or to be classified as a boiler, or applications for non-waste determinations. The department will use all of the following procedures in evaluating applications for variances from classification as a solid waste or applications to classify particular enclosed controlled flame combustion devices as boilers, or applications for non-waste determinations: NR 660.33(1)(1) The applicant shall apply to the department for the variance. The application shall address the relevant criteria contained in s. NR 660.31, 660.32, or 660.34, as applicable. NR 660.33(2)(2) The department will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement or radio broadcast in the locality where the recycler is located. The department will accept comment on the tentative decision for 30 days, and may also hold a public hearing upon request or at the department’s discretion. The department will issue a final decision after receipt of comments and after the hearing (if any). NR 660.33(3)(3) In the event of a change in circumstances that affects how a hazardous secondary material meets the relevant criteria contained in s. NR 660.31, 660.32, or 660.34 upon which a variance or non-waste determination has been based, the applicant shall send a description of the change in circumstances to the department. The department may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or non-waste determination or may require the facility to re-apply for the variance or non-waste determination. NR 660.33(4)(4) A variance or non-waste determination shall be effective for a fixed term not to exceed 10 years. No later than 6 months prior to the end of that term, a facility shall re-apply for a variance or non-waste determination. If a facility re-applies for a variance or non-waste determination within 6 months prior to the end of the term, the facility may continue to operate under an expired variance or non-waste determination until receiving a decision on its re-application from the department. NR 660.33(5)(5) A facility receiving a variance or non-waste determination shall provide notification as required under s. NR 660.42. NR 660.33 HistoryHistory: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06; CR 19-082: am. (intro.), (1), cr. (3) to (5) Register August 2020 No. 776, eff. 9-1-20; correction in (4) made under s. 35.17, Stats., Register August 2020 No. 776. NR 660.34NR 660.34 Standards and criteria for non-waste determinations. NR 660.34(1)(1) An applicant may apply to the department for a formal determination that a hazardous secondary material is not discarded and therefore not a solid waste. The determinations will be based on the criteria contained in sub. (2) or (3), as applicable. If an application is denied, the hazardous secondary material may still be eligible for a solid waste variance or exclusion through one of the solid waste variances under s. NR 660.31. Determinations may also be granted by the department if the department is authorized by the EPA for this provision or if all the following conditions are met: NR 660.34(1)(a)(a) The department determines the hazardous secondary material meets the criteria in sub. (2) or (3), as applicable. NR 660.34(1)(b)(b) The department requests that EPA review its determination. NR 660.34(2)(2) The department may grant a non-waste determination for hazardous secondary material that is reclaimed in a continuous industrial process if the applicant demonstrates that the hazardous secondary material is a part of the production process and is not discarded. The determination shall be based on whether the hazardous secondary material is legitimately recycled as specified in s. NR 660.43 and on all of the following criteria: NR 660.34(2)(a)(a) The management of the hazardous secondary material is part of the continuous primary production process and is not waste treatment. NR 660.34(2)(b)(b) The capacity of the production process will use the hazardous secondary material in a reasonable time frame and will ensure that the hazardous secondary material will not be abandoned. Examples of factors the department will use to determine capacity of the production process to use the hazardous secondary material include past production practices, market factors, the nature of the hazardous secondary material, and any contractual arrangements. NR 660.34(2)(c)(c) The hazardous constituents in the hazardous secondary material are reclaimed rather than released into the air, water, or land at significantly higher levels from either a statistical or health and environmental risk perspective than would otherwise be released by the production process. NR 660.34(2)(d)(d) Other relevant factors that demonstrate that the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under s. NR 661.0002 or 661.0004. NR 660.34(3)(3) The department may grant a non-waste determination for hazardous secondary material that is indistinguishable in all relevant aspects from a product or intermediate if the applicant demonstrates that the hazardous secondary material is comparable to a product or intermediate and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in s. NR 660.43 and on all of the following criteria: NR 660.34(3)(a)(a) Market participants treat the hazardous secondary material as a product or intermediate rather than a waste. Examples of factors that may be used to determine that the hazardous secondary material is a product or intermediate rather than a waste include the current positive value of the hazardous secondary material, stability of demand, or any contractual arrangements. NR 660.34(3)(b)(b) The chemical and physical identity of the hazardous secondary material is comparable to commercial products or intermediates. NR 660.34(3)(c)(c) The capacity of the market would use the hazardous secondary material in a reasonable time frame and ensure that the hazardous secondary material will not be abandoned. Examples of factors used to determine that a hazardous secondary material will not be abandoned include past practices, market factors, the nature of the hazardous secondary material, and any contractual arrangements. NR 660.34(3)(d)(d) The hazardous constituents in the hazardous secondary material are reclaimed rather than released into the air, water or land at significantly higher levels from either a statistical or health and environmental risk perspective than would otherwise be released by the production process. NR 660.34(3)(e)(e) Other relevant factors that demonstrate that the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under s. NR 661.0002 or 661.0004. NR 660.34 HistoryHistory: CR 19-082: cr. Register August 2020 No. 776, eff. 9-1-20; correction in (1) (a), (c), (2) (c), (3) (d) made under s. 35.17, Stats., Register August 2020 No. 776. NR 660.40NR 660.40 Additional regulation of certain hazardous waste recycling activities on a case-by-case basis. NR 660.40(1)(1) The department may decide on a case-by-case basis that persons accumulating or storing the recyclable materials described in s. NR 661.0006 (1) (b) 4. should be regulated under s. NR 661.0006 (2) and (3). The basis for this decision is that the materials are being accumulated or stored in a manner that does not protect human health and the environment because the materials or their toxic constituents have not been adequately contained, or because the materials being accumulated or stored together are incompatible. In making this decision, the department will consider all of the following factors: NR 660.40(1)(a)(a) The types of materials accumulated or stored and the amounts accumulated or stored. NR 660.40(1)(c)(c) The length of time the materials have been accumulated or stored before being reclaimed. NR 660.40(1)(d)(d) Whether any contaminants are being released into the environment, or are likely to be so released. NR 660.41NR 660.41 Procedures for case-by-case regulation of hazardous waste recycling activities. The department shall use the following procedures when determining whether to regulate hazardous waste recycling activities described in s. NR 661.0006 (1) (b) 4. under the provisions of s. NR 661.0006 (2) and (3), rather than under the provisions of subch. F of ch. NR 666. NR 660.41(1)(1) If a generator is accumulating the waste, the department shall issue a special order setting forth the factual basis for the decision and stating that the person shall comply with subch. A of ch. NR 662, subch. C of ch. NR 662, subch. D of ch. NR 662 and subch. H of ch. NR 662. The special order shall become final within 30 days, unless the person served requests a public hearing to challenge the decision. Upon receiving such a request, the department shall hold a public hearing. The department shall provide notice of the hearing to the public and allow public participation at the hearing. The department shall issue a final order after the hearing stating whether or not compliance with ch. NR 662 is required. The order becomes effective 30 days after service of the decision unless the department specifies a later date. NR 660.41(2)(2) If the person is accumulating the recyclable material as a storage facility, the special order will state that the person shall obtain a license according to all applicable provisions of ch. NR 670. The owner or operator of the facility shall apply for a license within no less than 60 days and no more than 6 months of the effective date of the order, as specified in the order. If the owner or operator of the facility wishes to object to the department’s decision, the owner or operator may do so in the owner or operator’s license application, in a public hearing held on the draft license or in comments filed on the draft license or on the notice of intent to deny the license. The fact sheet accompanying the license will specify the reasons for the department’s determination. The question of whether the department’s decision was proper will remain open for consideration during the public comment period discussed under ch. NR 670 and in any subsequent hearing. NR 660.41 HistoryHistory: CR 05-032: cr. Register July 2006 No. 607, eff. 8-1-06; correction in (1) made under s. 13.92 (4) (b) 7., Stats., Register March 2013 No. 687; CR 19-082: am. (1) Register August 2020 No. 776, eff. 9-1-20; correction in (intro.) made under s. 13.92 (4) (b) 7., Stats., Register April 2021 No. 784. NR 660.42NR 660.42 Notification requirement for hazardous secondary material. NR 660.42(1)(1) A facility managing hazardous secondary material under s. NR 660.30, 661.0004 (1) (w), (x), (y), or (za) shall send a notification to the department prior to operating under the regulatory provision and by March 1 of each even-numbered year thereafter using EPA Form 8700–12. The notification shall include all of the following information: NR 660.42(1)(a)(a) The name, address, and EPA ID number, if applicable, of the facility. NR 660.42(1)(d)(d) The regulation under which the hazardous secondary material will be managed. NR 660.42(1)(e)(e) For reclaimers and intermediate facilities managing hazardous secondary material in accordance with s. NR 661.0004 (1) (x) or (y), whether the reclaimer or intermediate facility has financial assurance. Financial assurance is not applicable for persons managing hazardous secondary material generated and reclaimed under the control of the generator. NR 660.42(1)(f)(f) The date the facility began or expects to begin managing the hazardous secondary material in accordance with the regulation. NR 660.42(1)(g)(g) A list of hazardous secondary material that will be managed according to the regulation, reported as the EPA hazardous waste numbers that would apply if the hazardous secondary materials were managed as hazardous wastes. NR 660.42(1)(h)(h) For each hazardous secondary material, whether the hazardous secondary material, or any portion thereof, will be managed in a land-based unit. NR 660.42(1)(i)(i) The quantity of each hazardous secondary material to be managed annually. NR 660.42(1)(j)(j) The certification, included in EPA Form 8700-12, signed and dated by an authorized representative of the facility. NR 660.42(2)(2) If a facility managing hazardous secondary material has submitted a notification, but then subsequently stops managing hazardous secondary material in accordance with the regulations in sub. (1), the facility shall notify the department within 30 days using EPA Form 8700-12. For the purposes of this section, a facility has stopped managing hazardous secondary material if the facility no longer generates, manages or reclaims hazardous secondary material under the regulations in sub. (1) and does not expect to manage any amount of hazardous secondary material for at least one year. NR 660.42 HistoryHistory: CR 19-082: cr. Register August 2020 No. 776, eff. 9-1-20; correction in (1) (g), (2) made under s. 35.17, Stats., Register August 2020 No. 776. NR 660.43NR 660.43 Legitimate recycling of hazardous secondary material. NR 660.43(1)(1) Factors that are required. Recycling of hazardous secondary material for the purpose of the exclusions or exemptions from the hazardous waste rules shall be legitimate. Hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste. In determining if recycling is legitimate, a person shall address all of the requirements under this subsection and consider the requirements in sub. (2). Legitimate recycling under this subsection includes all of the following: NR 660.43(1)(a)(a) Factor 1. Legitimate recycling shall involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process. The hazardous secondary material provides a useful contribution if it meets any of the following conditions: NR 660.43(1)(a)1.1. It contributes valuable ingredients to a product or intermediate. NR 660.43(1)(a)3.3. It is the source of a valuable constituent recovered in the recycling process. NR 660.43(1)(b)(b) Factor 2. The recycling process shall produce a valuable product or intermediate. The product or intermediate is valuable if it is one of the following: NR 660.43(1)(b)2.2. Used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process. NR 660.43(1)(c)(c) Factor 3. The generator and the recycler shall manage the hazardous secondary material as a valuable commodity when it is under their control. Where there is an analogous raw material, the hazardous secondary material shall be managed, at a minimum, in a manner consistent with the management of the raw material or in an equally protective manner. Where there is no analogous raw material, the hazardous secondary materials shall be contained. Hazardous secondary material that are released into the environment and are not recovered immediately are discarded. NR 660.43(2)(2) Factor that shall be considered. In making a determination that a hazardous secondary material is legitimately recycled, a person shall evaluate all factors in par. (a) and consider legitimacy as a whole. If, after careful evaluation of these considerations, the factor in this subsection is not met, then this fact may be an indication that the material is not legitimately recycled. However, the factor in this subsection does not have to be met for the recycling to be considered legitimate. In evaluating the extent to which this factor is met and in determining whether a process that does not meet this factor is still legitimate, a person can consider exposure from toxics in the product, the bioavailability of the toxics in the product and other relevant considerations. In making a determination as to the overall legitimacy of a specific recycling activity, all of the following factors shall be considered:
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