NR 661.0002(1)(b)(b) “Discarded material” means any material that is one of the following: NR 661.0002(2)(2) Materials are solid wastes if they are abandoned by being any of the following: NR 661.0002(2)(c)(c) Accumulated, stored, or treated, but not recycled, before or in lieu of being abandoned by being disposed of, burned or incinerated. NR 661.0002(3)(3) Materials are solid wastes if they are recycled, or accumulated, stored, or treated before recycling as specified in pars. (a) to (d): NR 661.0002(3)(a)1.1. Materials noted with a “*” in column 1 of Table 1 are solid wastes when they are any of the following: NR 661.0002(3)(a)1.b.b. Used to produce products that are applied to or placed on the land or are otherwise contained in products that are applied to or placed on the land, in which case the product itself remains a solid waste. NR 661.0002(3)(a)2.2. Commercial chemical products listed in s. NR 661.0033 are not solid wastes if they are applied to the land and that is their ordinary manner of use. NR 661.0002(3)(b)1.1. Materials noted with a “*” in column 2 of Table 1 are solid wastes when they are any of the following: NR 661.0002(3)(b)1.b.b. Used to produce a fuel or are otherwise contained in fuels, in which cases the fuel itself remains a solid waste. NR 661.0002(3)(c)(c) They are reclaimed. Materials noted with a “-” in column 3 of Table 1 are not solid wastes when reclaimed. Materials noted with an “*” in column 3 of Table 1 are solid wastes when reclaimed unless they meet the requirements specified in s. NR 661.0004 (1) (q), (w), (x), or (za). NR 661.0002(3)(d)(d) They are accumulated speculatively. Materials noted with a “*” in column 4 of Table 1 are solid wastes when accumulated speculatively. Table 1
NR 661.0002 NoteNote: The terms “spent materials,” “sludges,” “by-products,” “scrap metal” and “processed scrap metal” are defined in s. NR 661.0001. NR 661.0002(4)(4) All of the following inherently waste-like materials are solid wastes when they are recycled in any manner: NR 661.0002(4)(a)(a) Hazardous waste numbers F020, F021, unless used as an ingredient to make a product at the site of generation, F022, F023, F026, and F028. NR 661.0002(4)(b)(b) Secondary material fed to a halogen acid furnace that exhibit a characteristic of a hazardous waste or are listed as a hazardous waste, as defined in subch. C or D, except for brominated material that meets all of the following criteria: NR 661.0002(4)(b)2.2. The material contains less than a total of 1% of toxic organic compounds listed in Appendix VIII. NR 661.0002(4)(b)3.3. The material is processed continually on-site in the halogen acid furnace via direct conveyance by hard piping. NR 661.0002(4)(c)(c) The department shall use all of the following criteria to add wastes to the inherently waste-like materials list: NR 661.0002(4)(c)1.b.b. The materials contain toxic constituents listed in Appendix VIII and these constituents are not ordinarily found in raw materials or products for which the materials substitute, or are found in raw materials or products in smaller concentrations, and are not used or reused during the recycling process. NR 661.0002(4)(c)2.2. The material may pose a substantial hazard to human health and the environment when recycled. NR 661.0002(5)(a)(a) A material is not a solid waste when it can be shown to be recycled by being one of the following: NR 661.0002(5)(a)1.1. Used or reused as an ingredient in an industrial process to make a product, provided the material is not being reclaimed prior to the use or reuse. NR 661.0002(5)(a)2.2. Used or reused as an effective substitute for commercial products, provided the material is not reclaimed prior to the use or reuse. NR 661.0002(5)(a)3.3. Returned to the original process from which it was generated, without first being reclaimed or land disposed. The material shall be returned as a substitute for feedstock materials. In cases where the original process to which the material is returned is a secondary process, the material shall be managed such that there is no placement on the land. In cases where the material is generated and reclaimed within the primary mineral processing industry, the conditions of the exclusion found at s. NR 661.0004 (1) (q) apply rather than this subsection. NR 661.0002(5)(b)(b) All of the following materials are solid wastes, even if the recycling involves use, reuse, or return to the original process as described in par. (a) 1. to 3.: NR 661.0002(5)(b)1.1. Materials used in a manner constituting disposal or used to produce products that are applied to the land. NR 661.0002(5)(b)2.2. Materials burned for energy recovery, used to produce a fuel, or contained in fuels. NR 661.0002(6)(6) A respondent in an action to enforce ch. 291, Stats., and chs. NR 660 to 667 who raises a claim that a certain material is not a solid waste, or is conditionally exempt from regulation, shall demonstrate that there is a known market or disposition for the material, and that they meet the terms of the exclusion or exemption. In doing so, the respondent shall provide appropriate documentation, such as contracts showing that a second person uses the material as an ingredient in a production process, to demonstrate that the material is not a waste, or is exempt from regulation. In addition, an owner or operator of facilities claiming that they actually are recycling materials shall show that they have the necessary equipment to do so. NR 661.0002(7)(7) A hazardous secondary material found to be sham recycled is considered discarded and a solid waste. “Sham recycling” means recycling that is not legitimate recycling as defined in s. NR 660.43. NR 661.0002 HistoryHistory: CR 19-082: cr. Register August 2020 No. 776, eff. 9-1-20; correction in (2) (intro.), (3) (intro.), (Table 1), (4) (b) made under s. 35.17, Stats., Register August 2020 No. 776. NR 661.0003(1)(b)1.1. It exhibits any of the characteristics of hazardous waste identified in subch. C. However, any mixture of a waste from the extraction, beneficiation, and processing of ores and minerals excluded under s. NR 661.0004 (2) (g) and any other solid waste exhibiting a characteristic of hazardous waste under subch. C is a hazardous waste only if it exhibits a characteristic that would not have been exhibited by the excluded waste alone if such mixture had not occurred, or if it continues to exhibit any of the characteristics exhibited by the non-excluded wastes prior to mixture. Further, for the purposes of applying the Toxicity Characteristic to such mixtures, the mixture is also a hazardous waste if it exceeds the maximum concentration for any contaminant listed in Table 2 of s. NR 661.0024 that would not have been exceeded by the excluded waste alone if the mixture had not occurred or if it continues to exceed the maximum concentration for any contaminant exceeded by the nonexempt waste prior to mixture. NR 661.0003(1)(b)4.4. It is a mixture of solid waste and one or more hazardous wastes listed in subch. D and has not been excluded from this paragraph under ss. NR 660.20 and 660.22, or sub. (7) or (8); however, the following mixtures of solid wastes and hazardous wastes listed in subch. D are not hazardous wastes (except by application of subd. 1. or 2.) if the generator can demonstrate that the mixture consists of wastewater discharge subject to regulation under either s. 283.21 (2), 283.31 or 283.33, Stats., (including wastewater at facilities that have eliminated the discharge of wastewater) and one of the following: NR 661.0003(1)(b)4.a.a. One or more of the following spent solvents listed in s. NR 661.0031: benzene, carbon tetrachloride, tetrachloroethylene, trichloroethylene or the scrubber waters derived from the combustion of these spent solvents, provided, that the maximum total weekly usage of these solvents, other than the amounts that can be demonstrated not to be discharged to wastewater, divided by the average weekly flow of wastewater into the headworks of the facility’s wastewater treatment or pretreatment system does not exceed one part per million, or the total measured concentration of these solvents entering the headworks of the facility’s wastewater treatment system, at facilities subject to regulation under the Clean Air Act, as amended, at 40 CFR part 60, 61, or 63, or subject to ch. NR 440, subchs. III and IV of ch. NR 446, or chs. NR 447 to 469, or at facilities subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions, does not exceed one part per million on an average weekly basis. Any facility that uses benzene as a solvent and claims this exemption shall use an aerated biological wastewater treatment system and shall use only lined surface impoundments or tanks prior to secondary clarification in the wastewater treatment system. Facilities that choose to measure concentration levels shall file a copy of their sampling and analysis plan with the department. A facility shall file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility’s operations. The sampling and analysis plan shall include the monitoring point location, headworks, the sampling frequency and methodology, and a list of constituents to be monitored. A facility is eligible for the direct monitoring option once they receive confirmation that the sampling and analysis plan has been received by the department. The department may reject the sampling and analysis plan if the department finds that the sampling and analysis plan fails to include the above information, or the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately. If the department rejects the sampling and analysis plan or if the department finds that the facility is not following the sampling and analysis plan, the department shall notify the facility to cease the use of the direct monitoring option until the bases for rejection are corrected. NR 661.0003(1)(b)4.b.b. One or more of the following spent solvents listed in s. NR 661.0031: methylene chloride, 1,1,1-trichloroethane, chlorobenzene, o-dichlorobenzene, cresols, cresylic acid, nitrobenzene, toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, spent chlorofluorocarbon solvents, 2-ethoxyethanol, or the scrubber waters derived from the combustion of these spent solvents, provided that the maximum total weekly usage of these solvents, other than the amounts that can be demonstrated not to be discharged to wastewater, divided by the average weekly flow of wastewater into the headworks of the facility’s wastewater treatment or pretreatment system does not exceed 25 parts per million, or the total measured concentration of these solvents entering the headworks of the facility’s wastewater treatment system, at facilities subject to regulation under the Clean Air Act as amended, at 40 CFR part 60, 61, or 63, or subject to ch. NR 440, subchs. III and IV of ch. NR 446, or chs. NR 447 to 469 or at facilities subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions, does not exceed 25 parts per million on an average weekly basis. Facilities that choose to measure concentration levels shall file a copy of their sampling and analysis plan with the department. A facility shall file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility’s operations. The sampling and analysis plan shall include the monitoring point location, headworks, the sampling frequency and methodology, and a list of constituents to be monitored. A facility is eligible for the direct monitoring option once it receives confirmation that the sampling and analysis plan has been received by the department. The department may reject the sampling and analysis plan if the department finds that the sampling and analysis plan fails to include the above information, or the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately. If the department rejects the sampling and analysis plan or if the department finds that the facility is not following the sampling and analysis plan, the department shall notify the facility to cease the use of the direct monitoring option until the bases for rejection are corrected. NR 661.0003(1)(b)4.c.c. One of the following wastes listed in s. NR 661.0032, if the wastes are discharged to the refinery oil recovery sewer before primary oil, water, or solids separation: heat exchanger bundle cleaning sludge from the petroleum refining industry (EPA hazardous waste number K050), crude oil storage tank sediment from petroleum refining operations (EPA hazardous waste number K169), clarified slurry oil tank sediment or in-line filter/separation solids from petroleum refining operations (EPA hazardous waste number K170), spent hydrotreating catalyst (EPA hazardous waste number K171), and spent hydrorefining catalyst (EPA hazardous waste number K172). NR 661.0003(1)(b)4.d.d. A discarded hazardous waste, commercial chemical product, or chemical intermediate listed in ss. NR 661.0031 to 661.0033, arising from de minimis losses of these materials. For the purposes of this subd. 4. d., de minimis losses are inadvertent releases to a wastewater treatment system, including those from normal material handling operations, such as spills from the unloading or transfer of materials from bins or other containers, leaks from pipes, valves or other devices used to transfer materials; minor leaks of process equipment, storage tanks or containers; leaks from well maintained pump packings and seals; sample purgings; relief device discharges; discharges from safety showers and rinsing and cleaning of personal safety equipment; and rinsate from empty containers or from containers that are rendered empty by that rinsing. Any manufacturing facility that claims an exemption for de minimis quantities of wastes listed in ss. NR 661.0031 to 661.0032, or any nonmanufacturing facility that claims an exemption for de minimis quantities of wastes listed in subch. D shall either have eliminated the discharge of wastewaters or have included in its Wisconsin Pollution Discharge Elimination System permit application or submission to its pretreatment control authority the constituents for which each waste was listed in ch. NR 661 Appendix VII and the constituents in the table “Treatment Standards for Hazardous Wastes” in s. NR 668.40 for which each waste has a treatment standard. A facility is eligible to claim the exemption once the department has been notified of possible de minimis releases via the Wisconsin Pollution Discharge Elimination System permit application or the pretreatment control authority submission. A copy of the Wisconsin Pollution Discharge Elimination System permit application or the submission to the pretreatment control authority shall be placed in the facility’s on-site files. NR 661.0003(1)(b)4.e.e. Wastewater resulting from laboratory operations containing toxic (T) wastes listed in subch. D if the annualized average flow of laboratory wastewater does not exceed one percent of total wastewater flow into the headworks of the facility’s wastewater treatment or pre-treatment system or provided the wastes combined annualized average concentration does not exceed one part per million in the headworks of the facility’s wastewater treatment or pre-treatment facility. Toxic (T) wastes used in laboratories that are demonstrated not to be discharged to wastewater are not to be included in this calculation. NR 661.0003(1)(b)4.f.f. One or more of the following wastes listed in s. NR 661.0032: wastewaters from the production of carbamates and carbamoyl oximes (EPA hazardous waste number K157) provided that the maximum weekly usage of formaldehyde, methyl chloride, methylene chloride, and trimethylamine, (including all amounts that cannot be demonstrated to be reacted in the process, destroyed through treatment, or recovered) divided by the average weekly flow of process wastewater prior to any dilution into the headworks of the facility’s wastewater treatment system does not exceed a total of 5 parts per million by weight or the total measured concentration of these chemicals entering the headworks of the facility’s wastewater treatment system, at facilities subject to regulation under the Clean Air Act as amended, at 40 CFR part 60, 61, or 63, or subject to ch. NR 440, subchs. III and IV of ch. NR 446, or chs. NR 447 to 469, or at facilities subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions, does not exceed 5 parts per million on an average weekly basis. A facility that chooses to measure concentration levels shall file a copy of its sampling and analysis plan with the department as the context requires. A facility shall file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility’s operations. The sampling and analysis plan shall include the monitoring point location (headworks), the sampling frequency and methodology, and a list of constituents to be monitored. A facility is eligible for the direct monitoring option once it receives confirmation that the sampling and analysis plan has been received by the department. The department may reject the sampling and analysis plan if the department finds that the sampling and analysis plan fails to include the above information, or the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately. If the department rejects the sampling and analysis plan or if the department finds that the facility is not following the sampling and analysis plan, the department shall notify the facility to cease the use of the direct monitoring option until the bases for rejection are corrected. NR 661.0003(1)(b)4.g.g. Wastewaters derived from the treatment of one or more of the following wastes listed in s. NR 661.0032 organic waste, including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates, from the production of carbamates and carbamoyl oximes, EPA hazardous waste numbers K156, provided that the maximum concentration of formaldehyde, methyl chloride, methylene chloride, and triethylamine prior to any dilutions into the headworks of the facility’s wastewater treatment system does not exceed a total of 5 milligrams per liter or the total measured concentration of these chemicals entering the headworks of the facility’s wastewater treatment system at facilities subject to regulation under the Clean Air Act as amended, at 40 CFR part 60, 61, or 63, or subject to ch. NR 440, subchs. III and IV of ch. NR 446, or chs. NR 447 to 469, or, at facilities subject to an enforceable limit in a federal operating permit that minimizes fugitive emissions does not exceed 5 milligrams per liter on an average weekly basis. A facility that chooses to measure concentration levels shall file copy of its sampling and analysis plan with the department. A facility shall file a copy of a revised sampling and analysis plan only if the initial plan is rendered inaccurate by changes in the facility’s operations. The sampling and analysis plan shall include the monitoring point location, headworks, the sampling frequency and methodology, and a list of constituents to be monitored. A facility is eligible for the direct monitoring option once it receives confirmation that the sampling and analysis plan has been received by the department. The department may reject the sampling and analysis plan if the department finds that the sampling and analysis plan fails to include the above information or the plan parameters would not enable the facility to calculate the weekly average concentration of these chemicals accurately. If the department rejects the sampling and analysis plan or if the department finds that the facility is not following the sampling and analysis plan, the department shall notify the facility to cease the use of the direct monitoring option until the bases for rejection are corrected. NR 661.0003(1)(b)5.5. Used oil containing more than 1,000 ppm total halogens is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in subch. D. Persons may rebut this presumption by demonstrating that the used oil does not contain hazardous waste, for example to show that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in ch. NR 661 Appendix VIII. NR 661.0003(1)(b)5.a.a. The rebuttable presumption does not apply to metalworking oils or fluids containing chlorinated paraffins, if they are processed, through a tolling agreement, to reclaim metalworking oils or fluids. The presumption does apply to metalworking oils or fluids if the oils or fluids are recycled in any other manner or disposed. NR 661.0003(1)(b)5.b.b. The rebuttable presumption does not apply to used oils contaminated with chlorofluorocarbons, or CFCs, removed from refrigeration units where the CFCs are destined for reclamation. The rebuttable presumption does apply to used oils contaminated with CFCs that have been mixed with used oil from sources other than refrigeration units. NR 661.0003(2)(2) A solid waste not excluded from regulation under sub. (1) (a) becomes a hazardous waste when any of the following events occur: NR 661.0003(2)(a)(a) In the case of a waste listed in subch. D, when the waste first meets the listing description set forth in subch. D. NR 661.0003(2)(b)(b) In the case of a mixture of solid waste and one or more listed hazardous wastes, when a hazardous waste listed in subch. D is first added to the solid waste. NR 661.0003(2)(c)(c) In the case of any other waste, including a waste mixture, when the waste exhibits any of the characteristics identified in subch. C. NR 661.0003(3)(b)1.1. Except as otherwise provided in subd. 2. or sub. (7) or (8), any solid waste generated from the treatment, storage, or disposal of a hazardous waste, including any sludge, spill residue, ash emission control dust, or leachate, but not including precipitation run-off, is a hazardous waste. However, materials that are reclaimed from solid wastes and that are used beneficially are not solid wastes and hence are not hazardous wastes under this provision unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal. NR 661.0003(3)(b)2.2. Unless they exhibit one or more of the characteristics of hazardous waste, none of the following solid wastes are hazardous even though they are generated from the treatment, storage, or disposal of a hazardous waste: NR 661.0003(3)(b)2.a.a. Waste pickle liquor sludge generated by lime stabilization of spent pickle liquor from the iron and steel industry, SIC Codes 331 and 332, as incorporated by reference in s. NR 660.11. NR 661.0003(3)(b)2.c.c. 1) Nonwastewater residues, such as slag, resulting from high temperature metals recovery or HTMR processing of K061, K062 or F006 waste, in units identified as rotary kilns, flame reactors, electric furnaces, plasma arc furnaces, slag reactors, rotary hearth furnace/electric furnace combinations or industrial furnaces as defined in s. NR 660.10 (60) (f), (g), and (m), that are disposed in approved solid waste disposal facilities, if these residues meet the generic exclusion levels identified in Table 2 for all constituents, and exhibit no characteristics of hazardous waste. Testing requirements shall be incorporated in a facility’s waste analysis plan or a generator’s self-implementing waste analysis plan. At a minimum, composite samples of residues shall be collected and analyzed quarterly and when the process or operation generating the waste changes. A person claiming this exclusion in an enforcement action has the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements. Table 2
2) A one-time notification and certification shall be placed in the facility’s files and sent to the department for K061, K062 or F006 HTMR residues that meet the generic exclusion levels for all constituents, and do not exhibit any characteristics of hazardous waste, that are sent to approved solid waste disposal facilities. The notification and certification that is placed in the generator’s or treater’s files shall be updated if the process or operation generating the waste changes or if the approved solid waste disposal facility receiving the waste changes. However, the generator or treater need only notify the department on an annual basis if such changes occur. Such notification and certification shall be sent to the department by the end of the calendar year. The notification shall include the following information: The name and address of the approved solid waste disposal facility receiving the waste shipments; the EPA hazardous waste number and treatability group at the initial point of generation; and the treatment standards applicable to the waste at the initial point of generation. The certification shall be signed by an authorized representative and shall state as follows: “I certify under penalty of law that the generic exclusion levels for all constituents have been met without impermissible dilution and that no characteristic of hazardous waste is exhibited. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment.”
NR 661.0003(3)(b)2.d.d. Biological treatment sludge from the treatment of one of the following wastes listed in s. NR 661.0032: organic waste, including heavy ends, still bottoms, light ends, spent solvents, filtrates, and decantates, from the production of carbamates and carbamoyl oximes, EPA Hazardous Waste No. K156; and wastewaters from the production of carbamates and carbamoyl oximes, EPA Hazardous Waste No. K157. NR 661.0003(3)(b)2.e.e. Catalyst inert support media separated from one of the following wastes listed in s. NR 661.0032: spent hydrotreating catalyst, EPA Hazardous Waste No. K171; and spent hydrorefining catalyst, EPA Hazardous Waste No. K172. NR 661.0003(4)(4) Any solid waste described in sub. (3) is not a hazardous waste if it meets the following criteria: NR 661.0003(4)(a)(a) In the case of any solid waste, it does not exhibit any of the characteristics of hazardous waste identified in subch. C. However, wastes that exhibit a characteristic at the point of generation may still be subject to the requirements under ch. NR 668, even if they no longer exhibit a characteristic at the point of land disposal. NR 661.0003(4)(b)(b) In the case of a waste that is a listed waste under subch. D, contains a waste listed under subch. D, or is derived from a waste listed in subch. D, it also has been excluded from sub. (3) under ss. NR 660.20 and 660.22. NR 661.0003(6)(6) Notwithstanding subs. (1) to (4) and provided the debris as defined in ch. NR 668 does not exhibit a characteristic identified in subch. C, none of the following materials is subject to regulation under ch. NR 660, 661 to 666, 668, or 670: NR 661.0003(6)(a)(a) Hazardous debris as defined in ch. NR 668 that has been treated using one of the required extraction or destruction technologies specified in Table 1 of s. NR 668.45. Persons claiming this exclusion in an enforcement action have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements.
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