NR 661.0004(1)(w)1.b.b. The hazardous secondary material 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 s. NR 660.10 (90), 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 the purposes of this subd. 1. b. “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 s. NR 660.10 (90) may not be deemed to “control” such facilities. The generating and receiving facilities shall both maintain at their facilities, for no less than 3 years, records of hazardous secondary material sent or received under this exclusion. In both cases, the records shall 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, such as financial records, bills of lading, copies of DOT shipping papers, or electronic confirmations.

NR 661.0004(1)(w)1.c.c. The hazardous secondary material 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 material 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 material that are generated during the course of the manufacture, including any releases of hazardous secondary material that occur during the manufacturing process.” The tolling contractor shall maintain at its facility, for no less than 3 years, records of hazardous secondary material received pursuant to its written contract with the tolling manufacturer, and the tolling manufacturer shall maintain at its facility, for no less than 3 years, records of hazardous secondary material shipped pursuant to its written contract with the tolling contractor. In both cases, the records shall 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, such as financial records, bills of lading, copies of DOT shipping papers, or electronic confirmations. For the purposes of subd. 1. b., “tolling contractor” means a person who arranges for the production of a product or intermediate made from specified unused materials through a written contract with a toll manufacturer, and “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.

NR 661.0004(1)(w)2.a.a. The hazardous secondary material is contained, as defined in s. NR 660.10 (13m). 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.

NR 661.0004(1)(w)2.b.b. The hazardous secondary material is not speculatively accumulated, as defined in s. NR 661.0001 (3) (h).

NR 661.0004(1)(w)2.c.c. Notice is provided as required by s. NR 660.42.

NR 661.0004(1)(w)2.d.d. The material is not otherwise subject to material-specific management conditions under sub. (1) when reclaimed, and it is not a spent lead-acid battery under ss. NR 666.080 and 673.02.

NR 661.0004(1)(w)2.e.e. Persons performing the recycling of hazardous secondary material under this exclusion shall maintain documentation of their legitimacy determination on-site. Documentation shall be a written description of how the recycling meets all 3 factors specified in s. NR 660.43 (1) and how the factor in s. NR 660.43 (2) was considered. Documentation shall be maintained for 3 years after the recycling operation has ceased.

NR 661.0004(1)(w)2.f.f. The emergency preparedness and response requirements in subch. M are met.

NR 661.0004(1)(x)2.2. 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 10 days at a transfer facility, as defined in s. NR 660.10 (122), and is packaged according to applicable DOT regulations under 49 CFR parts 173, 178, and 179, and Wisconsin department of transportation regulations at ch. Trans 326 while in transport.

NR 661.0004(1)(x)5.a.a. The material shall be contained, as defined in s. NR 660.10 (13m). A hazardous secondary material released to the environment is considered 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 considered discarded and a solid waste.

NR 661.0004(1)(x)5.b.b. Prior to arranging for transport of hazardous secondary material to a reclamation facility where the management of the hazardous secondary material is not addressed under a RCRA part B permit or interim status standards, the hazardous secondary material generator shall make reasonable efforts to ensure that 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 material is not addressed under a RCRA part B 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 shall be repeated at a minimum of every 3 years for the hazardous secondary material generator to claim the exclusion and to send the hazardous secondary material 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. The hazardous secondary material generator shall affirmatively answer all of the following questions for each reclamation facility and any intermediate facility:

2) Does the publicly available information indicate that the reclamation facility and any intermediate facility that is used by the hazardous secondary material generator notified the appropriate authorities of hazardous secondary material reclamation activities pursuant to s. NR 660.42 and have they notified the appropriate authorities that the financial assurance condition is satisfied per subd. 6. f.? In answering these questions, the hazardous secondary material generator may rely on the available information documenting the reclamation facility’s and any intermediate facility’s compliance with the notification requirements per s. NR 660.42, including the requirement specified in s. NR 660.42 (1) (e) to notify the department whether the reclaimer or intermediate facility has financial assurance.

3) Does publicly available information indicate that the reclamation facility or any intermediate facility that is used by the hazardous secondary material generator has not had any formal enforcement actions taken against the facility in the previous 3 years for violations of the RCRA hazardous waste regulations and has not been classified as a significant noncomplier with RCRA Subtitle C? In answering this question, the hazardous secondary material generator may rely on the publicly available information from EPA or the department. If the reclamation facility or any intermediate facility that is used by the hazardous secondary material generator has had a formal enforcement action taken against the facility in the previous 3 years for violations of the RCRA hazardous waste regulations and has been classified as a significant non-complier with RCRA Subtitle C, does the hazardous secondary material generator have credible evidence that the facilities will manage the hazardous secondary material properly? In answering this question, the hazardous secondary material generator may obtain additional information from EPA, the department, or the facility itself that the facility has addressed the violations, the facility has taken remedial steps to address the violations and prevent future violations, or that the violations are not relevant to the proper management of the hazardous secondary material.

4) Does the available information indicate that the reclamation facility and any intermediate facility that is used by the hazardous secondary material generator have the equipment and trained personnel to safely recycle the hazardous secondary material? In answering this question, the generator may rely on a description by the reclamation facility or by an independent third party of the equipment and trained personnel to be used to recycle the generator’s hazardous secondary material.

5) If residuals are generated from the reclamation of the excluded hazardous secondary material, does the reclamation facility have the licenses required, if any, to manage the residuals? If not, does the reclamation facility have a contract with an appropriately licensed facility to dispose of the residuals? If not, does the hazardous secondary material generator have credible evidence that the residuals will be managed in a manner that is protective of human health and the environment? In answering these questions, the hazardous secondary material generator can rely on publicly available information from EPA or the department, or information provided by the facility itself.

NR 661.0004(1)(x)5.c.c. The hazardous secondary material generator shall maintain for a minimum of 3 years documentation and certification that reasonable efforts were made to meet the requirements under this paragraph for each reclamation facility and, if applicable, intermediate facility where the management of the hazardous secondary material is not addressed under a RCRA part B permit or interim status standards prior to transferring hazardous secondary material. Documentation and certification shall be made available upon request by the department within 72 hours, or within a longer period of time as specified by the department. The certification statement shall contain all of the following:

2) The following language: “I hereby certify in good faith and to the best of my knowledge that, prior to arranging for transport of excluded hazardous secondary material to [insert name of reclamation facility and any intermediate facility], reasonable efforts were made in accordance with s. NR 661.0004 (1) (x) 5. b. to ensure that the hazardous secondary material would be recycled legitimately, and otherwise managed in a manner that is protective of human health and the environment, and that such efforts were based on current and accurate information.”