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(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)(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)(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 660.40(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(2)(2) The procedures for this decision are set forth in s. NR 660.41.

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.