Ill. Admin. Code tit. 35, § 720.134 - Non-Waste Determinations
a)
A person generating, managing, or reclaiming hazardous secondary material may
petition the Board pursuant to this Section, Section
720.133
and Section 28.2 of the Act for an adjusted standard that is a formal
determination that a hazardous secondary material is not discarded and
therefore is not a solid waste. The Board's adjusted standard determination
will be based on the criteria contained in either subsection (b) or (c), as
applicable. If the Board denies the petition, the hazardous secondary material
might still be eligible for a solid waste determination or verified facility
determination pursuant to Section
720.131
or an exclusion. A determination made by the Board pursuant to this Section
becomes effective upon occurrence of the first of the following two events:
1) After USEPA has authorized Illinois to
administer this segment of the hazardous waste regulations, the determination
is effective upon issuance of the Board order that grants the non-waste
determination; or
2) Before USEPA
has granted such authorization, the non-waste determination becomes effective
upon fulfillment of all of the following conditions:
A) The Board has granted an adjusted standard
which determines that the hazardous secondary material meets the criteria in
either subsection (b) or (c), as applicable;
B) The Agency has requested that USEPA review
the Board's non-waste determination; and
C) USEPA has approved the Board's non-waste
determination.
b) The Board will grant a non-waste
determination for hazardous secondary material that is reclaimed in a
continuous industrial process if the Board determines that the applicant has
demonstrated that the hazardous secondary material is a part of the production
process and the material is not discarded. The determination will be based on
whether the hazardous secondary material is legitimately recycled, as
determined pursuant to Section
720.143,
and on the following criteria:
1) The extent
to which the management of the hazardous secondary material is part of the
continuous primary production process and is not waste treatment;
2) Whether the capacity of the production
process would use the hazardous secondary material in a reasonable time frame
and ensure that the hazardous secondary material will not be abandoned (for
example, based on past practices, market factors, the nature of the hazardous
secondary material, or any contractual arrangements);
3) Whether the hazardous constituents in the
hazardous secondary material are reclaimed, rather than released to the air,
water, or land, at significantly higher levels, from either a statistical or
from a health and environmental risk perspective, than would otherwise be
released by the production process; and
c) The Board will grant a
non-waste determination for a hazardous secondary material that is
indistinguishable in all relevant aspects from a product or intermediate if the
petitioner demonstrates that the hazardous secondary material is comparable to
a product or intermediate and is not discarded. The Board's determination will
be based on whether the hazardous secondary material is legitimately recycled,
as determined pursuant to Section 720.143, and on the following criteria:
1) Whether market participants treat the
hazardous secondary material as a product or intermediate, rather than as a
waste (for example, based on the current positive value of the hazardous
secondary material, stability of demand, or any contractual
arrangements);
2) Whether the
chemical and physical identity of the hazardous secondary material is
comparable to commercial products or intermediates;
3) Whether 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 (for example, based on
past practices, market factors, the nature of the hazardous secondary material,
or any contractual arrangements);
4) Whether the hazardous constituents in the
hazardous secondary material are reclaimed, rather than released to the air,
water, or land, at significantly higher levels, from either a statistical or
from a health and environmental risk perspective, than would otherwise be
released by the production process; and
5) Other relevant factors which 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 35 Ill. Adm. Code
721.102
or 721.104.
Notes
Added at 34 Ill. Reg. 18535, effective November 12, 2010
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