N.D. Admin Code 33.1-24-02-04 - Exclusions

Current through Supplement No. 382, October, 2021

1. Materials that are not solid wastes. The following materials are not solid wastes for the purpose of this chapter:
a. Any mixture of domestic sewage and other wastes that passes through a sewer system to a publicly owned treatment works for treatment, except as prohibited by section 33.1-24-05-315 and 33.1-16-01.1. "Domestic sewage" means untreated sanitary wastes that pass through a sewer system.
b. Industrial wastewater discharges that are point source discharges subject to regulation under subsections 18 and 19 of North Dakota Century Code section 61-28-04. (Comment: This exclusion applies only to the actual point source discharge. It does not exclude industrial wastewaters while they are being collected, stored, or treated before discharge, nor does it exclude sludges that are generated by industrial wastewater treatment.)
c. Irrigation return flows.
d. Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended [42 U.S.C. 2011 et seq.].
e. Materials subjected to in situ mining techniques which are not removed from the ground as part of the extraction process.
f. Pulping liquors (for example, black liquor) that are reclaimed in a pulping liquor recovery furnace and then reused in the pulping process, unless it is accumulated speculatively as defined in subsection 3 of section 33.1-24-02-01.
g. Spent sulfuric acid used to produce virgin sulfuric acid, unless it is accumulated speculatively as defined in subsection 3 of section 33.1-24-02-01.
h. Secondary materials that are reclaimed and returned to the original process or processes in which they were generated where they are reused in the production process provided:
(1) Only tank storage is involved, and the entire process through completion of reclamation is closed by being entirely connected with pipes or other comparable enclosed means of conveyance;
(2) Reclamation does not involve controlled flame combustion (such as occurs in boilers, industrial furnaces, or incinerators);
(3) The secondary materials are never accumulated in such tanks for over twelve months without being reclaimed; and
(4) The reclaimed material is not used to produce a fuel, or used to produce products that are used in a manner constituting disposal.
i. Wood preserving:
(1) Spent wood preserving solutions that have been reclaimed and are reused for their original intended purpose; and
(2) Wastewaters from the wood preserving process that have been reclaimed and are reused to treat wood.
(3) Prior to reuse, the wood preserving wastewaters and spent wood preserving solutions described in paragraphs 1 and 2, so long as they meet all of the following conditions:
(a) The wood preserving wastewaters and spent wood preserving solutions are reused onsite at waterborne plants in the production process for their original intended purpose;
(b) Prior to reuse, the wastewaters and spent wood preserving solutions are managed to prevent release to either land or ground water or both;
(c) Any unit used to manage wastewaters and spent wood preserving solutions, or both, prior to reuse can be visually or otherwise determined to prevent such releases;
(d) Any drip pad used to manage the wastewaters and spent wood preserving solutions, or both, prior to reuse complies with the applicable standards in subsection 5 of section 33.1-24-06-16, regardless of whether the plant generates a total of less than one hundred kilograms per month of hazardous waste; and
(e) Prior to operating pursuant to this exclusion, the plant owner or operator prepares a one-time notification stating that the plant intends to claim the exclusion, giving the date on which the plant intends to begin operating under the exclusion, and containing the following language:

"I have read the applicable regulation establishing an exclusion for wood preserving wastewaters and spent wood preserving solutions and understand it requires me to comply at all times with the conditions set out in the regulation."

The plant must maintain a copy of that document in its onsite records until closure of the facility. The exclusion applies only so long as the plant meets all of the conditions. If the plant goes out of compliance with any condition, it may apply to the department for reinstatement. The department may reinstate the exclusion upon finding that the plant has returned to compliance with all conditions and that violations are not likely to recur.

j. Hazardous waste numbers K060, K087, K141, K142, K143, K144, K145, K147, and K148, and any wastes from the coke byproducts processes that are hazardous only because they exhibit the toxicity characteristic specified in section 33.1-24-02-14 when, subsequent to generation, these materials are recycled to coke ovens, to the tar recovery process as a feedstock to produce coal tar, or mixed with coal tar prior to the tar's sale or refining. This exclusion is conditioned on there being no land disposal of the wastes from the point they are generated to the point they are recycled to coke ovens or tar recovery or refining processes, or mixed with coal tar.
k. Nonwastewater splash condenser dross residue from the treatment of K061 in high temperature metals recovery units, provided it is shipped in drums (if shipped) and not land disposed before recovery.
l. Materials considered:
(1) Oil-bearing hazardous secondary materials (for example, sludges, byproducts, or spent materials) that are generated at a petroleum refinery (standard industrial code 2911) and are inserted into the petroleum refining process (standard industrial code 2911 - including distillation, catalytic cracking, fractionation, or thermal cracking units (for example, cokers)) unless the material is placed on the land, or speculatively accumulated before being so recycled. Materials inserted into thermal cracking units are excluded under this paragraph, provided that the coke product also does not exhibit a characteristic of hazardous waste. Oil-bearing hazardous secondary materials may be inserted into the same petroleum refinery where they are generated, or sent directly to another petroleum refinery, and still be excluded under this provision. Except as provided in paragraph 2, oil-bearing hazardous secondary materials generated elsewhere in the petroleum industry (for example, from sources other than petroleum refineries) are not excluded under this paragraph. Residuals generated from processing or recycling materials excluded under this paragraph, where such materials as generated would have otherwise met a listing under sections 33.1-24-02-15 through 33.1-24-02-19, are designated as F037 listed wastes when disposed or intended for disposal.
(2) Recovered oil that is recycled in the same manner and with the same conditions as described in paragraph 1. Recovered oil is oil that has been reclaimed from secondary materials, including wastewater, generated from normal petroleum industry practices, including refining, exploration and production, bulk storage, and transportation incident thereto (standard industrial codes 1311, 1321, 1381, 1382, 1389, 2911, 4612, 4613, 4922, 4923, 4789, 5171, and 5172). Recovered oil does not include oil-bearing hazardous wastes listed in sections 33.1-24-02-15 through 33.1-24-02-19; however, oil recovered from such wastes may be considered recovered oil. Recovered oil does not include used oil as defined in section 33.1-24-05-600.
m. Excluded scrap metal (processed scrap metal, unprocessed home scrap metal, and unprocessed prompt scrap metal) being recycled.
n. Shredded circuit boards being recycled provided that they are:
(1) Stored in containers sufficient to prevent a release to the environment prior to recovery; and
(2) Free of mercury switches, mercury relays, and nickel-cadmium batteries and lithium batteries.
o. Condensates derived from the overhead gases from kraft mill stream strippers that are used to comply with 40 CFR 63.446(e). The exemption applies only to combustion at the mill generating the condensates.
p. [Reserved].
q. Spent materials (as defined in section 33.1-24-02-01) (other than hazardous wastes listed in sections 33.1-24-02-15 through 33.1-24-02-19) generated within the primary mineral processing industry from which minerals, acids, cyanide, water, or other values are recovered by mineral processing, or by beneficiation, provided that:
(1) The spent material is legitimately recycled to recover minerals, acids, cyanide, water, or other values;
(2) The spent material is not accumulated speculatively;
(3) Except as provided in paragraph 4, the spent material is stored in tanks, containers, or buildings meeting the following minimum integrity standards: a building must be an engineered structure with a floor, walls, and a roof all of which are made of nonear then materials providing structural support (except smelter buildings may have partially earthen floors provided the spent material is stored on the nonearthen portion), and have a roof suitable for diverting rainwater away from the foundation; a tank must be freestanding, not be a surface impoundment (as defined in section 33.1-24-01-04), and be manufactured of a material suitable for containment of its contents; a container must be freestanding and be manufactured of a material suitable for containment of its contents. If tanks or containers contain any particulate which may be subject to wind dispersal, the owner or operator must operate these units in a manner which controls fugitive dust. Tanks, containers, and buildings must be designed, constructed, and operated to prevent significant releases to the environment of these materials.
(4) The department may make a site-specific determination, after public review and comment, that only solid mineral processing spent material may be placed on pads, rather than in tanks, containers, or buildings. Solid mineral processing spent materials do not contain any free liquid. The decision maker must affirm that pads are designed, constructed, and operated to prevent significant releases of the spent material into the environment. Pads must provide the same degree of containment afforded by the hazardous waste tanks, containers, and buildings eligible for exclusion.
(a) The decisionmaker must also consider if storage on pads poses the potential for significant releases via ground water, surface water, and air exposure pathways. Factors to be considered for assessing the ground water, surface water, and air exposure pathways are the volume and physical and chemical properties of the spent material, including its potential for migration off the pad; the potential for human or environmental exposure to hazardous constituents migrating from the pad via each exposure pathway; and the possibility and extent of harm to human and environmental receptors via each exposure pathway.
(b) Pads must meet the following minimum standards: be designed of nonearthen material that is compatible with the chemical nature of the mineral processing spent material, capable of withstanding physical stresses associated with placement and removal; have run-on or runoff controls, or both; be operated in a manner which controls fugitive dust; and have integrity assurance through inspections and maintenance programs.
(c) Before making a determination under this paragraph, the department must provide notice and the opportunity for comment to all persons potentially interested in the determination. This can be accomplished by placing notice of this action in major local newspapers or broadcasting notice over local radio stations.
(5) The owner or operator provides notice to the department, providing the following information: the types of materials to be recycled, the type and location of the storage units and recycling processes, and the annual quantities expected to be placed in land-based units. This notification must be updated when there is a change in the type of materials recycled or the location of the recycling process.
(6) For purposes of subdivision g of subsection 2, mineral processing spent materials must be the result of mineral processing and may not include any listed hazardous wastes. Listed hazardous wastes and characteristic hazardous wastes generated by nonmineral processing industries are not eligible for the conditional exclusion from the definition of solid waste.
r. Petrochemical recovered oil from an associated organic chemical manufacturing facility, where the oil is to be inserted into the petroleum refining process (standard industrial code 2911) along with normal petroleum refinery process streams, provided:
(1) The oil is hazardous only because it exhibits the characteristic of ignitability (as defined in section 33.1-24-02-11) or toxicity for benzene (as defined in section 33.1-24-02-14, hazardous waste code D018), or both; and
(2) The oil generated by the organic chemical manufacturing facility is not placed on the land, or speculatively accumulated before being recycled into the petroleum refining process. An "associated organic chemical manufacturing facility" is a facility where the primary standard industrial code is 2869, but where operations may also include standard industrial codes 2821, 2822, and 2865; and is physically colocated with a petroleum refinery; and where the petroleum refinery to which the oil being recycled is returned also provides hydrocarbon feedstocks to the organic chemical manufacturing facility. "Petrochemical recovered oil" is oil that has been reclaimed from secondary materials (for example, sludges, byproducts, or spent materials, including wastewater) from normal organic chemical manufacturing operations, as well as oil recovered from organic chemical manufacturing processes.
s. Spent caustic solutions from petroleum refining liquid treating processes used as a feedstock to produce cresylic or naphthenic acid unless the material is placed on the land, or accumulated speculatively as defined in subsection 3 of section 33.1-24-02-01.
t. Hazardous secondary materials used to make zinc fertilizers, provided that the following conditions specified are satisfied:
(1) Hazardous secondary materials used to make zinc micronutrient fertilizers must not be accumulated speculatively, as defined in subdivision h of subsection 3 of section 33.1-24-02-01.
(2) Generators and intermediate handlers of zinc-bearing hazardous secondary materials that are to be incorporated into zinc fertilizers must:
(a) Submit a one-time notice to the department, which contains the name, address, and identification number of the generator or intermediate handler facility, provides a brief description of the secondary material that will be subject to the exclusion, and identifies when the manufacturer intends to begin managing excluded, zinc-bearing hazardous secondary materials under the conditions specified in this subdivision.
(b) Store the excluded secondary material in tanks, containers, or buildings that are constructed and maintained in a way that prevents releases of the secondary materials into the environment. At a minimum, any building used for this purpose must be an engineered structure made of nonearthen materials that provide structural support, and must have a floor, walls, and a roof that prevent wind dispersal and contact with rainwater. Tanks used for this purpose must be structurally sound and, if outdoors, must have roofs or covers that prevent contact with wind and rain. Containers used for this purpose must be kept closed except when it is necessary to add or remove material, and must be in sound condition. Containers that are stored outdoors must be managed within storage areas that:
[1] Have containment structures or systems sufficiently impervious to contain leaks, spills, and accumulated precipitation;
[2] Provide for effective drainage and removal of leaks, spills, and accumulated precipitation; and
[3] Prevent run-on into the containment system.
(c) With each offsite shipment of excluded hazardous secondary materials, provide written notice to the receiving facility that the material is subject to the conditions of this subdivision.
(d) Maintain at the generator's or intermediate handler's facility for no less than three years records of all shipments of excluded hazardous secondary materials. For each shipment these records must at a minimum contain the following information:
[1] Name of the transporter and date of the shipment;
[2] Name and address of the facility that received the excluded material, and documentation confirming receipt of the shipment; and
[3] Type and quantity of excluded secondary material in each shipment.
(3) Manufacturers of zinc fertilizers or zinc fertilizer ingredients made from excluded hazardous secondary materials must:
(a) Store excluded hazardous secondary materials in accordance with the storage requirements for generators and intermediate handlers, as specified in subparagraph b of paragraph 2.
(b) Submit a one-time notification to the department that, at a minimum, specifies the name, address, and identification number of the manufacturing facility, and identifies when the manufacturer intends to begin managing excluded, zinc-bearing hazardous secondary materials under the conditions specified in this subdivision.
(c) Maintain for a minimum of three years records of all shipments of excluded hazardous secondary materials received by the manufacturer, which must at a minimum identify for each shipment the name and address of the generating facility, name of transporter and date the materials were received, the quantity received, and a brief description of the industrial process that generated the material.
(d) Submit to the department an annual report that identifies the total quantities of all excluded hazardous secondary materials that were used to manufacture zinc fertilizers or zinc fertilizer ingredients in the previous year, the name and address of each generating facility, and the industrial process or processes from which they were generated. The annual report shall be submitted by March first of every year.
(4) Nothing in this subdivision preempts, overrides, or otherwise negates the provision in section 33.1-24-03-02, which requires any person who generates a solid waste to determine if that waste is a hazardous waste.
(5) Interim status and permitted storage units that have been used to store only zinc-bearing hazardous wastes prior to the submission of the one-time notice described in subparagraph a of paragraph 2, and that afterward will be used only to store hazardous secondary materials excluded under this subdivision, are not subject to the closure requirements of sections 33.1-24-05-01 through 33.1-24-05-190, 33.1-24-05-300 through 33.1-24-05-524, 33.1-24-05-550 through 33.1-24-05-559, and 33.1-24-05-800 through 33.1-24-05-819 and the applicable requirements of subsection 5 of section 33.1-24-06-16.
u. Zinc fertilizers made from hazardous wastes, or hazardous secondary materials that are excluded under subdivision t, provided that:
(1) The fertilizers meet the following contaminant limits:
(a) For metal contaminants:

Constituent

Maximum Allowable Total Concentration in Fertilizer, Per Unit (1 Percent) of Zinc (ppm)

Arsenic

0.3

Cadmium

1.4

Chromium

0.6

Lead

2.8

Mercury

0.3

(b) For dioxin contaminants the fertilizer must contain no more than eight parts per trillion of dioxin, measured as toxic equivalent (TEQ).
(2) The manufacturer performs sampling and analysis of the fertilizer product to determine compliance with the contaminant limits for metals no less than every six months, and for dioxins no less than every twelve months. Testing must also be performed whenever changes occur to manufacturing processes or ingredients that could significantly affect the amounts of contaminants in the fertilizer product. The manufacturer may use any reliable analytical method to demonstrate that no constituent of concern is present in the product at concentrations above the applicable limits. It is the responsibility of the manufacturer to ensure that the sampling and analysis are unbiased, precise, and representative of the product or products introduced into commerce.
(3) The manufacturer maintains for no less than three years records of all sampling and analyses performed for purposes of determining compliance with the requirements of paragraph 2. Such records must at a minimum include:
(a) The dates and times product samples were taken and the dates the samples were analyzed;
(b) The names and qualifications of the person taking the samples;
(c) A description of the methods and equipment used to take the samples;
(d) The name and address of the laboratory facility at which analyses of the samples were performed;
(e) A description of the analytical methods used, including any cleanup and sample preparation methods; and
(f) All laboratory analytical results used to determine compliance with the contaminant limits specified in subdivision u.
v. Used cathode ray tubes:
(1) Used, intact cathode ray tubes as defined in section 33.1-24-01-04 are not solid wastes within the United States unless they are disposed, or unless they are speculatively accumulated as defined in subdivision h of subsection 3 of section 33.1-24-02-01 by cathode ray tube collectors or glass processors.
(2) Used, intact cathode ray tubes as defined in section 33.1-24-01-04 are not solid wastes when exported for recycling provided that they meet the requirements of section 33.1-24-02-26.
(3) Used, broken cathode ray tubes as defined in section 33.1-24-01-04 are not solid wastes provided that they meet the requirements of section 33.1-24-02-25.
(4) Glass removed from cathode ray tubes is not a solid waste provided that it meets the requirements of subsection 3 of section 33.1-24-02-25.
w. Solvent-contaminated wipes that are sent for cleaning and reuse are not solid wastes from the point of generation, provided that:
(1) The solvent-contaminated wipes, when accumulated, stored, and transported, are contained in nonleaking, closed containers that are labeled "excluded solvent-contaminated wipes." The containers must be able to contain free liquids, should free liquids occur. During accumulation, a container is considered closed when there is complete contact between the fitted lid and the rim, except when it is necessary to add or remove solvent-contaminated wipes. When the container is full, or when the solvent-contaminated wipes are no longer being accumulated, or when the container is being transported, the container must be sealed with all lids properly and securely affixed to the container and all openings tightly bound or closed sufficiently to prevent leaks and emissions;
(2) The solvent-contaminated wipes may be accumulated by the generator for up to one hundred eighty days from the start date of accumulation for each container prior to being sent for cleaning;
(3) At the point of being sent for cleaning onsite or at the point of being transported offsite for cleaning, the solvent-contaminated wipes must contain no free liquids as defined in section 33.1-24-01-04;
(4) Free liquids removed from the solvent-contaminated wipes or from the container holding the wipes must be managed according to the applicable regulations found in 33.1-24-01 through 33.1-24-04 and 33.1-24-06, and sections 33.1-24-05-01 through 33.1-24-05-559, 33.1-24-05-700 through 33.1-24-05-929, and 33.1-24-05-950 through 33.1-24-05-1149;
(5) Generators must maintain at the facility the following documentation:
(a) Name and address of the laundry or dry cleaner that is receiving the solvent-contaminated wipes;
(b) Documentation that the 180-day accumulation time limit in paragraph 2 of subdivision w of subsection 1 of section 33.1-24-02-04 is being met; and
(c) Description of the process the generator is using to ensure the solvent-contaminated wipes contain no free liquids at the point of being laundered or dry cleaned onsite or at the point of being transported offsite for laundering or dry cleaning;
(6) The solvent-contaminated wipes are sent to a laundry or dry cleaner whose discharge, if any, is regulated under sections 301 and 402 or section 307 of the Clean Water Act.
x. Hazardous secondary material generated and legitimately reclaimed within the United States or its territories and under the control of the generator, provided that the material complies with:
(1) The hazardous secondary material:
(a) Is generated and reclaimed at the generating facility (for purposes of this definition, generating facility means all contiguous property owned, leased, or otherwise controlled by the hazardous secondary material generator); or
(b) 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 section 33.1-24-01-04, 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 purposes of this subparagraph, "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 section 33.1-24-01-04 shall not be deemed to "control" such facilities. The generating and receiving facilities must both maintain at their facilities for no less than three years records of hazardous secondary materials sent or received under this exclusion. In both cases, the records must 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 (for example, financial records, bills of lading, copies of department of transportation shipping papers, or electronic confirmation); or
(c) 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 materials 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 materials that are generated during the course of the manufacture, including any releases of hazardous secondary materials that occur during the manufacturing process." The tolling contractor must maintain at its facility for no less than three years records of hazardous secondary materials received pursuant to its written contract with the tolling manufacturer, and the tolling manufacturer must maintain at its facility for no less than three years records of hazardous secondary materials shipped pursuant to its written contract with the tolling contractor. In both cases, the records must 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 (for example, financial records, bills of lading, copies of department of transportation shipping papers, or electronic confirmations). For purposes of this subparagraph, tolling contractor means a person who arranges for the production of a product or intermediate made from specified unused materials through a written contact with a toll manufacturer. 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.
(2) The following requirements apply to hazardous secondary material managed under this exclusion:
(a) The hazardous secondary material is contained as defined in section 33.1-24-01-04. 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.
(b) The hazardous secondary material is not speculatively accumulated, as defined in subdivision h of subsection 3 of section 33.1-24-02-01.
(c) Notice is provided as required by section 33.1-24-01-18.
(d) The material is not otherwise subject to material-specific management conditions under subsection 1 when reclaimed, and it is not a spent lead-acid battery (see sections 33.1-24-05-235 and 33.1-24-05-702).
(e) Persons performing the recycling of hazardous secondary materials under this exclusion must maintain documentation of their legitimacy determination onsite. Documentation must be a written description of how the recycling meets all four factors in subsection 1 of section 33.1-24-01-19. Documentation must be maintained for three years after the recycling operation has ceased.
(f) The emergency preparedness and response requirements found in sections 33.1-24-02-120 through 33.1-24-02-129 are met.
y. Hazardous secondary material that is generated and then transferred to another person for the purpose of reclamation is not a solid waste, provided that:
(1) The material is not speculatively accumulated, as defined in subdivision h of subsection 3 of section 33.1-24-02-01;
(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 ten days at a transfer facility, as defined in section 33.1-24-01-04, and is packaged according to applicable department of transportation regulations at 49 CFR parts 173, 178, and 179 while in transport;
(3) The material is not otherwise subject to material-specific management conditions under subsection 1 when reclaimed, and it is not a spent lead-acid battery (see sections 33.1-24-05-235 and 33.1-24-05-702);
(4) The reclamation of the material is legitimate, as specified under section 33.1-24-01-19;
(5) The hazardous secondary material generator satisfied all of the following conditions;
(a) The material must be contained as defined in section 33.1-24-01-04. A hazardous secondary material released to the environment is 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 discarded and a solid waste.
(b) Prior to arranging for transport of hazardous secondary materials to a reclamation facility where the management of hazardous secondary materials is not addressed under a hazardous waste permit or interim status standards, the hazardous secondary material generator shall make reasonable efforts to ensure 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 materials is not addressed under a hazardous waste 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 must be repeated at a minimum of every three years for the hazardous secondary material generator to claim the exclusion and to send the hazardous secondary materials 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, or provided by both. The hazardous secondary material generator shall answer affirmatively all of the following questions for each reclamation facility and any intermediate facility:
[1] Does the available information indicate the reclamation process is legitimate pursuant to section 33.1-24-01-19?
[2] Does the publicly available information indicate the reclamation facility, and any intermediate facility, used by the hazardous secondary material generator notified the appropriate authorities of hazardous secondary materials reclamation activities pursuant to section 33.1-24-01-18, and have they notified the appropriate authorities the financial assurance condition has been satisfied?
[3] Does the publicly available information indicate the reclamation facility, or any intermediate facility, used by the secondary material generator has not had any formal enforcement actions taken against the facility in the previous three years for violations of North Dakota hazardous waste rules?
[4] Does the available information indicate the reclamation facility, and any intermediate facility, used by the hazardous secondary material generator have the equipment and trained personnel to safely recycle the hazardous secondary material?
[5] If residuals are generated from the reclamation of the excluded hazardous secondary materials, does the reclamation facility have the permits required to manage the residuals? If not, does the reclamation facility have a contract with an appropriately permitted facility to dispose of the residuals? If not, does the hazardous secondary material generator have credible evidence the residuals will be managed in a manner that is protective of human health and the environment?
(c) The hazardous secondary material generator must maintain at the generating facility for no less than three years records of all offsite shipments of hazardous secondary materials. For each shipment, these records must, at a minimum, contain the following information:
[1] Name of the transporter and date of the shipment;
[2] Name and address of each reclaimer and, if applicable, the name and address of each intermediate facility to which the hazardous secondary material was sent; and
[3] The type and quantity of hazardous secondary material in the shipment.
(d) The hazardous secondary material generator must maintain at the generating facility for no less than three years confirmations of receipt from each reclaimer and, if applicable, each intermediate facility for all offsite shipments of hazardous secondary materials. Confirmations of receipt must include the name and address of the reclaimer or intermediate facility, the type and quantity of the hazardous secondary materials received and the date which the hazardous secondary materials were received. This requirement may be satisfied by routine business records (for example, financial records, bills of lading, copies of department of transportation shipping papers, or electronic confirmations of receipt).
(e) The hazardous secondary material generator must comply with the emergency preparedness and response conditions in sections 33.1-24-02-120 through 33.1-24-02-129.
(6) Reclaimers of hazardous secondary material excluded from regulation under this exclusion and intermediate facilities as defined in section 33.1-24-01-04 satisfy all of the following conditions:
(a) The reclaimer and intermediate facility must maintain at its facility for no less than three years records of all shipments of hazardous secondary material that were received at the facility and, if applicable, for all shipments of hazardous secondary materials that were received and subsequently sent offsite from the facility for further reclamation. For each shipment, these records must at a minimum contain the following information:
[1] Name of the transporter and date of the shipment;
[2] Name and address of the hazardous secondary material generator and, if applicable, the name and address of the reclaimer or intermediate facility which the hazardous secondary materials were received from;
[3] The type and quantity of hazardous secondary material in the shipment; and
[4] For hazardous secondary materials that, after being received by the reclaimer or intermediate facility, were subsequently transferred offsite for further reclamation, the name and address of the subsequent reclaimer and, if applicable, the name and address of each intermediate facility to which the hazardous secondary material was sent.
(b) The intermediate facility must send the hazardous secondary material to the reclaimer or reclaimers designated by the hazardous secondary materials generator.
(c) The reclaimer and intermediate facility must send to the hazardous secondary material generator confirmations of receipt for all offsite shipments of hazardous secondary materials. Confirmations of receipt must include the name and address of the reclaimer or intermediate facility, the type and quantity of the hazardous secondary materials received and the date which the hazardous secondary materials were received. This requirement may be satisfied by routine business records (for example, financial records, bills of lading, copies of department of transportation shipping papers, or electronic confirmations of receipt).
(d) The reclaimer and intermediate facility must manage the hazardous secondary material in a manner that is at least as protective as that employed for analogous raw material and must be contained. An "analogous raw material" is a raw material for which a hazardous secondary material is a substitute and serves the same function and has similar physical and chemical properties as the hazardous secondary material.
(e) Any residuals that are generated from reclamation processes will be managed in a manner that is protective of human health and the environment. If any residuals exhibit a hazardous characteristic according to sections 33.1-24-02-10 through 33.1-24-02-14, or if the residuals themselves are specifically listed in sections 33.1-24-02-15 through 33.1-24-02-19, such residuals are hazardous wastes and must be managed in accordance with the applicable requirements of 33.1-24-01 through 33.1-24-04, sections 33.1-24-05-01 through 33.1-24-05-559, 33.1-24-05-800 through 33. 1-24-05-929, 33.1-24-05-950 through 33.1-24-05-1149, subsection 5 of section 33.1-24-06-16 and 33.1-24-06.
(f) The reclaimer and intermediate facility have financial assurance as required under sections 33.1-24-02-33 through 33.1-24-02-42.
(g) The reclaimer and intermediate facility have been granted a variance under subsection 4 of section 33.1-24-01-10 or have a hazardous waste permit or interim status standards that address the management of the hazardous secondary materials; and
(7) All persons claiming the exclusion under this subdivision provide notification as required under section 33.1-24-01-18.
z. Hazardous secondary material that is generated and then transferred to another person for the purpose of remanufacturing is not a solid waste, provided that:
(1) The hazardous secondary material consists of one or more of the following spent solvents: toluene, xylenes, ethylbenzene, 1,2,4-trimethylbenzene, chlorobenzene, n-hexane, cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform, chloromethane, dichloromethane, methyl isobutyl ketone, NN-dimethylformamide, tetrahydrofuran, n-butyl alcohol, ethanol, and methanol;
(2) The hazardous secondary material originated from using one or more of the solvents listed in paragraph 1, in a commercial grade for reacting, extracting, purifying, or blending chemicals (or for rinsing out the process lines associated with these functions) in the pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and the paints and coatings manufacturing sectors (NAICS 325510).
(3) The hazardous secondary material generator sends the hazardous secondary material spent solvents listed in paragraph 1 to a remanufacturer in the pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), or the paints and coatings manufacturing sectors (NAICS 325510).
(4) After remanufacturing one or more of the solvents listed in paragraph 1, the use of the remanufactured solvent shall be limited to reacting, extracting, purifying, or blending chemicals (or for rinsing out the process lines associated with these functions) in the pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and the paints and coatings manufacturing sectors (NAICS 325510) or to using them as ingredients in a product. These allowed uses correspond to chemical functional uses enumerated under the chemical data reporting rule of the Toxic Substances Control Act [40 CFR parts 704, 710-711], including industrial function codes U015 (solvents consumed in a reaction to produce other chemicals) and U030 (solvents become part of the mixture);
(5) After remanufacturing one or more of the solvents listed in paragraph 1, the use of the remanufactured solvent does not involve cleaning or degreasing oil, grease, or similar material from textiles, glassware, metal surfaces, or other articles. These disallowed continuing uses correspond to chemical functional uses in industrial function code U029 under the chemical data reporting rule of the Toxic Substances Control Act; and
(6) Both the hazardous secondary material generator and the remanufacturer must:
(a) Notify the department and update the notification every two years per section 33.1-24-01-18;
(b) Develop and maintain an up-to-date remanufacturing plan which identifies:
[1] The name, address, and identification number of the generator or generators and the remanufacturer or remanufacturers;
[2] The types and estimated annual volumes of spent solvents to be remanufactured;
[3] The processes and industry sectors that generate the spent solvents;
[4] The specific uses and industry sectors for the remanufactured solvents; and
[5] Certification from the remanufacturer stating "On behalf of [insert remanufacturer facility name], I certify that this facility is a remanufacturer under pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), or the paints and coatings manufacturing sectors (NAICS 325510), and will accept the spent solvent or solvents for the sole purpose of remanufacturing into commercial-grade solvent or solvents that will be used for reacting, extracting, purifying, or blending chemicals (or for rinsing out the process lines associated with these functions), or for the use as product ingredient or ingredients. I also certify that the remanufacturing equipment, vents, and tanks are equipped with and are operating air emission controls in compliance with the appropriate Clean Air Act regulations under 40 CFR Part 60, Part 61 or Part 63, or, absent such Clean Air Act standards for the particular operation or piece of equipment covered by the remanufacturing exclusion, are in compliance with the appropriate standards in sections 33.1-24-02-170 through 33.1-24-02-179 (vents), sections 33.1-24-02-180 through 33.1-24-02-199 (equipment), and sections 33.1-24-02-200 through 33.1-24-02-214 (tank storage)";
(c) Maintain records of shipments and confirmations of receipts for a period of three years from the dates of the shipments;
(d) Prior to remanufacturing, store the hazardous spent solvents in tanks or containers that meet technical standards found in sections 33.1-24-02-50 through 33.1-24-02-59 and sections 33.1-24-02-60 through 33.1-24-02-74, with the tanks and containers being labeled or otherwise having an immediately available record of material being stored;
(e) During remanufacturing, and during storage of the hazardous secondary materials prior to remanufacturing, the remanufacturer certifies that the remanufacturing equipment, vents, and tanks are equipped with and are operating air emission controls in compliance with the appropriate Clean Air Act regulations under 40 CFR parts 60, 61, or 63; or, absent such Clean Air Act standards for the particular operation or piece of equipment covered by the remanufacturing exclusion, are in compliance with the appropriate standards in sections 33.1-24-02-170 through 33.1-24-02-179 (vents), sections 33.1-24-02-180 through 33.1-24-02-199 (equipment), and sections 33.1-24-02-200 through 33.1-24-02-214 (tank storage); and
(f) Meet the requirements prohibiting speculative accumulation per subdivision h of subsection 3 of section 33-24-02-01.
2. Solid wastes that are not hazardous wastes. The following solid wastes are not hazardous wastes:
a. Household waste, including household waste that has been collected, transported, stored, treated, disposed, recovered, for example, refuse-derived fuel, or reused. "Household waste" means any waste material (including garbage, trash, and sanitary wastes in septic tanks) derived from households (including single and multiple residences, hotels, and motels), bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas). A resource recovery facility managing municipal solid waste may not be deemed to be treating, storing, disposing of, or otherwise managing hazardous wastes for the purpose of regulation under this article, if such facility:
(1) Receives and burns only:
(a) Household waste (from single and multiple dwellings, hotels, motels, and other residential sources); and
(b) Solid waste from commercial or industrial sources that does not contain hazardous waste; and
(2) Such facility does not accept hazardous wastes and the owner or operator of such facility has established contractual requirements or other appropriate notification or inspection procedures to assure that hazardous wastes are not received at or burned in such facility.
b. Solid wastes generated by any of the following and which are returned to the soils as fertilizers:
(1) The growing and harvesting of agricultural crops.
(2) The raising of animals, including animal manures.
c. Mining overburden returned to the minesite.
d. Wastes generated primarily from the combustion or processes that support the combustion of coal or other fossil fuels:
(1) Fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels, except as provided by section 33.1-24-05-537 for facilities that burn or process hazardous waste.
(2) The following wastes generated primarily from processes that support the combustion of coal or other fossil fuels that are codisposed with the wastes in paragraph 1, except as provided by section 33.1-24-05-537 for facilities that burn or process hazardous waste:
(a) Coal pile runoff. For purposes of this subdivision, coal pile runoff means any precipitation that drains off coal piles.
(b) Boiler cleaning solutions. For purposes of this subdivision, boiler cleaning solutions means water solutions and chemical solutions used to clean the fire-side and water-side of the boiler.
(c) Boiler blowdown. For purposes of this subdivision, boiler blowdown means water purged from boilers used to generate steam.
(d) Process water treatment and demineralizer regeneration wastes. For purposes of this subdivision, process water treatment and demineralizer regeneration wastes means sludges, rinses, and spent resins generated from processes to remove dissolved gases, suspended solids, and dissolved chemical salts from combustion system process water.
(e) Cooling tower blowdown. For purposes of this subdivision, cooling tower blowdown means water purged from a closed-cycle cooling system. Closed-cycle cooling systems include cooling towers, cooling ponds, or spray canals.
(f) Air heater and precipitator washes. For purposes of this subdivision, air heater and precipitator washes means wastes from cleaning air preheaters and electrostatic precipitators.
(g) Effluents from floor and yard drains and sumps. For purposes of this subdivision, effluents from floor and yard drains and sumps means wastewaters, such as wash water, collected by or from floor drains, equipment drains, and sumps located inside the power plant building; and wastewaters, such as rain runoff, collected by yard drains and sumps located outside the power plant building.
(h) Wastewater treatment sludges. For purposes of this subdivision, wastewater treatment sludges refers to sludges generated from the treatment of wastewaters specified in subparagraphs a through f.
e. Drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy.
f. The following chromium-containing wastes:
(1) Wastes that fail the test for the toxicity characteristic because chromium is present or are listed in this chapter due to the presence of chromium, which do not fail the test for toxicity characteristic for any other constituent or are not listed due to the presence of any other constituent, and which do not fail the test for any other characteristic, if it is shown by a waste generator or by waste generators that:
(a) The chromium in the waste is exclusively (or nearly exclusively) trivalent chromium;
(b) The waste is generated from an industrial process which uses trivalent chromium exclusively (or nearly exclusively) and the process does not generate hexavalent chromium; and
(c) The waste is typically and frequently managed in nonoxidizing environments.
(2) Specific wastes which meet the standard of paragraph 1 (so long as they do not fail the test for the toxicity characteristic for any other constituent, and do not exhibit any other characteristic) are:
(a) Chrome (blue) trimmings, chrome (blue) shavings, sewer screenings, and wastewater treatment sludges, generated by the following subcategories of the leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish; hair save/chrome tan/retan/wet finish; retan/wet finish; no beamhouse; through-the-blue; and shearling.
(b) Buffing dust generated by the following subcategories of the leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish; hair save/chrome tan/retan/wet finish; retan/wet finish; no beamhouse; and through-the-blue.
(c) Wastewater treatment sludges generated by the following subcategories of the leather tanning and finishing industry: hair pulp/chrome tan/retan/wet finish; hair save/chrome tan/retan/wet finish; and through-the-blue.
(d) Waste scrap leather from the leather tanning industry, the shoe manufacturing industry, and other leather product manufacturing industries.
(e) Wastewater treatment sludges from the production of TiO2 pigment using chromium-bearing ores by the chloride process.
g. Solid waste from the extraction, beneficiation, and processing of ores and minerals (including coal, phosphate rock, and overburden from the mining of uranium ore), except as provided by section 33.1-24-05-537 for facilities that burn or process hazardous waste.
(1) For purposes of this subdivision, beneficiation of ores and minerals is restricted to the following activities: crushing; grinding; washing; dissolution; crystallization; filtration; sorting; sizing; drying; sintering; pelletizing; briquetting; calcining to remove water or carbon dioxide, or both; roasting, autoclaving, or chlorination, or a combination thereof, in preparation for leaching (except when the roasting, autoclaving, or chlorination or a combination thereof, and leaching sequence produces a final or intermediate product that does not undergo further beneficiation or processing); gravity concentration; magnetic separation; electrostatic separation; flotation; ion exchange; solvent extraction; electrowinning; precipitation; amalgamation; and heap, dump, vat, tank, and in situ leaching.
(2) For the purposes of this subdivision, solid waste from the processing of ores and minerals includes only the following wastes as generated:
(a) Slag from primary copper processing;
(b) Slag from primary lead processing;
(c) Red and brown muds from bauxite refining;
(d) Phosphogypsum from phosphoric acid production;
(e) Slag from elemental phosphorous production;
(f) Gasifier ash from coal gasification;
(g) Process wastewater from coal gasification;
(h) Calcium sulfate wastewater treatment plant sludge from primary copper processing;
(i) Slag tailings from primary copper processing;
(j) Fluorogypsum from hydrofluoric acid production;
(k) Process wastewater from hydrofluoric acid production;
(l) Air pollution control dust or sludge from iron blast furnaces;
(m) Iron blast furnace slag;
(n) Treated residue from roasting or leaching of chrome ore;
(o) Process wastewater from primary magnesium processing by the anhydrous process;
(p) Process wastewater from phosphoric acid production;
(q) Basic oxygen furnace and open hearth furnace air pollution control dust or sludge from carbon steel production;
(r) Basic oxygen furnace and open hearth furnace slag from carbon steel production;
(s) Chloride process waste solids from titanium tetrachloride production; and
(t) Slag from primary zinc processing.
(3) A residue derived from coprocessing mineral processing secondary materials with normal beneficiation raw materials or with normal mineral processing raw materials remains excluded under this subsection if the owner or operator:
(a) Processes at least fifty percent by weight normal beneficiation raw materials or with normal mineral processing raw materials; and
(b) Legitimately reclaims the secondary mineral processing materials.
h. Cement kiln dust waste, except as provided by section 33.1-24-05-537 for facilities that burn or process hazardous waste.
i. Solid waste that consists of discarded arsenical-treated wood or wood products which fails the test for the toxicity characteristic for hazardous waste codes D004 through D017 and which is not a hazardous waste for any other reason, if the waste is generated by persons who utilize the arsenical-treated wood and wood products for these materials intended end use.
j. Petroleum-contaminated media and debris that fail the test for the toxicity characteristic of section 33.1-24-02-14 (hazardous waste codes D018 through D043 only) and are subject to the corrective action regulations under 33.1-24-08.
k. Injected ground water that is hazardous only because it exhibits the toxicity characteristic (hazardous waste codes D018 through D043 only) in section 33.1-24-02-14 that is reinjected through an underground injection well pursuant to free phase hydrocarbon recovery operations undertaken at petroleum refineries, petroleum marketing terminals, petroleum bulk plants, petroleum pipelines, and petroleum transportation spill sites until January 25, 1993. This extension applies to recovery operations in existence, or for which contracts have been issued, on or before March 25, 1991. For ground water returned through infiltration galleries from such operations at petroleum refineries, marketing terminals, and bulk plants, until October 2, 1991. New operations involving injection wells (beginning after March 25, 1991) will qualify for this compliance date extension (until January 25, 1993) only if:
(1) Operations are performed pursuant to a written state agreement that includes a provision to assess the ground water and the need for further remediation once the free phase recovery is completed; and
(2) A copy of the written agreement has been submitted to Waste Identification Branch (5304), United States Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, D.C. 20460.
l. Used chlorofluorocarbon refrigerants from totally enclosed heat transfer equipment, including mobile air-conditioning systems, mobile refrigeration, and commercial and industrial air-conditioning and refrigeration systems that use chlorofluorocarbons as the heat transfer fluid in a refrigeration cycle, provided the refrigerant is reclaimed for further use.
m. Nonterne plated used oil filters that are not mixed with waste listed in sections 33.1-24-02-15 through 33.1-24-02-19 if these oil filters have been gravity hot-drained using one of the following methods:
(1) Puncturing the filter antidrain back valve or the filter dome end and hot-draining;
(2) Hot-draining and crushing;
(3) Dismantling and hot-draining; or
(4) Any other equivalent hot-draining method that will remove used oil.
n. Used oil re-refining distillation bottoms that are used as feedstock to manufacture asphalt products.
o. Leachate or gas condensate collected from landfills where certain solid wastes have been disposed, provided that:
(1) The solid wastes disposed would meet one or more of the listing descriptions for hazardous wastes codes K169, K170, K171, K172, K174, K175, K176, K177, K178, and K181 if these wastes had been generated after the effective date of the listing;
(2) The solid wastes described in paragraph 1 were disposed prior to the effective date of the listing;
(3) The leachate or gas condensate do not exhibit any characteristic of hazardous waste nor are derived from any other listed hazardous waste;
(4) Discharge of the leachate or gas condensate, including leachate or gas condensate transferred from the landfill to a publicly owned treatment works by truck, rail, or dedicated pipe, is subject to regulation under sections 307(b) or 402 of the Clean Water Act.
(5) As of February 13, 2001, leachate or gas condensate derived from K169 through K172 is no longer exempt if it is stored or managed in a surface impoundment prior to discharge. As of November 21, 2003, leachate or gas condensate derived from K176, K177, and K178 is no longer exempt if it is stored or managed in a surface impoundment prior to discharge. After February 26, 2007, leachate or gas condensate derived from K181 will no longer be exempt if it is stored or managed in a surface impoundment prior to discharge. There is one exception: if the surface impoundment is used to temporarily store leachate or gas condensate in response to an emergency situation (for example, shutdown of wastewater treatment system), provided the impoundment has a double liner, and provided the leachate or gas condensate is removed from the impoundment and continues to be managed in compliance with the conditions of this paragraph after the emergency ends.
p. Solvent-contaminated wipes, except for wipes that are hazardous waste due to the presence of trichloroethylene, that are sent for disposal are not hazardous wastes from the point of generation, provided that:
(1) The solvent-contaminated wipes, when accumulated, stored, and transported, are contained in nonleaking, closed containers that are labeled "excluded solvent-contaminated wipes". The containers must be able to contain free liquids, should free liquids occur. During accumulation, a container is considered closed when there is complete contact between the fitted lid and the rim, except when it is necessary to add or remove solvent-contaminated wipes. When the container is full, or when the solvent-contaminated wipes are no longer being accumulated, or when the container is being transported, the container must be sealed with all lids properly and securely affixed to the container and all openings tightly bound or closed sufficiently to prevent leaks and emissions;
(2) The solvent-contaminated wipes may be accumulated by the generator for up to one hundred eighty days from the start date of accumulation for each container prior to being sent for disposal;
(3) At the point of being transported for disposal, the solvent-contaminated wipes must contain no free liquids as defined in section 33.1-24-01-04;
(4) Free liquids removed from the solvent-contaminated wipes or from the container holding the wipes must be managed according to the applicable regulations found in 33.1-24-01 through 33.1-24-04 and 33.1-24-06, sections 33.1-24-05-01 through 33.1-24-05-559, 33.1-24-05-700 through 33.1-24-05-929, and 33.1-24-05-950 through 33.1-24-05-1149;
(5) Generators must maintain at the facility the following documentation:
(a) Name and address of the landfill or combustor that is receiving the solvent-contaminated wipes;
(b) Documentation that the one hundred eighty-day accumulation time limit in paragraph 2 of subdivision p of subsection 2 of section 33.1-24-02-04 is being met; and
(c) Description of the process the generator is using to ensure solvent-contaminated wipes contain no free liquids at the point of being transported for disposal;
(6) The solvent-contaminated wipes are sent for disposal:
(a) To a municipal solid waste landfill regulated under 33.1-20, including 33.1-20-06.1, or to a hazardous waste landfill regulated under sections 33.1-24-05-01 through 33.1-24-05-190, 33.1-24-05-300 through 33. 1-24-05-524, 33.1-24-05-550 through 33.1-24-05-559, and 33.1-24-05-800 through 33.1-24-05-819, or subsection 5 of section 33.1-24-06-16; or
(b) To a municipal waste combustor or other combustion facility regulated under section 129 of the Clean Air Act or to a hazardous waste combustor, boiler, or industrial furnace regulated under sections 33.1-24-05-01 through 33.1-24-05-190, 33.1-24-05-300 through 33.1-24-05-524, 33.1-24-05-550 through 33.1-24-05-559, 33.1-24-05-800 through 33.1-24-05-819, subsection 5 of section 33.1-24-06-16, or sections 33.1-24-05-525 through 33.1-24-05-549.
3. Hazardous wastes that are exempted from certain regulations. A hazardous waste which is generated in a product or raw material storage tank, a product or raw material transport vehicle or vessel, a product or raw material pipeline, or in a manufacturing process unit or an associated non-waste-treatment-manufacturing unit is not subject to regulation under 33.1-24-03 through 33.1-24-07 or to the notification requirements until it exits the unit in which it was generated, unless the unit is a surface impoundment, or unless the hazardous waste remains in the unit more than ninety days after the unit ceases to be operated for manufacturing, or for storage or transportation of product or raw materials.
4. Samples.
a. Except as provided in subdivision b and d, a sample of solid waste or a sample of water, soil, or air, which is collected for the sole purpose of testing to determine its characteristics or composition, is not subject to any requirements of this chapter or 33.1-24-03 through 33.1-24-07 or to the notification requirements when:
(1) The sample is being transported to a laboratory for the purpose of testing;
(2) The sample is being transported back to the sample collector after testing;
(3) The sample is being stored by the sample collector before transport to a laboratory for testing;
(4) The sample is being stored in a laboratory before testing;
(5) The sample is being stored in a laboratory after testing but before it is returned to the sample collector; or
(6) The sample is being stored temporarily in the laboratory after testing for a specific purpose, e.g., until conclusion of a court case or enforcement action if further testing of the sample may be necessary.
b. In order to qualify for the exemption in paragraphs 1 and 2 of subdivision a, a sample collector shipping samples to a laboratory and a laboratory returning samples to a sample collector must:
(1) Comply with the United States department of transportation, the United States postal service, or any other applicable shipping requirement; or
(2) Comply with the following requirements if the sample collector determines that the United States department of transportation, the United States postal service, or other shipping requirements do not apply to the shipment of the sample:
(a) Assure that the following information accompanies the sample:
[1] The sample collector's name, mailing address, and telephone number;
[2] The laboratory's name, mailing address, and telephone number;
[3] The quantity of the sample;
[4] The date of shipment; and
[5] A description of the sample.
(b) Package the sample so that it does not leak, spill, or vaporize from its packaging.
c. This exemption does not apply if the laboratory determines that the waste is hazardous but the laboratory is no longer meeting any of the conditions stated in subdivision a.
d. In order to qualify for the exemption in paragraphs 1 and 2 of subdivision a, the mass of a sample that will be exported to a foreign laboratory or that will be imported to a United States laboratory from a foreign source must additionally not exceed twenty-five kilograms.
5. Treatability study samples.
a. Except as provided in subdivision b, persons who generate or collect samples for the purpose of conducting treatability studies as defined in section 33.1-24-01-04 are not subject to any requirement of 33.1-24-02 through 33.1-24-04 or to the notification requirements, nor are such samples included in the quantity determination of subsection 2 of section 33.1-24-03-03 and section 33.1-24-03-29 when:
(1) The sample is being collected and prepared for transportation by the generator or sample collectors;
(2) The sample is being accumulated or stored by the generator or sample collector prior to transportation to a laboratory or testing facility; or
(3) The sample is being transported to the laboratory or testing facility for the purpose of conducting a treatability study.
b. The exemption in subdivision a is applicable to samples of hazardous waste being collected and shipped for the purpose of conducting treatability studies provided that:
(1) The generator or sample collector uses, in "treatability studies", no more than ten thousand kilograms of media contaminated with nonacute hazardous waste, one thousand kilograms of nonacute hazardous waste other than contaminated media, one kilogram of acute hazardous waste, twenty-five hundred kilograms of media contaminated with acute hazardous waste for each process being evaluated for each generated waste stream.
(2) The mass of each sample shipment does not exceed ten thousand kilograms; the ten thousand kilogram quantity may be all media contaminated with nonacute hazardous waste, or may include twenty-five hundred kilograms of media contaminated with acute hazardous waste, one thousand kilograms of hazardous waste, and one kilogram of acute hazardous waste.
(3) The sample must be packaged so that it will not leak, spill, or vaporize from its packaging during shipment and the requirements of subparagraph a or b are met.
(a) The transportation of each sample shipment complies with United States department of transportation, United States postal service, or any other applicable shipping requirements; or
(b) If the United States department of transportation, United States postal service, or other shipping requirements do not apply to the shipment of the sample, the following information must accompany the sample:
[1] The name, mailing address, and telephone number of the originator of the samples;
[2] The name, address, and telephone number of the facility that will perform the treatability study;
[3] The quantity of the sample;
[4] The date of shipment; and
[5] A description of the sample, including its hazardous waste number.
(4) The sample is shipped to a laboratory or testing facility which is exempt under subsection 6 of section 33.1-23-02-04 or has an appropriate hazardous waste permit or interim status.
(5) The generator or sample collector maintains the following records for a period ending three years after completion of the treatability study:
(a) Copies of the shipping document;
(b) A copy of the contract with the facility conducting the treatability study;
(c) Documentation showing:
[1] The amount of waste shipped under this exemption;
[2] The name, address, and identification number of the laboratory or testing facility that received the waste;
[3] The date the shipment was made; and
[4] Whether unused samples and residues were returned to the generator.
(6) The generator reports the information required under subparagraph c of paragraph 5 in its biennial report.
c. The department may grant requests, on a case-by-case basis, for up to an additional two years for treatability studies involving bioremediation. The department may grant requests on a case-by-case basis for quantity limits in excess of those specified in paragraphs 1 and 2 of subdivision b and subdivision d of subsection 6, for up to an additional five thousand kilograms of media contaminated with nonacute hazardous waste, five hundred kilograms of nonacute hazardous waste, twenty-five hundred kilograms of media contaminated with acute hazardous waste, and one kilogram of acute hazardous waste:
(1) In response to requests for authorization to ship, store, and conduct treatability studies on additional quantities in advance of commencing treatability studies. Factors to be considered in reviewing such requests include the nature of the technology, the type of process, for example, batch versus continuous, size of the unit undergoing testing, particularly in relation to scale-up considerations, the time and quantity of material required to reach steady state operating conditions, or test design considerations such as mass balance calculations.
(2) In response to requests for authorization to ship, store, and conduct treatability studies on additional quantities after initiation or completion of initial treatability studies, when there has been an equipment or mechanical failure during the conduct of the treatability study; there is a need to verify the results of a previous study; there is a need to study and analyze alternative techniques within a previously evaluated process; or there is a need to do further evaluation of an ongoing treatability study to determine final specifications for treatment.
(3) The additional quantities and timeframes allowed in paragraphs 1 and 2 are subject to all the provisions in subdivision a and paragraphs 3 through 6 of subdivision b. The generator or sample collector must apply to the department and provide in writing the following information:
(a) The reason why the generator or sample collector requires additional time or quantity of sample for treatability study evaluation and the additional time or quantity needed;
(b) Documentation accounting for all samples of hazardous waste from the waste stream which have been sent for or undergone treatability studies, including the date each previous sample from the waste stream was shipped, the quantity of each previous shipment, the laboratory or testing facility to which it was shipped, what treatability study processes were conducted on each sample shipped, and the available results on each treatability study;
(c) A description of the technical modifications or change in specifications which will be evaluated and the expected results;
(d) If such further study is being required due to equipment of mechanical failure, the applicant must include information regarding the reason for the failure or breakdown and also include what procedures or equipment improvements have been made to protect against further breakdowns; and
(e) Such other information that the department considers necessary.
d. In order to qualify for the exemption in paragraph 1 of subdivision a, the mass of a sample that will be exported to a foreign laboratory or that will be imported to a United States laboratory from a foreign source must additionally not exceed twenty-five kilograms.
6. Samples undergoing treatability studies at laboratories and testing facilities. Samples undergoing treatability studies and the laboratory or testing facility conducting such treatability studies, to the extent such facilities are not otherwise subject to hazardous waste requirements, are not subject to any requirements of this article, or to the notification requirements provided that the conditions of subdivisions a through k are met. A mobile treatment unit may qualify as a testing facility subject to subdivisions a through k. Where a group of mobile treatment units are located at the same site, the limitations specified in subdivisions a through k apply to the entire group of mobile treatment units collectively as if the group were one mobile treatment unit.
a. No less than forty-five days before conducting treatability studies, the facility notifies the department in writing that it intends to conduct treatability studies under this subsection.
b. The laboratory or testing facility conducting the treatability study has an identification number.
c. No more than a total of ten thousand kilograms of "as received" media contaminated with nonacute hazardous waste, twenty-five hundred kilograms of media contaminated with acute hazardous waste, or two hundred fifty kilograms of other "as received" hazardous waste is subject to initiation of treatment in all treatability studies in any single day. "As received" wastes refers to the waste as received in the shipment from the generator or sample collector.
d. The quantity of "as received" hazardous waste stored at the facility for the purpose of evaluation in treatability studies does not exceed ten thousand kilograms, the total of which can include ten thousand kilograms of media contaminated with nonacute hazardous waste, twenty-five hundred kilograms of media contaminated with acute hazardous waste, one thousand kilograms of nonacute hazardous waste other than contaminated media, and one kilogram of acute hazardous waste. This quantity limitation does not include treatment materials, including nonhazardous solid waste, added to "as received" hazardous waste.
e. No more than ninety days have elapsed since the treatability study for the sample was completed, or no more than one year, two years for treatability studies involving bioremediation, have elapsed since the generator or sample collector shipped the sample to the laboratory or testing facility, whichever date occurs first. Up to five hundred kilograms of treated material from a particular waste stream from treatability studies may be archived for future evaluation up to five years from the date of initial receipt. Quantities of materials archived are counted against the total storage limit for the facility.
f. The treatability study does not involve the placement of hazardous waste on the land or open burning of hazardous waste.
g. The facility maintains records for three years following completion of each study that shows compliance with the treatment rate limits and the storage time and quantity limits. The following specific information must be included for each treatability study conducted:
(1) The name, address, and identification number of the generator or sample collector of each waste sampled;
(2) The date the shipment was received;
(3) The quantity of waste accepted;
(4) The quantity of "as received" waste in storage each day;
(5) The date the treatment study was initiated and the amount of "as received" waste introduced to treatment each day;
(6) The date the treatability study was concluded; and
(7) The date any unused sample or residues generated from the treatability study were returned to the generator or sample collector or, if sent to a designated facility, the name of the facility and the identification number.
h. The facility keeps, onsite, a copy of the treatability study contract and all shipping papers associated with the transport of treatability study samples to and from the facility for a period ending three years from the completion date of each treatability study.
i. The facility prepares and submits a report to the department by March fifteenth of each year that includes the following information for the previous calendar year:
(1) The name, address, and identification number of the facility conducting the treatability study;
(2) The types, by process, of treatability studies conducted;
(3) The names and addresses of persons for whom studies have been conducted, including their identification numbers;
(4) The total quantity of waste in storage each day;
(5) The quantity and type of waste subjected to treatability studies;
(6) When each treatability study was conducted; and
(7) The final disposition of residues and unused samples from each treatability study.
j. The facility determines whether any unused sample or residues generated by the treatability study are hazardous waste under section 33.1-24-02-03 and, if so, are subject to 33.1-24-02 through 33.1-24-06, unless the residues and unused samples are returned to the sample originator under the subsection 5 of section 33.1-24-02-04 exemption.
k. The facility notifies the department by letter when the facility is no longer planning to conduct any treatability studies at the site.
7. Polychlorinated biphenyl wastes regulated under Toxic Substance Control Act. The disposal of polychlorinated biphenyl-containing dielectric fluid and electric equipment containing such fluid authorized for use and regulated under 40 CFR 761 and that are hazardous only because they fail the test for the toxicity characteristic (hazardous waste codes D018 through D043 only) are exempt from regulation under this article, and the notification requirements.
8. Dredged material that is not a hazardous waste. Dredged material that is subject to the requirements of a permit that has been issued under section 404 of the Federal Water Pollution Control Act [33 U.S.C. 1344] or section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972 [33 U.S.C. 1413] is not a hazardous waste. For this subsection, the following definitions apply:
a. The term dredged material has the same meaning as defined in 40 CFR 232.2.
b. The term permit means:
(1) A permit issued by the United States army corps of engineers (corps) or an approved state under section 404 of the Federal Water Pollution Control Act [33 U.S.C. 1344];
(2) A permit issued by the corps under section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972 [33 U.S.C. 1413]; or
(3) In the case of corps civil work projects, the administrative equivalent of the permits referred to in paragraphs 1 and 2, as provided for in corps regulations (for example, see 33 CFR 336.1, 336.2, and 337.6).
9. Carbon dioxide stream injected for geologic sequestration. Carbon dioxide streams that are captured and transported for purposes of injection into an underground injection well subject to the requirements for class VI underground injection control wells, including the requirements in 40 CFR parts 144 and 146 of the underground injection control program of the Safe Drinking Water Act, are not a hazardous waste, provided the following conditions are met:
a. Transportation of the carbon dioxide stream must be in compliance with United States department of transportation requirements, including the pipeline safety laws [49 United States code 60101 et seq.] and regulations [49 CFR parts 190-199] of the United States department of transportation, and pipeline safety regulations adopted and administered by a state authority pursuant to a certification under 49 United States code 60105, as applicable;
b. Injection of the carbon dioxide stream must be in compliance with the applicable requirements for class VI underground injection control wells, including the applicable requirements in 40 CFR parts 144 and 146;
c. No hazardous wastes shall be mixed with, or otherwise coinjected with, the carbon dioxide stream; and
d. Certification statements:
(1) Any generator of a carbon dioxide stream, who claims that a carbon dioxide stream is excluded under this subsection, must have an authorized representative (as defined in section 33.1-24-01-04) sign a certification statement worded as follows: I certify under penalty of law that the carbon dioxide stream that I am claiming to be excluded under subsection 9 of section 33.1-24-02-04 has not been mixed with hazardous wastes, and I have transported the carbon dioxide stream in compliance with (or have contracted with a pipeline operator or transporter to transport the carbon dioxide stream in compliance with) department of transportation requirements, including the pipeline safety laws [49 United States code 60101 et seq.] and regulations [49 CFR parts 190-199] of the United States department of transportation, and the pipeline safety regulations adopted and administered by a state authority pursuant to a certification under 49 United States code 60105, as applicable, for injection into a well subject to the requirements for the class VI underground injection control program of the Safe Drinking Water Act.
(2) Any class VI underground injection control well owner or operator, who claims that a carbon dioxide stream is excluded under this subsection, must have an authorized representative (as defined in section 33.1-24-01-04) sign a certification statement worded as follows: I certify under penalty of law that the carbon dioxide stream that I am claiming to be excluded under subsection 9 of section 33.1-24-02-04 has not been mixed with, or otherwise coinjected with, hazardous waste at the underground injection control class VI permitted facility, and that injection of the carbon dioxide stream is in compliance with the applicable requirements for underground injection class VI wells, including the applicable requirements in 40 CFR parts 144 and 146.
(3) The signed certification statement must be kept onsite for no less than three years, and must be made available within seventy-two hours of a written request from the administrator, regional administrator, or the department, or their designee. The signed certification statement must be renewed every year that the exclusion is claimed, by having an authorized representative (as defined in section 33.1-24-01-04) annually prepare and sign a new copy of the certification statement within one year of the date of the previous statement. The signed certification statement must also be readily accessible on the facility's publicly available website (if such website exists) as a public notification with the title of "carbon dioxide stream certification" at the time the exclusion is claimed.
10. Airbag wastes. Airbag waste at the airbag waste handler or during transport to an airbag waste collection facility or designated facility is not subject to regulations under chapters 3 through 7 of 33.1-24, and is not subject to the notification requirements of section 3010 of the Resource Conversation and Recovery Act provided that:
a. The airbag waste is accumulated in a quantity of no more than two hundred fifty airbag modules or airbag inflators, for no longer than one hundred eighty days;
b. The airbag waste is packaged in a container designed to address the risk posed by the airbag waste and labeled "Airbag Waste - Do Not Reuse[];
c. The airbag waste is sent directly to either:
(1) An airbag waste collection facility in the United States under the control of a vehicle manufacturer or their authorized representative, or under the control of an authorized party administering a remedy program in response to a recall under the national highway traffic safety administration; or
(2) A designated facility as defined in subsection 35 of section 33.1-24-01-04;
d. The transport of the airbag waste complies with all applicable United States department of transportation regulations in 49 CFR part 171 through 180 during transit;
e. The airbag waste handler maintains at the handler facility for no less than three years records of all offsite shipments of airbag waste and all confirmations of receipt from the receiving facility. For each shipment, these records must, at a minimum, contain the name of the transporter and date of the shipment; name and address of receiving facility; and the type and quantity of airbag waste (i.e., airbag modules or airbag inflators) in the shipment. Confirmations of receipt must include the name and address of the receiving facility; the type and quantity of the airbag waste (i.e., airbag modules and airbag inflators) received, and the date it was received. Shipping records and confirmations of receipt must be made available for inspection and may be satisfied by routine business records (e.g., electronic or paper financial records, bills of lading, copies of department of transportation shipping papers, or electronic confirmations of receipt).
f. Once the airbag waste arrives at an airbag waste collection facility or designated facility, it becomes subject to all applicable hazardous waste regulations, and the facility receiving airbag waste is considered the hazardous waste generator for the purposes of the hazardous waste regulations and must comply with the requirements of 33.1-24-03.
g. Reuse in vehicles of defective airbag modules or defective airbag inflators subject to a recall under the national highway traffic safety administration is considered sham recycling and is prohibited under subsection 7 of section 33.1-24-02-02.

Notes

N.D. Admin Code 33.1-24-02-04
Adopted by Administrative Rules Supplement 370, October 2018, effective January 1, 2019. Amended by Administrative Rules Supplement 2020-377, July 2020, effective July 1, 2020. Amended by Administrative Rules Supplement 2021-381, July 2021, effective July 1, 2021.

General Authority: NDCC 23.1-04-03

Law Implemented: NDCC 23.1-04-03, 23.1-04-05, 23.1-04-16; S.L. 2017, ch. 199, § 19

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