North Dakota Administrative Code › Title 33.1 - Department of Environmental Quality › Article 33.1-24 - Hazardous Waste Management › Chapter 33.1-24-02 - IDENTIFICATION AND LISTING OF HAZARDOUS WASTE › Section 33.1-24-02-04 - Exclusions

Current through Supplement No. 393, July, 2024
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.