Section 720.134  Non-Waste Determinations

a)         A person generating, managing, or reclaiming hazardous secondary material may petition the Board pursuant to this Section, Section 720.133 and Section 28.2 of the Act [415 ILCS 5/28.2] for an adjusted standard that is a formal determination that a hazardous secondary material is not discarded and therefore is not a solid waste.  The Board's adjusted standard determination will be based on the criteria contained in either subsection (b) or (c) of this Section, as applicable.  If the Board denies the petition, the hazardous secondary material might still be eligible for a solid waste determination pursuant to Section 720.131 or an exclusion.  A determination made by the Board pursuant to this Section becomes effective upon occurrence of the first of the following two events:

1)         After USEPA has authorized Illinois to administer this segment of the hazardous waste regulations, the determination is effective upon issuance of the Board order that grants the non-waste determination; or

2)         Before USEPA has granted such authorization, the non-waste determination becomes effective upon fulfillment of all of the following conditions:

A)        The Board has granted an adjusted standard which determines that the hazardous secondary material meets the criteria in either subsection (b) or (c) of this Section, as applicable;

B)        The Agency has requested that USEPA review the Board's non-waste determination; and

C)        USEPA has approved the Board's non-waste determination.

b)         The Board will grant a non-waste determination for hazardous secondary material that is reclaimed in a continuous industrial process if the Board determines that the applicant has demonstrated that the hazardous secondary material is a part of the production process and the material is not discarded.  The determination will be based on whether the hazardous secondary material is legitimately recycled, as determined pursuant to Section 720.143, and on the following criteria:

1)         The extent to which the management of the hazardous secondary material is part of the continuous primary production process and is not waste treatment;

2)         Whether the capacity of the production process would use the hazardous secondary material in a reasonable time frame and ensure that the hazardous secondary material will not be abandoned (for example, based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements);

3)         Whether the hazardous constituents in the hazardous secondary material are reclaimed, rather than released to the air, water, or land, at significantly higher levels, from either a statistical or from a health and environmental risk perspective, than would otherwise be released by the production process; and

4)         Other relevant factors which demonstrate that the hazardous secondary material is not discarded.

c)         The Board will grant a non-waste determination for a hazardous secondary material that is indistinguishable in all relevant aspects from a product or intermediate if the petitioner demonstrates that the hazardous secondary material is comparable to a product or intermediate and is not discarded.  The Board's determination will be based on whether the hazardous secondary material is legitimately recycled, as determined pursuant to Section 720.143, and on the following criteria:

1)         Whether market participants treat the hazardous secondary material as a product or intermediate, rather than as a waste (for example, based on the current positive value of the hazardous secondary material, stability of demand, or any contractual arrangements);

2)         Whether the chemical and physical identity of the hazardous secondary material is comparable to commercial products or intermediates;

3)         Whether the capacity of the market would use the hazardous secondary material in a reasonable time frame and ensure that the hazardous secondary material will not be abandoned (for example, based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements);

4)         Whether the hazardous constituents in the hazardous secondary material are reclaimed, rather than released to the air, water, or land, at significantly higher levels, from either a statistical or from a health and environmental risk perspective, than would otherwise be released by the production process; and

5)         Other relevant factors which demonstrate that the hazardous secondary material is not discarded.

BOARD NOTE:  USEPA intended that use of the non-waste determination procedure is voluntary.  By this procedure, the generator or other person managing a hazardous secondary material may obtain a formal determination that a particular use of a hazardous secondary material is legitimate recycling.  The generator and others managing the material may independently make a determination pursuant to Section 720.143 and manage the material under one of the exemptions from the definition of solid waste codified at 35 Ill. Adm. Code 721.102(a)(2)(ii) or 721.104(a)(23), (a)(24), or (a)(25).  See 73 Fed. Reg. 64668, 74710 (Oct. 30, 2008).

(Source:  Added at 34 Ill. Reg. 18535, effective November 12, 2010)