No. 43079 (Amendment): Rule R315-260. Hazardous Waste Management System

(Amendment)

DAR File No.: 43079
Filed: 07/12/2018 03:30:24 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

In 2015, the EPA published final revisions to rules regulating the definition of solid waste that exclude certain hazardous secondary materials from regulation. The state of Utah adopted these rules in January of 2016. The federal rules were challenged in the United States Court of Appeals for the District of Columbia Circuit on 07/07/2017, and amended on 03/06/2018, and the court issued orders vacating certain provisions of the 2015 rule and reinstated corresponding provisions from a rule proposed in 2008. These proposed changes incorporate the revisions required by the court's orders.

Summary of the rule or change:

Section R315-260-30 is amended by removing Subsection R315-260-30(f) which allowed the Director to exclude from the definition of solid waste hazardous secondary materials that were transferred for reclamation at a verified reclamation facility. Section R315-260-31 is amended by removing Subsection R315-260-31(d) which contained the criteria for becoming a verified reclamation facility. Section R315-260-42 is amended by adding Subsection R315-260-42(a)(5) which requires reclaimers and intermediate facilities managing hazardous secondary materials to submit, along with other information, whether the reclaimer or intermediate facility has financial assurance. Section R315-260-43 is amended by removing Subsection R315-260-43(a)(4) which was one of the four mandatory factors used to determine if a facilityï¿½s recycling is legitimate. Subsection R315-260-43(a) is amended to require facilities to meet three mandatory criteria in determining if their recycling is legitimate and to consider a fourth set of criteria which is added at Subsection R315-260-43(b).

Statutory or constitutional authorization for this rule:

Section 19-6-104
Section 19-6-106
Section 19-6-105

Anticipated cost or savings to:

the state budget:

This rule change will not affect the state budget because no state governmental entity is a verified recycler of hazardous secondary materials and does not generate or recycle hazardous secondary materials.

local governments:

This rule change will not affect any local governments because no local governments are verified recyclers of hazardous secondary materials and do not generate or recycle hazardous secondary materials.

small businesses:

It is anticipated that there will be no change in costs or savings to small businesses because there are no small businesses in the state of Utah that are registered as verified recyclers of hazardous secondary materials. Additionally, the change to the factors for determining the legitimacy of recycling operations for hazardous secondary materials simply replaces a mandatory factor with a factor to be considered, but not required, for the process to be considered legitimate.

persons other than small businesses, businesses, or local governmental entities:

It is anticipated that there will be no change in costs or savings to persons other than small businesses, businesses or local governments because there are no such persons in the state of Utah that are registered as verified recyclers of hazardous secondary materials. Additionally, the change to the factors for determining the legitimacy of recycling operations for hazardous secondary materials simply replaces a mandatory factor with a factor to be considered, but not required, for the process to be considered legitimate.

Compliance costs for affected persons:

It is anticipated that there will be no additional compliance costs for affected persons associated with these rule amendments since they replace mandatory requirements with more discretionary considerations.

Comments by the department head on the fiscal impact the rule may have on businesses:

Since this rule was adopted in January of 2016, there have been no businesses in the state of Utah that have registered as verified recyclers. Only two businesses have notified that they are engaged in the recycling, either on-site or off-site, of hazardous secondary materials. It is not anticipated that these rule changes will have any fiscal impact on the operation of these facilities.

Alan Matheson, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Environmental Quality
Waste Management and Radiation Control, Waste ManagementRoom Second Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3097

Direct questions regarding this rule to:

Rusty Lundberg at the above address, by phone at 801-536-4257, by FAX at 801-536-0222, or by Internet E-mail at rlundberg@utah.gov
Thomas Ball at the above address, by phone at 801-536-0251, by FAX at , or by Internet E-mail at tball@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/31/2018

This rule may become effective on:

09/14/2018

Authorized by:

Scott Anderson, Director

RULE TEXT

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs

FY 2019

FY 2020

FY 2021

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Person

Total Fiscal Costs:

Fiscal Benefits

State Government

Local Government

Small Businesses

Non-Small Businesses

Other Persons

Total Fiscal Benefits:

Net Fiscal Benefits:

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

Appendix 2: Regulatory Impact to Non - Small Businesses

This rule change is not expected to have any fiscal impacts on non-small businesses revenues or expenditures, because there are no businesses in the state of Utah that are registered as verified recyclers or intermediate facilities reclaiming hazardous secondary materials. Additionally there are only two facilities with NAICS codes 33231 and 324110 in the state of Utah that have notified the Division of Waste Management and Radiation Control, Waste Management that they are engaged in the recycling, either on-site or off-site, of hazardous secondary materials and the rule changes is not expected to have any fiscal impact on them since they replace mandatory requirements with more discretionary considerations.

The head of Department of Environmental Quality, Alan Matheson, has reviewed and approved this fiscal analysis.

R315. Environmental Quality, Waste Management and Radiation Control, Waste Management.

R315-260. Hazardous Waste Management System.

R315-260-30. Non-Waste Determinations and Exclusion from Classification as a Solid Waste.

In accordance with the standards and criteria in Sections R315-260-31 and 34 and the procedures in Section R315-260-33, the Director may determine on a case-by-case basis that the following recycled materials are not solid wastes:

(a) Materials that are accumulated speculatively without sufficient amounts being recycled, as defined in Subsection R315-261-1(c)(8);

(b) Materials that are reclaimed and then reused within the original production process in which they were generated;

(d) Hazardous secondary materials that are reclaimed in a continuous industrial process; and

(e) Hazardous secondary materials that are indistinguishable in all relevant aspects from a product or intermediate[~~; and~~

(f) Hazardous secondary materials that are transferred for reclamation under Subsection R315-261-4(a)(24) and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a Part B permit or interim status standards].

R315-260-31. Standards and Criteria for Exclusion from Classification as a Solid Waste.

(a) The Director may grant requests for exclusion from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year. If exclusion is granted, it is valid only for the following year, but can be renewed, on an annual basis, by filing a new application. The Director's decision will be based on the following criteria:

(1) The manner in which the material is expected to be recycled, when the material is expected to be recycled, and whether this expected disposition is likely to occur, for example, because of past practice, market factors, the nature of the material, or contractual arrangements for recycling;

(2) The reason that the applicant has accumulated the material for one or more years without recycling 75 percent of the volume accumulated at the beginning of the year;

(3) The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled;

(4) The extent to which the material is handled to minimize loss; and

(5) Other relevant factors.

(b) The Director may grant requests for exclusion from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria:

(1) How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;

(2) The extent to which the material is handled before reclamation to minimize loss;

(3) The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;

(4) The location of the reclamation operation in relation to the production process;

(5) Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form;

(6) Whether the person who generates the material also reclaims it; and

(7) Other relevant factors.

(c) The Director may grant requests for exclusion from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed, but must be reclaimed further before recovery is completed, if the partial reclamation has produced a commodity-like material. A determination that a partially-reclaimed material for which the change in classification is sought is commodity-like will be based on whether the hazardous secondary material is legitimately recycled as specified in Section R315-260-43 and on whether all of the following decision criteria are satisfied:

(1) Whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste;

(2) Whether the partially reclaimed material has sufficient economic value that it will be purchased for further reclamation;

(3) Whether the partially-reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials which is used in subsequent production steps;

(4) Whether there is a market for the partially-reclaimed material as demonstrated by known customer(s) who are further reclaiming the material, e.g., records of sales and/or contracts and evidence of subsequent use, such as bills of lading; and

(5) Whether the partially-reclaimed material is handled to minimize loss.

[(d) The Director may grant requests for an exclusion from classification as a solid waste those hazardous secondary materials that are transferred for reclamation under Subsection R315-261-4(a)(24) and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a Part B permit or interim status standards. The Director's decision will be based on the following criteria:

~~(1) The reclamation facility or intermediate facility shall demonstrate that the reclamation process for the hazardous secondary materials is legitimate pursuant to Section R315-260-43;~~

~~(2) The reclamation facility or intermediate facility shall satisfy the financial assurance condition in Subsection R315-261-4(a)(24)(vi)(F);~~

(3) The reclamation facility or intermediate facility shall not be subject to a formal enforcement action in the previous three years and not be classified as a significant non-complier, or shall provide credible evidence that the facility will manage the hazardous secondary materials properly. Credible evidence may include a demonstration that the facility has taken remedial steps to address the violations and prevent future violations, or that the violations are not relevant to the proper management of the hazardous secondary materials;

(4) The intermediate or reclamation facility shall have the equipment and trained personnel needed to safely manage the hazardous secondary material and shall meet emergency preparedness and response requirements under Sections R315-261-400 through 420;

(5) If residuals are generated from the reclamation of the excluded hazardous secondary materials, the reclamation facility shall have the permits required, if any, to manage the residuals, have a contract with an appropriately permitted facility to dispose of the residuals or present credible evidence that the residuals will be managed in a manner that is protective of human health and the environment, and

(6) The intermediate or reclamation facility shall address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment; i.e., releases that are not covered by a permit, such as a permit to discharge to water or air; which may include, but are not limited to, potential releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures, and shall include consideration of potential cumulative risks from other nearby potential stressors.]

R315-260-42. Notification Requirement for Hazardous Secondary Materials.

(a) Facilities managing hazardous secondary materials under [~~Subsections~~]Section R315-260-30, or Subsections R315-261-4(a)(23), (24), (25), or (27) shall send a notification prior to operating under the [~~exclusion(s)~~]regulatory provision and by March 1 of each even numbered year thereafter to the Director using EPA Form 8700-12 that includes the following information:

(1) The name, address, and EPA ID number, if applicable, of the facility;

(2) The name and telephone number of a contact person;

(3) The NAICS code of the facility;

(4) The regulation under which the hazardous secondary materials shall be managed;

(5) For reclaimers and intermediate facilities managing hazardous secondary materials in accordance with Subsections R315-261-4(a)(24) or (25), whether the reclaimer or intermediate facility has financial assurance (not applicable for persons managing hazardous secondary materials generated and reclaimed under the control of the generator);

([5]6) When the facility began or expects to begin managing the hazardous secondary materials in accordance with the regulation;

([6]7) A list of hazardous secondary materials that shall be managed according to the regulation, reported as the EPA hazardous waste numbers that would apply if the hazardous secondary materials were managed as hazardous wastes;

([7]8) For each hazardous secondary material, whether the hazardous secondary material, or any portion thereof, will be managed in a land-based unit;

([8]9) The quantity of each hazardous secondary material to be managed annually; and

([9]10) The certification, included in EPA Form 8700-12, signed and dated by an authorized representative of the facility.

(b) If a facility managing hazardous secondary materials has submitted a notification, but then subsequently stops managing hazardous secondary materials in accordance with the regulation(s) listed above, the facility shall notify the Director within thirty days using EPA Form 8700-12. For purposes of Section R315-260-42, a facility has stopped managing hazardous secondary materials if the facility no longer generates, manages and/or reclaims hazardous secondary materials under the regulation(s) above and does not expect to manage any amount of hazardous secondary materials for at least 1 year.

R315-260-43. Legitimate Recycling of Hazardous Secondary Materials.

(a) Recycling of hazardous secondary materials for the purpose of the exclusions or exemptions from the hazardous waste regulations shall be legitimate. Hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste. In determining if their recycling is legitimate, persons shall address all the requirements of Subsections R315-260-43(a)(1) through ([4]3) and shall consider the requirements of Subsection R315-260-43(b).

(1) Legitimate recycling shall involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process. The hazardous secondary material provides a useful contribution if it:

(i) Contributes valuable ingredients to a product or intermediate; or

(ii) Replaces a catalyst or carrier in the recycling process; or

(iii) Is the source of a valuable constituent recovered in the recycling process; or

(iv) Is recovered or regenerated by the recycling process; or

(v) Is used as an effective substitute for a commercial product.

(2) The recycling process shall produce a valuable product or intermediate. The product or intermediate is valuable if it is:

(i) Sold to a third party; or

(ii) Used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process.

(3) The generator and the recycler shall manage the hazardous secondary material as a valuable commodity when it is under their control. Where there is an analogous raw material, the hazardous secondary material shall be managed, at a minimum, in a manner consistent with the management of the raw material or in an equally protective manner. Where there is no analogous raw material, the hazardous secondary material shall be contained. Hazardous secondary materials that are released to the environment and are not recovered immediately are discarded.

(b) The following factor shall be considered in making a determination as to the overall legitimacy of a specific recycling activity.

(1) The product of the recycling process does not:

(i) Contain significant concentrations of any hazardous constituents found in Section R315-261-1092 that are not found in analogous products; or

(ii) Contain concentrations of hazardous constituents found in Section R315-261-1092 at levels that are significantly elevated from those found in analogous products, or

(iii) Exhibit a hazardous characteristic, as defined in Subsections R315-261-20 through 24, that analogous products do not exhibit.

(2) In making a determination that a hazardous secondary material is legitimately recycled, persons shall evaluate all factors and consider legitimacy as a whole. If, after careful evaluation of these considerations, the factor in this paragraph is not met, then this fact may be an indication that the material is not legitimately recycled. However, the factor in this paragraph does not have to be met for the recycling to be considered legitimate. In evaluating the extent to which this factor is met and in determining whether a process that does not meet this factor is still legitimate, persons can consider exposure from toxics in the product, the bioavailability of the toxics in the product and other relevant considerations.

[~~(4) The product of the recycling process shall be comparable to a legitimate product or intermediate:~~

~~(i) Where there is an analogous product or intermediate, the product of the recycling process is comparable to a legitimate product or intermediate if:~~

~~(A) The product of the recycling process does not exhibit a hazardous characteristic, as defined in Sections R315-261-20 through 24, that analogous products do not exhibit, and~~

(B) The concentrations of any hazardous constituents found in appendix VIII of Rule R315-261 that are in the product or intermediate are at levels that are comparable to or lower than those found in analogous products or at levels that meet widely-recognized commodity standards and specifications, in the case where the commodity standards and specifications include levels that specifically address those hazardous constituents.

~~(ii) Where there is no analogous product, the product of the recycling process is comparable to a legitimate product or intermediate if:~~

~~(A) The product of the recycling process is a commodity that meets widely recognized commodity standards and specifications, e.g., commodity specification grades for common metals, or~~

~~(B) The hazardous secondary materials being recycled are returned to the original process or processes from which they were generated to be reused, e.g., closed loop recycling.~~

(iii) If the product of the recycling process has levels of hazardous constituents that are not comparable to or unable to be compared to a legitimate product or intermediate per Subsection R315-260-43(a)(4)(i) or (ii), the recycling still may be shown to be legitimate, if it meets the following specified requirements. The person performing the recycling shall conduct the necessary assessment and prepare documentation showing why the recycling is, in fact, still legitimate. The recycling can be shown to be legitimate based on lack of exposure from toxics in the product, lack of the bioavailability of the toxics in the product, or other relevant considerations which show that the recycled product does not contain levels of hazardous constituents that pose a significant human health or environmental risk. The documentation shall include a certification statement that the recycling is legitimate and shall be maintained on-site for three years after the recycling operation has ceased. The person performing the recycling shall notify the Director of this activity using EPA Form 8700-12.]

KEY: hazardous waste

Date of Enactment or Last Substantive Amendment: [~~August 31, 2017~~]2018

Authorizing, and Implemented or Interpreted Law: 19-1-301; 19-6-105; 19-6-106