Section 329IAC3.1-6-5. Secondary materials

   (a) A secondary material that causes no significant increase in the threat posed to human health or the environment as defined in subsection (e)(4) is not a solid waste if it:

(1) does not meet the definition of solid waste under 40 CFR 261.2(e); or

(2) is legitimately utilized as defined under 329 IAC 3.1-4-25.1 in an industrial process, except reclamation as defined under 329 IAC 3.1-4-21.1.

  (b) A secondary material generated as a result of the utilization of a secondary material that does not qualify as an exempt secondary material is a solid waste and subject to a waste determination as to the waste's status as a hazardous waste as follows:

(1) This waste determination shall be conducted according to the requirements of 40 CFR 262.11.

(2) In the case of a secondary material that is listed under this rule, a solid waste generated from the utilization in accordance with this section does not retain the listing from which the secondary material is derived.

  (c) There is no requirement for a permit under this article for the use of a secondary material as a manufacturing ingredient when used as a legitimate manufacturing ingredient in accordance with the requirements of this section.

  (d) The commissioner shall:

(1) provide a written determination for recognition of the secondary material exemption upon request; and

(2) respond no later than ninety (90) days after the request is received.

  (e) In making a determination on legitimate use of secondary materials, the following criteria shall be considered, when relevant, for determining legitimate use and exempt status:

(1) The secondary material must be utilized in the manufacturing process without intervening reclamation or recovery.

(2) Transportation must be directly between the generator of the secondary material and the user of the secondary material.

(3) The secondary material or the resultant product, or both, must not be accumulated speculatively as defined at 40 CFR 261.1(a)(8).

(4) The secondary material must be handled in a manner that poses no significant increase in the threat to human health or the environment beyond that posed by the use of the raw material being replaced. This may be demonstrated by showing the secondary material is handled in a manner that is:

(A) consistent with the raw materials being replaced; and

(B) guards against loss or release during storage.

(5) The manufacturing process cannot be a reclamation activity. In evaluating this factor, the commissioner will use the definition of reclamation in 329 IAC 3.1-4-21.1 to distinguish between reclamation and other manufacturing processes.

(6) The secondary material must be a legitimate ingredient necessary to the production process or product. This may be demonstrated by showing any of the following:

(A) The secondary material is effective in the manufacturing process.

(B) The secondary material is used under controlled conditions.

(C) The user documents and can show through records how, when, and in what volumes the secondary material is used.

(D) In two-party transactions, there is consideration, usually monetary, reflecting the value of the secondary material to the user.

(E) There are written specifications for the incoming material and the product.

(F) There is a program in place by which the user verifies that incoming materials meet established specifications.

(7) The person must demonstrate that there is a market for the product. This may be demonstrated by showing any of the following:

(A) Industry-recognized quality specifications for the product.

(B) Any recognitions of the product as a commodity.

(C) Contracts for purchase of the product or other agreements.

  (f) The product cannot be burned for energy recovery or used in a manner constituting disposal unless the secondary material is a fuel or originally intended to be used in a manner involving placement on the land. (Solid Waste Management Division; 329 IAC 3.1-6-5; filed Jan 3, 2000, 10:00 a.m.: 23 IR 1098; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535)