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Does the Material Meet the Regulatory Definition of Discarded Material?

"Discarded Material" is any material which is

0400-12-01-.02(1)(b)2. Materials are solid waste if they are “abandoned” by being:

(i) Disposed of; or

(ii) Burned or incinerated; or

(iii) Accumulated, stored, or treated (but not recycled) before or in lieu of being
abandoned by being disposed of, burned, or incinerated; or

(iv) Sham recycled, as explained in part 7 of this subparagraph.

 

0400-12-01-.02(1)(b)7. Sham recycling.

A hazardous secondary material found to be sham recycled is considered
discarded and a solid waste. Sham recycling is recycling that is not legitimate
recycling as defined in subparagraph (5)(d) of Rule 0400-12-01-.01.

0400-12-01-.02(1)(b)3. Materials are solid wastes if they are “recycled” – or accumulated, stored, or
treated before recycling – as specified in subparts (i) through (iv) of this part:

(i) “Used in a manner constituting disposal”.

I) Materials noted with a “*” in Column 1 of Table 1 are solid wastes
when they are:

I. Applied to or placed on the land in a manner that constitutes
disposal; or

II. Used to produce products that are applied to or placed on the
land or are otherwise contained in products that are applied to
or placed on the land (in which cases the product itself
remains a solid waste).

(II) However, commercial chemical products listed in subparagraph
(4)(d) of this rule are not solid wastes if they are applied to the land
and that is their ordinary manner of use.

(ii) “Burning for energy recovery”

(I) Materials noted with a “*” in column 2 of Table 1 are solid wastes
when they are:

I. Burned to recover energy;

II. Used to produce a fuel or are otherwise contained in fuels (in
which cases the fuel itself remains a solid waste).

(II) However, commercial chemical products listed in subparagraph
(4)(d) of this rule are not solid wastes if they are themselves fuels.

(iii) “Reclaimed”
Materials noted with a “---” in column 3 of Table 1 are not solid wastes
when reclaimed. Materials noted with a “*” in column 3 of Table 1 are solid
wastes when reclaimed unless they meet the requirements of subparts
(d)1(xvii), (xxiii), (xxiv) or (xxvii) of this paragraph.

(iv) “Accumulated speculatively”
Materials noted with a “*” in column 4 of Table 1 are solid wastes when
accumulated speculatively.

Table 1
  Use constituting disposal (subpart (1)(b)3(i) of this rule)  Energy recovery/fuel (subpart (1)(b)3(ii) of this rule)  Reclamation (subpart (1)(b)3(iii) of this rule) except as provided in subpart (1)(d)1(xvii), (xxiii), (xxiv) or (xxvii) of this rule Speculative accumulation (subpart (1)(b)3(iv) of this rule) 
  (1) (2) (3) (4)
Spent Materials (*) (*) (*) (*)
Sludges [listed in Rule 0400-12-01- .02(4)(b) or (c)]  (*) (*) (*) (*)
Sludges exhibiting a characteristic of hazardous waste  (*) (*) - (*)
By-products [listed in Rule 0400-12- 01-.02(4)(b) or (c)]  (*) (*) (*) (*)
By-products exhibiting a characteristic of hazardous waste   (*) (*) - (*)
Commercial chemical products listed in Rule 0400-12-01-.02(4)(d)  (*) (*) - -
Scrap metal that is not excluded under Rule 0400-12-01- .02(1)(d)1(xiii) (*) (*) (*) (*)

(Note: The terms “spent materials”, “sludges”, “by-products”, “scrap metal” and “processed scrap metal” are defined in part (1)(a)3 of this rule.)

(Note: Unused commercial chemical products and unused manufactured articles, which are not listed in subparagraph (4)(d) of this rule, that exhibit a characteristic of hazardous waste in accordance with paragraph (3) of this rule shall have the same status as commercial chemical products listed in subparagraph (4)(d) of this rule when reclaimed. These non-listed commercial chemical products or manufactured articles are not solid waste when legitimately recycled except when they are recycled in ways that differ from their normal manner of use.)

0400-12-01-.02(1)(b)5. “Materials that are not solid waste when recycled”

(i) Materials are not solid wastes when they can be shown to be recycled by
being:

(I) Used or reused as ingredients in an industrial process to make a
product, provided the materials are not being reclaimed; or

(II) Used or reused as effective substitutes for commercial products; or

(III) Returned to the original process from which they are generated,
without first being reclaimed or land disposed. The material must be
returned as a substitute for feedstock materials. In cases where the
original process to which the material is returned is a secondary
process, the materials must be managed such that there is no 
placement on the land. In cases where the materials are generated
and reclaimed within the primary mineral processing industry, the
conditions of the exclusion found at subpart (d)1(xvii) of this
paragraph apply rather than this item.

(ii) The following materials are solid wastes, even if the recycling involves use,
reuse, or return to the original process (described in items (i)(I) through (III)
of this part):

(I) Materials used in a manner constituting disposal, or used to produce
products that are applied to the land; or

(II) Materials burned for energy recovery, used to produce a fuel, or
contained in fuels; or

(III) Materials accumulated speculatively; or

(IV) Materials listed in subparts 4(i) and 4(ii) of this subparagraph.  

0400-12-01-.02(1)(b)6. “Documentation of claims that materials are not solid wastes or are conditionally
exempt from regulation”.

Respondents in actions to enforce regulations implementing the Act and Chapter
0400-12-01 who raise a claim that a certain material is not a solid waste, or is
conditionally exempt from regulation, must demonstrate that there is a known
market or disposition for the material, and that they meet the terms of the
exclusion or exemption. In doing so, they must provide appropriate
documentation (such as contracts showing that a second person uses the
material as an ingredient in a production process) to demonstrate that the
material is not a waste, or is exempt from regulation. In addition, owners or
operators of facilities claiming that they actually are recycling materials must
show that they have the necessary equipment to do so. 

0400-12-01-.02(1)(b)7. Sham recycling.

A hazardous secondary material found to be sham recycled is considered
discarded and a solid waste. Sham recycling is recycling that is not legitimate
recycling as defined in subparagraph (5)(d) of Rule 0400-12-01-.01.

0400-12-01-.01(5)(d)  Legitimate recycling of hazardous secondary materials [40 CFR 260.43]

1. Recycling of hazardous secondary materials for the purpose of the exclusions or
exemptions from the hazardous waste regulations must 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, all persons must
address the requirements of part 2 of this subparagraph and persons regulated
under part (4)(c)3 and subparagraph (4)(e) of this rule and subparts (1)(d)1(xxiii)
and (xxiv) of rule 0400-12-01-.02 must address the requirements of part 3 of this
subparagraph.

2. Requirements that must be addressed by all persons recycling hazardous
secondary materials:

(i) Legitimate recycling must 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.

(ii) The recycling process must 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.

(iii) The generator and the recycler must 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
must 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
must be contained. Hazardous secondary materials that are released to
the environment and are not recovered immediately are discarded.

3. Requirements that must be addressed by persons regulated under part (4)(c)3
and subparagraph (4)(e) of this rule and subparts (1)(d)1(xxiii) and (xxiv) of Rule
0400-12-01-.02.

(i) The product of the recycling process must 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:

I. The product of the recycling process does not exhibit a
hazardous characteristic (as defined in paragraph (3) of Rule
0400-12-01-.02) that analogous products do not exhibit, and

II. The concentrations of any hazardous constituents found in
appendix VIII of paragraph (30) of Rule 0400-12-01-.02 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:

I. 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
(Note: For specialty products such as specialty batch
chemicals or specialty metal alloys, customer specifications
would be sufficient.)

II. 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).
(Note: There is no analogous product when the hazardous
secondary material is recycled by being returned to the original
production process or processes. Production process or
processes includes those activities that tie directly into the
manufacturing operation or those activities that are the primary
operation at an establishment.)

(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 item (I) or (II) of this subpart,
the recycling still may be shown to be legitimate, if it meets the
following specified requirements. The person performing the
recycling must 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 product made using recycled material does not contain
levels of hazardous constituents that pose a significant human health
or environmental risk. The documentation must include a certification
statement that the recycling is legitimate and must be maintained onsite
for three years after the recycling operation has ceased. The
person performing the recycling must notify the Commissioner of this
activity using forms provided by the department.
(Note: To comply with the requirements of this subpart, a generator of the
hazardous secondary material, product or intermediate may use its
knowledge of the materials it recycles and of the recycling process to make
legitimacy determinations.)

(ii) Reserved.

(Note: A person who meets the specific provisions included in 0400-12-01-.02(1)(b)3
Table 1, 0400-12-01-.02(1)(b)5, 0400-12-01-.02(1)(d)1(vi) through (xxii), 0400-12-01-
.02(1)(f)1(ii)(III) and (IV), and 0400-12-01-.02(1)(f)1(iii)(I), are presumed to conduct
legitimate recycling.) 

0400-12-01-.02(1)(b)4. “Inherently waste-like materials”

The following materials are solid wastes when they are recycled in any manner:

(i) Hazardous Waste Codes F020, F021 (unless used as an ingredient to
make a product at the site of generation), F022, F023, F026, and F028.

(ii) Secondary materials fed to a halogen acid furnace that exhibit a
characteristic of a hazardous waste or are listed as a hazardous waste as
defined in paragraph (3) or (4) of this rule, except for brominated material
that meets the following criteria:

(I) The material must contain a bromine concentration of at least 45%;
and

(II) The material must contain less than a total of 1% of toxic organic
compounds listed in paragraph (30) Appendix VIII of this rule; and

(III) The material is processed continually on-site in the halogen acid
furnace via direct conveyance (hard piping).

(iii) The Board will use the following criteria to add wastes to that list:

(I)

I. The materials are ordinarily disposed of, burned, or
incinerated; or

II. The materials contain toxic constituents listed in paragraph
(30) Appendix VIII of this rule and these constituents are not
ordinarily found in raw materials or products for which the
materials substitute (or are found in raw materials or products
in smaller concentrations) and are not used or reused during
the recycling process; and

(II) The material may pose a substantial hazard to human health and the
environment when recycled.

0400-12-01-.09(13)(c) Definition of Solid Waste [40 CFR 266.202]

1. A military munition is not a solid waste when:

(i) Used for its intended purpose, including:

(I) Use in training military personnel or explosives and munitions
emergency response specialists (including training in proper
destruction of unused propellant or other munitions); or

(II) Use in research, development, testing, and evaluation of military
munitions, weapons, or weapon systems; or

(III) Recovery, collection, and on-range destruction of unexploded
ordnance and munitions fragments during range clearance activities
at active or inactive ranges. However, “use for intended purpose”
does not include the on-range disposal or burial of unexploded
ordnance and contaminants when the burial is not a result of product
use.

(ii) An unused munition, or component thereof, is being repaired, reused,
recycled, reclaimed, disassembled, reconfigured, or otherwise subjected to
materials recovery activities, unless such activities involve use constituting
disposal as defined in Rule 0400-12-01-.02(1)(b)3(i), or burning for energy
recovery as defined in Rule 0400-12-01-.02(1)(b)3(ii).

2. An unused military munition is a solid waste when any of the following occurs:

(i) The munition is abandoned by being disposed of, burned, detonated
(except during intended use as specified in part 1 of this subparagraph),
incinerated, or treated prior to disposal; or

(ii) The munition is removed from storage in a military magazine or other
storage area for the purpose of being disposed of, burned, or incinerated,
or treated prior to disposal; or

(iii) The munition is deteriorated or damaged (e.g., the integrity of the munition
is compromised by cracks, leaks, or other damage) to the point that it
cannot be put into serviceable condition, and cannot reasonably be
recycled or used for other purposes; or

(iv) The munition has been declared a solid waste by an authorized military
official.

3. A used or fired military munition is a solid waste:

(i) When transported off range or from the site of use, where the site of use is
not a range, for the purposes of storage, reclamation, treatment, disposal,
or treatment prior to disposal; or

(ii) If recovered, collected, and then disposed of by burial, or landfilling either
on or off a range.

4. For purposes of Tennessee Code Annotated (T.C.A.) § 68-212-104(17), a used
or fired military munition is a solid waste, and, therefore, is potentially subject to
corrective action authorities under T.C.A. §§ 68-212-108(l), and 68-212-111, or
imminent and substantial endangerment authorities under T.C.A. § 68-212-105,
T.C.A. § 68-212-111, T.C.A. § 68-212-114, and T.C.A. § 68-212-115, if the
munition lands off-range and is not promptly rendered safe and/or retrieved. Any
imminent and substantial threats associated with any remaining material must be
addressed. If remedial action is infeasible, the operator of the range must
maintain a record of the event for as long as any threat remains. The record must
include the type of munition and its location (to the extent the location is known).

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Is this a Discarded Material?

Disclaimer: The information provided by this matrix is not intended to be all inclusive and is subject to change. This matrix is not a substitute for evaluation of compliance in accordance with all applicable laws and regulations. This information is not intended for, nor can it be relied upon, to create any rights, substantive or procedural, enforceable or useable by any party in litigation with the State of Tennessee or its employees. The State of Tennessee and its employees expressly disclaim any liability or responsibility for any loss or damage resulting from their use or for the violation of any law or regulation with which these notes may conflict.