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Step 1B

Is the Material Excluded from Being a Solid Waste?

Evaluate Solid Waste Exclusions:

Excluded from the Definition as a Solid Waste

(d) Exclusions [40 CFR 261.4] & [40 CFR 262.70]

1. Materials which are not solid wastes. The following materials are not solid wastes
for the purpose of this rule:

(i)          (I) Domestic sewage; and

(II) Any mixture of domestic sewage and other wastes that passes
through a sewer system to a publicly-owned treatment works
(POTW) for treatment. “Domestic sewage” means untreated sanitary
wastes that pass through a sewer system.
(Comment: This exclusion does not exclude waste/wastewaters
while they are being generated, collected, stored, or treated before
entering the sewer system. This exclusion applies when the material
enters the sewer system where it will mix with sanitary wastes at any
point before reaching the POTW whereupon this material is
regulated under water pollution statutes and regulations. This
material is subject to all applicable reporting, monitoring, and
permitting requirements of the T.C.A. §§ 68-221-101, 69-3-101, et
seq. and the associated regulations. Management of this material
must be in compliance with all applicable authorization (permits, etc.)
associated with disposal into a POTW for subsequent treatment.)

(ii) Industrial wastewater discharges that are point source discharges subject
to regulation under section 402 of the Clean Water Act, as amended or
under the Water Quality Control Act.
(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.)

(iii) Irrigation return flows.

 

(iv) Source, special nuclear or by-product material as defined by the Atomic
Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq.

(v) Materials subjected to in-situ mining techniques which are not removed
from the ground as part of the extraction process.

(vi) Pulping liquors (i.e., 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 subpart (a)3(viii) of this paragraph.

(vii) Spent sulfuric acid used to produce virgin sulfuric acid, unless it is
accumulated speculatively as defined in subpart (a)3(viii) of this paragraph.

(viii) 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:

(I) 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;

(II) Reclamation does not involve controlled flame combustion (such as
occurs in boilers, industrial furnaces, or incinerators);

(III) The secondary materials are never accumulated in such tanks for
over twelve months without being reclaimed; and

(IV) The reclaimed material is not used to produce a fuel, or used to
produce products that are used in a manner constituting disposal.
(Note: As used in this subpart, “production process” includes those
activities that tie directly into the manufacturing operation or those activities
that are the primary operation at an establishment.)

 

(ix)        (I) Spent wood preserving solutions that have been reclaimed and are
             reused for their original intended purpose;

(II) Wastewaters from the wood preserving process that have been
reclaimed and are reused to treat wood; and

(III) Prior to reuse, the wood preserving wastewaters and spent wood
preserving solutions described in item (I) and (II) of this subpart, so
long as they meet all of the following conditions:

I. The wood preserving wastewaters and spent wood preserving
solutions are reused on-site at water borne plants in the
production process for their original intended purpose;

II. Prior to reuse, the wastewaters and spent wood preserving
solutions are managed to prevent release to either land or
groundwater or both;

III. Any unit used to manage wastewaters and/or spent wood
preserving solutions prior to reuse can be visually or otherwise
determined to prevent such releases;

IV. Any drip pad used to manage the wastewaters and/or spent
wood preserving solutions prior to reuse complies with the 
standards in Rule 0400-12-01-.05(23), regardless of whether
the plant generates a total of less than 100 kg/month of
hazardous waste; and

V. 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 on-site 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 Commissioner for
reinstatement. The Commissioner may reinstate the exclusion
upon finding that the plant has returned to compliance with all
conditions and that violations are not likely to recur.

 

(x) Hazardous Waste Codes K060, K087, K141, K142, K143, K144, K145,
K147, and K148, and any wastes from the coke by-products processes
that are hazardous only because they exhibit the Toxicity Characteristic
(TC) specified in subparagraph (3)(e) of this rule 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.

 

(xi) 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.

(xii)

(I) Oil-bearing hazardous secondary materials (i.e., sludges,
byproducts, or spent materials) that are generated at a petroleum
refinery (SIC code 2911) and are inserted into the petroleum refining
process (SIC code 2911 - including, but not limited to distillation,
catalytic cracking, fractionation, or thermal cracking units (i.e.,
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 item 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 item (II) of this subpart, oil-bearing
hazardous secondary materials generated elsewhere in the
petroleum industry (i.e., from sources other than petroleum
refineries) are not excluded under this subpart. Residuals generated
from processing or recycling materials excluded under this item,
where such materials as generated would have otherwise met a
listing under paragraph (4) of this rule, are designated as F037 listed
wastes when disposed of or intended for disposal. 

(II) Recovered oil that is recycled in the same manner and with the same
conditions as described in item (I) of this subpart. 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 (SIC 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 paragraph (4) of this rule; however, oil recovered from such
wastes may be considered recovered oil. Recovered oil does not
include used oil as defined in subparagraph (1)(a) of Rule 0400-12-
01-.11.

(xiii) Excluded scrap metal (processed scrap metal, unprocessed home scrap
metal, and unprocessed prompt scrap metal) being recycled.

(xiv) Shredded circuit boards being recycled provided that they are:

(I) Stored in containers sufficient to prevent a release to the
environment prior to recovery; and

(II) Free of mercury switches, mercury relays and nickel-cadmium
batteries and lithium batteries.

(xv) Condensates derived from the overhead gases from kraft mill steam
strippers that are used to comply with 40 CFR 63.446(e). The exemption
applies only to combustion at the mill generating the condensates.

(xvi) Reserved.

(xvii) Spent materials (as defined in subparagraph (a) of this paragraph) (other
than hazardous wastes listed in paragraph (4) of this rule) 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:

(I) The spent material is legitimately recycled to recover minerals, acids,
cyanide, water or other values.

(II) The spent material is not accumulated speculatively.

(III) Except as provided in item (IV) of this subpart, 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 non-
earthen materials providing structural support (except smelter
buildings may have partially earthen floors provided the secondary
material is stored on the non-earthen portion), and have a roof
suitable for diverting rainwater away from the foundation; a tank
must be free standing, not be a surface impoundment (as defined in
subparagraph (2)(a) of Rule 0400-12-01-.01), and be manufactured
of a material suitable for containment of its contents; a container
must be free standing 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/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.

(IV) The Commissioner may make a site-specific determination, after
public review and comment, that only solid mineral processing spent
materials 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 tanks, containers and
buildings eligible for exclusion as provided in item (III) of this subpart.

I. The decision-maker must also consider if storage on pads
poses the potential for significant releases via groundwater,
surface water, and air exposure pathways. Factors to be
considered for assessing the groundwater, surface water, 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.

II. Pads must meet the following minimum standards: be
designed of non-earthen 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/runoff controls, be
operated in a manner which controls fugitive dust, and have
integrity assurance through inspections and maintenance
programs.

III. Before making a determination under this subpart, the
Commissioner must provide public notice and the opportunity
for comment to all persons potentially interested in the
determination. This shall be accomplished by the owner or
operator placing a notice as prepared and required by the
Commissioner, of this action in local newspapers, or
broadcasting notice over local radio stations. The owner or
operator shall provide proof of the completion of all notice
requirements to the Commissioner within ten days following
conclusion of the public notice procedures.

(V) The owner or operator provides notice to the Commissioner,
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. 

(VI) For purposes of subpart 2(vii) of this subparagraph, 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.

(xviii) Petrochemical recovered oil from an associated organic chemical
manufacturing facility, where the oil is to be inserted into the petroleum
refining process (SIC code 2911) along with normal petroleum refinery
process streams, provided:

(I) The oil is hazardous only because it exhibits the characteristic of
ignitability (as defined in subparagraph (3)(b) of this rule) and/or
toxicity for benzene (subparagraph (3)(e) of this rule, waste code
D018); and

(II) 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 SIC
code is 2869, but where operations may also include SIC codes
2821, 2822, and 2865; and is physically co-located 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 (i.e.,
sludges, byproducts, or spent materials, including wastewater) from
normal organic chemical manufacturing operations, as well as oil
recovered from organic chemical manufacturing processes.

(xix) 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
subpart (1)(a)3(viii) of this rule.

(xx) Hazardous secondary materials used to make zinc fertilizers, provided that
the conditions specified below are satisfied:

(I) Hazardous secondary materials used to make zinc micronutrient
fertilizers must not be accumulated speculatively, as defined in
subpart (1)(a)3(viii) of this rule.

(II) Generators and intermediate handlers of zinc-bearing hazardous
secondary materials that are to be incorporated into zinc fertilizers
must:

I. Submit a one-time notice to the Commissioner which contains
the name, address and installation 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 subpart. 

II. 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 non-earthen
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:

A. Have containment structures or systems sufficiently
impervious to contain leaks, spills and accumulated
precipitation; and

B. Provide for effective drainage and removal of leaks,
spills and accumulated precipitation; and

C. Prevent run-on into the containment system.

III. With each off-site shipment of excluded hazardous secondary
materials, provide written notice to the receiving facility that the
material is subject to the conditions of this subpart.

IV. 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:

A. Name of the transporter and date of the shipment;

B. Name and address of the facility that received the
excluded material, and documentation confirming receipt
of the shipment; and

C. Type and quantity of excluded secondary material in
each shipment.

(III) Manufacturers of zinc fertilizers or zinc fertilizer ingredients made
from excluded hazardous secondary materials must:

I. Store excluded hazardous secondary materials in accordance
with the storage requirements for generators and intermediate
handlers, as specified in subitem (II)II of this subpart.

II. Submit a one-time notification to the Commissioner that, at a
minimum, specifies the name, address and installation
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 subpart. 

III. Maintain for a minimum of three (3) 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 the transporter and the date the
materials were received, the quantity received, and a brief
description of the industrial process that generated the
material.

IV. Submit to the Commissioner 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(es) from which they were generated.

(IV) Nothing in this subpart preempts, overrides or otherwise negates the
provision in subparagraph (1)(b) of Rule 0400-12-01-.03 which
requires any person who generates a solid waste to determine if that
waste is a hazardous waste.

(V) 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 subitem (II)I of this subpart, and that
afterward will be used only to store hazardous secondary materials
excluded under this subpart, are not subject to the closure
requirements of Rules 0400-12-01-.05 and .06.

(xxi) Zinc fertilizers made from hazardous wastes, or hazardous secondary
materials that are excluded under subpart (xx) of this part, provided that:

(I) The fertilizers meet the following contaminate limits:

I. For metal contaminants: 

Maximum Allowable Total Concentration in Fertilizer, per Unit (1%) of Zinc (ppm)
Arsenic 0.3
Cadmium 1.4
Chromium 0.6
Lead 2.8
Mercury 0.3

II. For dioxin contaminants the fertilizer must contain no more
than eight (8) parts per trillion of dioxin, measured as toxic
equivalent (TEQ).

(II) 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(s) introduced
into commerce.

(III) 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 item (II) of this subpart. Such
records must at a minimum include:

I. The dates and times product samples were taken, and the
dates the samples were analyzed;

II. The names and qualifications of the person(s) taking the
samples;

III. A description of the methods and equipment used to take the
samples;

IV. The name and address of the laboratory facility at which
analyses of the samples were performed;

V. A description of the analytical methods used, including any
cleanup and sample preparation methods; and

VI. All laboratory analytical results used to determine compliance
with the contaminant limits specified in this subpart.

(xxii) Used cathode ray tubes (CRTs)

(I) Used, intact CRTs as defined in subparagraph (2)(a) of Rule 0400-
12-01-.01 are not solid wastes within the United States unless they
are disposed, or unless they are speculatively accumulated as
defined in subpart (1)(a)3(viii) of this rule by CRT collectors or glass
processors.

(II) Used, intact CRTs as defined in subparagraph (2)(a) of Rule 0400-
12-01-.01 are not solid wastes when exported for recycling provided
that they meet the requirements of subparagraph (5)(c) of this rule.

(III) Used, broken CRTs as defined in subparagraph (2)(a) of Rule 0400-
12-01-.01 are not solid wastes provided that they meet the
requirements of subparagraph (5)(b) of this rule.

(IV) Glass removed from CRTs is not a solid waste provided that it meets
the requirements of part (5)(b)3 of this rule.

(xxiii) 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 items (I) and (II) of this subpart:

(I)

I. The hazardous secondary material 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


II. The hazardous secondary material 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 subparagraph
(2)(a) of Rule 0400-12-01-.01, 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; and as specified in
Tennessee Code Annotated Section 39-16-702(a)(4), this
declaration is made under penalty of perjury,” 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; and as specified in
Tennessee Code Annotated Section 39-16-702(a)(4), this
declaration is made under penalty of perjury.” For purposes of
this subitem, “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 subparagraph (2)(a)
of Rule 0400-12-01-.01 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 (e.g., financial records,
bills of lading, copies of DOT shipping papers, or electronic
confirmations); or

III. The hazardous secondary material 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. As specified in Tennessee Code
Annotated Section 39-16-702(a)(4), this declaration is made
under penalty of perjury.” 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 (e.g., financial records, bills of lading, copies
of DOT shipping papers, or electronic confirmations). For
purposes of this subitem, tolling contractor means a person
who arranges for the production of a product or intermediate
made from specified unused materials through a written
contract 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.

(II)

I. The hazardous secondary material is contained as defined in
subparagraph (2)(a) of Rule 0400-12-01-.01. 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.

II. The hazardous secondary material is not speculatively
accumulated, as described in subpart (a)3(viii) of this
paragraph.

III. Notice is provided as required by subparagraph (5)(c) of Rule
0400-12-01-.01.

IV. The material is not otherwise subject to material-specific
management conditions under part 1 of this subparagraph
when reclaimed, and it is not a spent lead-acid battery (see
subparagraph (7)(a) of Rule 0400-12-01-.09 and subparagraph
(1)(d) of Rule 0400-12-01-.12).

V. Persons performing the recycling of hazardous secondary
materials under this exclusion must maintain documentation of
their legitimacy determination on-site. Documentation must be
a written description of how the recycling meets all four factors
in part (5)(d)1 of Rule 0400-12-01-.01. Documentation must be
maintained for three years after the recycling operation has
ceased.

VI. The emergency preparedness and response requirements
found in paragraph (13) of this rule are met.

(xxiv) Hazardous secondary material that is generated and then transferred to a
person for the purpose of reclamation is not a solid waste, provided that:

(I) The material is not speculatively accumulated, as defined in subpart
(a)3(viii) of this paragraph;

(II) 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 (10) days at a transfer facility, as defined in
subparagraph (2)(a) of Rule 0400-12-01-.01, and is packaged
according to applicable Department of Transportation regulations at
49 CFR parts 173, 178, and 179 while in transport;

(III) The material is not otherwise subject to material-specific
management conditions under part 1 of this subparagraph when
reclaimed, and it is not a spent lead-acid battery (see subparagraph
(7)(a) of Rule 0400-12-01-.09 and subparagraph (1)(d) of Rule 0400-
12-01-.12), and it does not meet the listing description for K171 or
K172 in subparagraph (4)(c) of this rule;

(IV) The reclamation of the material is legitimate, as specified under
subparagraph (5)(d) of Rule 0400-12-01-.01;

(V) The hazardous secondary material generator satisfies all of the
following conditions:

I. The material must be contained as defined in subparagraph
(2)(a) of Rule 0400-12-01-.01. 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.

II. Prior to arranging for transport of hazardous secondary
materials to a reclamation facility (or facilities) where the
management of the hazardous secondary materials is not
addressed under a Part B permit issued under Rule 0400-12-
01-.07 or interim status standards under Rule 0400-12-01-.05
or, if not in Tennessee, not addressed under a RCRA Part B
permit or interim status standards in another state, the
hazardous secondary material generator must make
reasonable efforts to ensure that 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 Part B permit
issued under Rule 0400-12-01-.07 or interim status standards
under Rule 0400-12-01-.05, or, if not in Tennessee, not
addressed under a RCRA Part B permit or interim status
standards in another state, the hazardous secondary material
generator must 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 must 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 (3) 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, and/or provided by a third
party. The hazardous secondary material generator must
affirmatively answer all of the following questions for each
reclamation facility and any intermediate facility:

A. Does the available information indicate that the
reclamation process is legitimate pursuant to
subparagraph (5)(d) of Rule 0400-12-01-.01? In
answering this question, the hazardous secondary
material generator can rely on their existing knowledge
of the physical and chemical properties of the hazardous
secondary material, as well as information from other
sources (e.g., the reclamation facility, audit reports, etc.)
about the reclamation process. (By responding to this
question, the hazardous secondary material generator
has also satisfied its requirement in subparagraph (5)(d)
of Rule 0400-12-01-.01 to be able to demonstrate that
the recycling is legitimate).

B. Does the publicly available information indicate that the
reclamation facility and any intermediate facility that is
used by the hazardous secondary material generator
notified the appropriate authorities of hazardous
secondary materials reclamation activities pursuant to
subparagraph (5)(c) of Rule 0400-12-01-.01 and have
they notified the appropriate authorities that the financial
assurance condition is satisfied per item (VI)VI of this
subpart? In answering these questions, the hazardous
secondary material generator can rely on the available
information documenting the reclamation facility’s and
any intermediate facility’s compliance with the
notification requirements per subparagraph (5)(c) of
Rule 0400-12-01-.01, including the requirement in
subpart (5)(c)1(v) of Rule 0400-12-01-.01 to notify the
appropriate authorities whether the reclaimer or
intermediate facility has financial assurance.

C. Does publicly available information indicate that the
reclamation facility or any intermediate facility that is
used by the hazardous secondary material generator
has not had any formal enforcement actions taken
against the facility in the previous three (3) years for 
violations of the RCRA hazardous waste regulations and
has not been classified as a significant non-complier
with RCRA Subtitle C? In answering this question, the
hazardous secondary material generator can rely on the
publicly available information from EPA or the
Department. If the reclamation facility or any
intermediate facility that is used by the hazardous
secondary material generator has had a formal
enforcement action taken against the facility in the
previous three (3) years for violations of the RCRA
hazardous waste regulations and has been classified as
a significant non-complier with RCRA Subtitle C, does
the hazardous secondary material generator have
credible evidence that the facilities will manage the
hazardous secondary materials properly? In answering
this question, the hazardous secondary material
generator can obtain additional information from EPA,
the Department, or the facility itself that the facility has
addressed the violations, 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.

D. Does the available information indicate that the
reclamation facility and any intermediate facility that is
used by the hazardous secondary material generator
have the equipment and trained personnel to safely
recycle the hazardous secondary material? In answering
this question, the generator may rely on a description by
the reclamation facility or by an independent third party
of the equipment and trained personnel to be used to
recycle the generator’s hazardous secondary material.

E. If residuals are generated from the reclamation of the
excluded hazardous secondary materials, does the
reclamation facility have the permits required (if any) 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 that the residuals will be managed in a manner
that is protective of human health and the environment?
In answering these questions, the hazardous secondary
material generator can rely on publicly available
information from EPA or the Department, or information
provided by the facility itself.

III. The hazardous secondary material generator must maintain
for a minimum of three (3) years documentation and
certification that reasonable efforts were made for each
reclamation facility and, if applicable, intermediate facility
where the management of the hazardous secondary materials
is not addressed under a Part B permit issued under Rule
0400-12-01-.07 or interim status standards under Rule 0400-
12-01-.05, or, if not in Tennessee, not addressed under a
RCRA Part B permit or interim status standards in another
state prior to transferring hazardous secondary material.
Documentation and certification must be made available upon
request by the Commissioner within seventy two (72) hours, or
within a longer period of time as specified by the
Commissioner. The certification statement must:

A. Include the printed name and official title of an
authorized representative of the hazardous secondary
material generator company, the authorized
representative’s signature, and the date signed;

B. Incorporate the following language: “I hereby certify in
good faith and to the best of my knowledge that, prior to
arranging for transport of excluded hazardous secondary
materials to [insert name(s) of reclamation facility and
any intermediate facility], reasonable efforts were made
in accordance with subitem (1)(d)1(xxiv)(V)II of Rule
0400-12-01-.02 to ensure that the hazardous secondary
materials would be recycled legitimately, and otherwise
managed in a manner that is protective of human health
and the environment, and that such efforts were based
on current and accurate information.”.

IV. The hazardous secondary material generator must maintain at
the generating facility for no less than three (3) years records
of all off-site shipments of hazardous secondary materials. For
each shipment, these records must, at a minimum, contain the
following information:

A. Name of the transporter and date of the shipment;

B. 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

C. The type and quantity of hazardous secondary material
in the shipment.

V. The hazardous secondary material generator must maintain at
the generating facility for no less than three (3) years
confirmations of receipt from each reclaimer and, if applicable,
each intermediate facility for all off-site 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 (e.g., financial records,
bills of lading, copies of DOT shipping papers, or electronic
confirmations of receipt);

VI. The hazardous secondary material generator must comply
with the emergency preparedness and response conditions in
paragraph (13) of this rule.

(VI) Reclaimers of hazardous secondary material excluded from
regulation under this exclusion and intermediate facilities, as defined
in subparagraph (2)(a) of Rule 0400-12-01-.01, satisfy all of the
following conditions:

I. The reclaimer and intermediate facility must maintain at its
facility for no less than three (3) 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
off-site from the facility for further reclamation. For each
shipment, these records must at a minimum contain the
following information:

A. Name of the transporter and date of the shipment;

B. 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;

C. The type and quantity of hazardous secondary material
in the shipment; and

D. For hazardous secondary materials that, after being
received by the reclaimer or intermediate facility, were
subsequently transferred off-site 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.

II. The intermediate facility must send the hazardous secondary
material to the reclaimer(s) designated by the hazardous
secondary materials generator.

III. The reclaimer and intermediate facility must send to the
hazardous secondary material generator confirmations of
receipt for all off-site shipments of hazardous secondary
materials, within thirty (30) days of receipt. 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
(e.g., financial records, bills of lading, copies of DOT shipping
papers, or electronic confirmations of receipt).

IV. 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.

V. The intermediate or reclamation facility must have the
equipment and trained personnel needed to safely manage the
hazardous secondary material and must meet emergency
preparedness and response requirements under paragraph
(13) of this rule.

VI. 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 paragraph (3) of this rule, or if they
themselves are specifically listed in paragraph (4) of this rule,
such residuals are hazardous wastes and must be managed in
accordance with the applicable requirements of Rules 0400-
12-01-.01 through 0400-12-01-.10.

VII. The reclaimer and intermediate facility have financial
assurance as required under paragraph (8) of this rule.

(VII) In addition, all persons claiming the exclusion under this subpart
must provide notification as required under subparagraph (5)(c) of
Rule 0400-12-01-.01.

(xxv) Reserved

(xxvi) Solvent-contaminated wipes that are sent for cleaning and reuse are not
solid wastes from the point of generation, provided that:

(I) The solvent-contaminated wipes, when accumulated, stored, and
transported, are contained in non-leaking, closed containers that are
labeled “Excluded Solvent-Contaminated Wipes.” The containers
shall 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 shall 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;

(II) The solvent-contaminated wipes are accumulated by the generator
for no more than 180 days from the start date of accumulation for
each container prior to being sent for cleaning;

(III) At the point of being sent for cleaning on-site or at the point of being
transported off-site for cleaning, the solvent-contaminated wipes
must contain no free liquids as defined in paragraph (2) of Rule
0400-12-01-.01;

(IV) Free liquids removed from the solvent-contaminated wipes or from
the container holding the wipes shall be managed according to the
applicable regulations found in Rules 0400-12-01-.01 through 0400-
12-01-.12;

(V) Generators shall maintain at their site the following documentation: 

I. Name and address of the laundry or dry cleaner that is
receiving the solvent-contaminated wipes;

II. Documentation that the 180-day accumulation time limit in item
(II) of this subpart is being met;

III. 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 on-site or at the point of
being transported off-site for laundering or dry cleaning; and

(VI) The solvent-contaminated wipes are sent to a laundry or dry cleaner
whose discharge, if any, is regulated under T.C.A. §§ 69-3-101 et
seq., or sections 301 and 402 or section 307 of the Clean Water Act.

(xxvii) Hazardous secondary material that is generated and then transferred to
another person for the purpose of remanufacturing is not a solid waste,
provided that:

(I) 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/or methanol;

(II) The hazardous secondary material originated from using one or
more of the solvents listed in item (I) of this subpart 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/or the paints and coatings
manufacturing sectors (NAICS 325510).

(III) The hazardous secondary material generator sends the hazardous
secondary material spent solvents listed in item (I) of this subpart to
a remanufacturer in the pharmaceutical manufacturing (NAICS
325412), basic organic chemical manufacturing (NAICS 325199),
plastics and resins manufacturing (NAICS 325211), and/or the paints
and coatings manufacturing sectors (NAICS 325510).

(IV) After remanufacturing one or more of the solvents listed in item (I) of
this subpart, 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);

(V) After remanufacturing one or more of the solvents listed in item (I) of
this subpart, 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
Toxics Substances Control Act.); and

(VI) Both the hazardous secondary material generator and the
remanufacturer must:

I. Notify EPA or the State Director, if the state is authorized for
the program, and update the notification every two years per
subparagraph (5)(c) of Rule 0400-12-01-.01;

II. Develop and maintain an up-to-date remanufacturing plan
which identifies:

A. The name, address and EPA ID number of the
generator(s) and the remanufacturer(s);

B. The types and estimated annual volumes of spent
solvents to be remanufactured;

C. The processes and industry sectors that generate the
spent solvents;

D. The specific uses and industry sectors for the
remanufactured solvents; and

E. A 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), and/or the paints and
coatings manufacturing sectors (NAICS 325510), and
will accept the spent solvent(s) for the sole purpose of
remanufacturing into commercial-grade solvent(s) that
will be used for reacting, extracting, purifying, or
blending chemicals (or for rinsing out the process lines
associated with these functions) or for use as product
ingredient(s). I also certify that the remanufacturing
equipment, vents, and tanks are equipped with and are
operating air emission controls in compliance with the
appropriate Tennessee Air Quality Act regulations under
Rule Division 1200-03, or, absent such Air Quality Act
standards for the particular operation or piece of
equipment covered by the remanufacturing exclusion,
are in compliance with the appropriate standards in
paragraphs (27) (vents), (28) (equipment) and (29) (tank
storage).”; 

III. Maintain records of shipments and confirmations of receipts for
a period of three years from the dates of the shipments;

IV. Prior to remanufacturing, store the hazardous spent solvents in
tanks or containers that meet technical standards found in
paragraphs (9) and (10) of this rule, with the tanks and
containers being labeled or otherwise having an immediately
available record of the material being stored;

V. 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
Tennessee Air Quality Act regulations under Rule Division
1200-03; or, absent such Air Quality Act standards for the
particular operation or piece of equipment covered by the
remanufacturing exclusion, are in compliance with the
appropriate standards in paragraphs (27) (vents), (28)
(equipment) and (29) (tank storage); and

VI. Meet the requirements prohibiting speculative accumulation
per subpart (a)3(viii) of this paragraph.

Excluded by Variance or Non-waste Determination

Rule 0400-12-01-.01(4)(b) Non-waste determinations and variances from classification as a solid waste [40 CFR
260.30]

In accordance with the standards and criteria in subparagraphs (c) and (e) of this
paragraph and the procedures in subparagraph (g) of this paragraph, the
Commissioner may determine on a case-by-case basis that the following recycled
materials are not solid wastes:

1. Materials that are accumulated speculatively without sufficient amounts being
recycled (as defined in Rule 0400-12-01-.02(1)(a)3(viii));

2. Materials that are reclaimed and then reused within the original production
process in which they were generated;

3. Materials that have been reclaimed but must be reclaimed further before the
materials are completely recovered;

4. Hazardous secondary materials that are reclaimed in a continuous industrial
process; and

5. Hazardous secondary materials that are indistinguishable in all relevant aspects
from a product or intermediate.

Rule 0400-12-01-.01(4)(c) Standards and Criteria for Variances from Classification as a Solid Waste [40 CFR
260.31]

1. The Commissioner may grant requests for a variance 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 a
variance is granted, it is valid only for the following year, but can be renewed, on
an annual basis, by filing a new application. The Commissioner’s decision will be
based on the following criteria:

(i) 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);

(ii) 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;

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

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

(v) Other relevant factors.

2. The Commissioner may grant requests for a variance 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 a description of the reclamation operation and the
following criteria: 

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

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

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

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

(v) 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;

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

(vii) Other relevant factors.

3. The Commissioner may grant requests for a variance 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 variance is sought is commodity-like will
be based on whether the hazardous secondary material is legitimately recycled
as specified in subparagraph (5)(d) of this rule and on whether all of the following
decision criteria are satisfied:

(i) 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;

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

(iii) 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;

(iv) 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

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

Rule 0400-12-01-.01(4)(e) Standards and criteria for non-waste determinations [40 CFR 260.34]

1. An applicant may apply to the Commissioner for a formal determination that a
hazardous secondary material is not discarded and therefore not a solid waste.
The determinations will be based on the criteria contained in parts 2 and 3 of this
subparagraph, as applicable. If an application is denied, the hazardous
secondary material might still be eligible for a solid waste variance or exclusion
(for example, one of the solid waste variances under subparagraph (c) of this
paragraph).

2. The Commissioner may grant a non-waste determination for hazardous
secondary material which is reclaimed in a continuous industrial process if the
applicant demonstrates that the hazardous secondary material is a part of the
production process and is not discarded. The determination will be based on
whether the hazardous secondary material is legitimately recycled as specified in
subparagraph (5)(d) of this rule and on the following criteria:

(i) The extent that the management of the hazardous secondary material is
part of the continuous primary production process and is not waste
treatment;

(ii) 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);

(iii) 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

(iv) Other relevant factors that demonstrate the hazardous secondary material
is not discarded, including why the hazardous secondary material cannot
meet, or should not have to meet, the conditions of an exclusion under
subparagraph (1)(b) or (d) of Rule 0400-12-01-.02.

3. The Commissioner may grant a non-waste determination for hazardous
secondary material which is indistinguishable in all relevant aspects from a 
product or intermediate if the applicant demonstrates that the hazardous
secondary material is comparable to a product or intermediate and is not
discarded. The determination will be based on whether the hazardous secondary
material is legitimately recycled as specified in subparagraph (5)(d) of this rule
and on the following criteria:

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

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

(iii) 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);

(iv) 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

(v) Other relevant factors that demonstrate the hazardous secondary material
is not discarded, including why the hazardous secondary material cannot
meet, or should not have to meet, the conditions of an exclusion under
subparagraph (1)(b) or (d) of Rule 0400-12-01-.02.

Is this material excluded from being considered a Solid Waste ?

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.