Section 661.03. Definition of hazardous waste.

 

(1)  A solid waste, as defined in s. NR 661.02 , is a hazardous waste if all of the following apply:

(a) It is not excluded from regulation as a hazardous waste under s. NR 661.04 (2) .

(b) It meets any of the following criteria:

1. It exhibits any of the characteristics of hazardous waste identified in subch. C . However, any mixture of a waste from the extraction, beneficiation and processing of ores and minerals excluded under s. NR 661.04 (2) (g) and any other solid waste exhibiting a characteristic of hazardous waste under subch. C is a hazardous waste only if it exhibits a characteristic that would not have been exhibited by the excluded waste alone if the mixture had not occurred, or if it continues to exhibit any of the characteristics exhibited by the non-excluded wastes prior to mixture. Further, for the purposes of applying the toxicity characteristic to these mixtures, the mixture is also a hazardous waste if it exceeds the maximum concentration for any contaminant listed in table 2 that would not have been exceeded by the excluded waste alone if the mixture had not occurred or if it continues to exceed the maximum concentration for any contaminant exceeded by the nonexempt waste prior to mixture.

2. It is listed in subch. D and has not been excluded from the lists in subch. D under ss. NR 660.20 and 660.22 .

4. It is a mixture of solid waste and one or more hazardous wastes listed in subch. D and has not been excluded from this paragraph under ss. NR 660.20 and 660.22 , or sub. (7) or (8) ; however, the following mixtures of solid wastes and hazardous wastes listed in subch. D are not hazardous wastes (except by application of subd. 1. or 2. ) if the generator can demonstrate that the mixture consists of wastewater the discharge of which is subject to regulation under s. 283.21 (2) , 283.31 or 283.33 , Stats., (including wastewater at facilities which have eliminated the discharge of wastewater) and one of the following:

a. One or more of the following solvents listed in s. NR 661.31 : carbon tetrachloride, tetrachloroethylene, trichloroethylene; if the maximum total weekly usage of these solvents (other than the amounts that can be demonstrated not to be discharged to wastewater) divided by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pretreatment system does not exceed one part per million.

b. One or more of the following spent solvents listed in s. NR 661.31 : methylene chloride, 1,1,1-trichloroethane, chlorobenzene, o-dichlorobenzene, cresols, cresylic acid, nitrobenzene, toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, spent chlorofluorocarbon solvents; if the maximum total weekly usage of these solvents (other than the amounts that can be demonstrated not to be discharged to wastewater) divided by the average weekly flow of wastewater into the headworks of the facility's wastewater treatment or pretreatment system does not exceed 25 parts per million.

c. One of the following wastes listed in s. NR 661.32 , if the wastes are discharged to the refinery oil recovery sewer before primary oil, water or solids separation: heat exchanger bundle cleaning sludge from the petroleum refining industry (EPA hazardous waste number K050), crude oil storage tank sediment from petroleum refining operations (EPA hazardous waste number K169), clarified slurry oil tank sediment or in-line filter or separation solids from petroleum refining operations (EPA hazardous waste number K170), spent hydrotreating catalyst (EPA hazardous waste number K171) and spent hydrorefining catalyst (EPA hazardous waste number K172).

d. A discarded commercial chemical product, or chemical intermediate listed in s. NR 661.33 , arising from de minimis losses of these materials from manufacturing operations in which these materials are used as raw materials or are produced in the manufacturing process. For purposes of this subdivision, de minimis losses include those from normal material handling operations (e.g., spills from the unloading or transfer of materials from bins or other containers, leaks from pipes, valves or other devices used to transfer materials); minor leaks of process equipment, storage tanks or containers; leaks from well maintained pump packings and seals; sample purgings; relief device discharges; discharges from safety showers and rinsing and cleaning of personal safety equipment; and rinsate from empty containers or from containers that are rendered empty by that rinsing.

e. Wastewater resulting from laboratory operations containing toxic (T) wastes listed in subch. D if the annualized average flow of laboratory wastewater does not exceed one percent of total wastewater flow into the headworks of the facility's wastewater treatment or pre-treatment system, or if the waste's combined annualized average concentration does not exceed one part per million in the headworks of the facility's wastewater treatment or pre-treatment facility. Toxic (T) wastes used in laboratories that are demonstrated not to be discharged to wastewater are not to be included in this calculation.

f. One or more of the following wastes listed in s. NR 661.32 : wastewaters from the production of carbamates and carbamoyl oximes (EPA hazardous waste number K157), if the maximum weekly usage of formaldehyde, methyl chloride, methylene chloride and triethylamine (including all amounts that can not be demonstrated to be reacted in the process, destroyed through treatment, or is recovered, i.e., what is discharged or volatilized) divided by the average weekly flow of process wastewater prior to any dilutions into the headworks of the facility's wastewater treatment system does not exceed a total of 5 parts per million by weight.

g. Wastewaters derived from the treatment of one or more of the following wastes listed in s. NR 661.32 : organic waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates and decantates) from the production of carbamates and carbamoyl oximes (EPA hazardous waste number K156), if the maximum concentration of formaldehyde, methyl chloride, methylene chloride and triethylamine prior to any dilutions into the headworks of the facility's wastewater treatment system does not exceed a total of 5 milligrams per liter.

5. Used oil containing more than 1000 ppm total halogens is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in subch. D . Persons may rebut this presumption by demonstrating that the used oil does not contain hazardous waste (for example, by using an analytical method from EPA SW-846, incorporated by reference in s. NR 660.11 , to show that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in ch. NR 661 Appendix VIII ).

a. The rebuttable presumption does not apply to metalworking oils or fluids containing chlorinated paraffins, if they are processed, through a tolling agreement, to reclaim metalworking oils or fluids. The presumption does apply to metalworking oils or fluids if the oils or fluids are recycled in any other manner, or disposed.

b. The rebuttable presumption does not apply to used oils contaminated with chlorofluorocarbons (CFCs) removed from refrigeration units where the CFCs are destined for reclamation. The rebuttable presumption does apply to used oils contaminated with CFCs that have been mixed with used oil from sources other than refrigeration units.

(2)  A solid waste which is not excluded from regulation under sub. (1) (a) becomes a hazardous waste when any of the following events occur:

(a) In the case of a waste listed in subch. D , when the waste first meets the listing description set forth in subch. D .

(b) In the case of a mixture of solid waste and one or more listed hazardous wastes, when a hazardous waste listed in subch. D is first added to the solid waste.

(c) In the case of any other waste (including a waste mixture), when the waste exhibits any of the characteristics identified in subch. C .

(3)  Unless and until it meets the criteria of sub. (4) :

(a) A hazardous waste will remain a hazardous waste.

(b)

1. Except as otherwise provided in subd. 2. or sub. (7) or (8) , any solid waste generated from the treatment, storage or disposal of a hazardous waste, including any sludge, spill residue, ash, emission control dust or leachate (but not including precipitation run-off) is a hazardous waste. (However, materials that are reclaimed from solid wastes and that are used beneficially are not solid wastes and hence are not hazardous wastes under this subdivision unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal.)

2. All of the following solid wastes are not hazardous even though they are generated from the treatment, storage or disposal of a hazardous waste, unless they exhibit one or more of the characteristics of hazardous waste:

a. Waste pickle liquor sludge generated by lime stabilization of spent pickle liquor from the iron and steel industry (standard industrial classification (SIC) codes 331 and 332).

b. Waste from burning any of the materials exempted from regulation by s. NR 661.06 (1) (c) 3. and 4.

c. 1) Nonwastewater residues, such as slag, resulting from high temperature metals recovery (HTMR) processing of K061, K062 or F006 waste, in units identified as rotary kilns, flame reactors, electric furnaces, plasma arc furnaces, slag reactors, rotary hearth furnace or electric furnace combinations or industrial furnaces (as defined in the definition for industrial furnace in s. NR 660.10 (60) (f) , (g) and (m) ), that are disposed in approved solid waste disposal facilities, if these residues meet the generic exclusion levels identified in the following tables for all constituents, and exhibit no characteristics of hazardous waste. Testing requirements shall be incorporated in a facility's waste analysis plan or a generator's self-implementing waste analysis plan; at a minimum, composite samples of residues shall be collected and analyzed quarterly or when the process or operation generating the waste changes. Persons claiming this exclusion in an enforcement action will have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements. - See PDF for table

2) A one-time notification and certification shall be placed in the facility's files and sent to the department for K061, K062 or F006 HTMR residues that meet the generic exclusion levels for all constituents and do not exhibit any characteristics that are sent to approved solid waste disposal facilities. The notification and certification that is placed in the generators or treaters files shall be updated if the process or operation generating the waste changes or if the approved solid waste disposal facility receiving the waste changes. However, the generator or treater need only notify the department on an annual basis if those changes occur. The notification and certification shall be sent to the department by the end of the calendar year, but no later than December 31. The notification shall include the following information: the name and address of the approved solid waste disposal facility receiving the waste shipments; the EPA hazardous waste numbers and treatability groups at the initial point of generation; and the treatment standards applicable to the waste at the initial point of generation. The certification shall be signed by an authorized representative and shall state as follows: "I certify under penalty of law that the generic exclusion levels for all constituents have been met without impermissible dilution and that no characteristic of hazardous waste is exhibited. I am aware that there are significant penalties for submitting a false certification, including the possibility of fine and imprisonment."

d. Biological treatment sludge from the treatment of one of the following wastes listed in s. NR 661.32 : organic waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates and decantates) from the production of carbamates and carbamoyl oximes (EPA hazardous waste number K156), and wastewaters from the production of carbamates and carbamoyl oximes (EPA hazardous waste number K157).

e. Catalyst inert support media separated from one of the following wastes listed in s. NR 661.32 : spent hydrotreating catalyst (EPA hazardous waste number K171), and spent hydrorefining catalyst (EPA hazardous waste number K172).

(4)  Any solid waste described in sub. (3) is not a hazardous waste if it meets the following criteria:

(a) In the case of any solid waste, it does not exhibit any of the characteristics of hazardous waste identified in subch. C . (However, wastes that exhibit a characteristic at the point of generation may still be subject to ch. NR 668 , even if they no longer exhibit a characteristic at the point of land disposal.)

(b) In the case of a waste which is a listed waste under subch. D , contains a waste listed under subch. D or is derived from a waste listed in subch. D , it also has been excluded from sub. (3) under ss. NR 660.20 and 660.22 .

(6)  Notwithstanding subs. (1) to (4) and provided the debris as defined in ch. NR 668 does not exhibit a characteristic identified at subch. C , all of the following materials are not subject to regulation under chs. NR 660 , 661 to 666 , 668 or 670 :

(a) Hazardous debris as defined in ch. NR 668 that has been treated using one of the required extraction or destruction technologies specified in Table 1 of s. NR 668.45 ; persons claiming this exclusion in an enforcement action will have the burden of proving by clear and convincing evidence that the material meets all of the exclusion requirements.

(b) Debris as defined in ch. NR 668 that the department, considering the extent of contamination, has determined is no longer contaminated with hazardous waste.

(7)  

(a) A hazardous waste that is listed in subch. D solely because it exhibits one or more characteristics of ignitability as defined under s. NR 661.21 , corrosivity as defined under s. NR 661.22 , or reactivity as defined under s. NR 661.23 is not a hazardous waste, if the waste no longer exhibits any characteristic of hazardous waste identified in subch. C .

(b) The exclusion described in par. (a) also pertains to all of the following:

1. Any mixture of a solid waste and a hazardous waste listed in subch. D solely because it exhibits the characteristics of ignitability, corrosivity or reactivity as regulated under sub. (1) (b) 4.

2. Any solid waste generated from treating, storing or disposing of a hazardous waste listed in subch. D solely because it exhibits the characteristics of ignitability, corrosivity or reactivity as regulated under sub. (3) (b) 1.

(c) Wastes excluded under this section are subject to ch. NR 668 (as applicable), even if they no longer exhibit a characteristic at the point of land disposal.

(d) Any mixture of a solid waste excluded from regulation under s. NR 661.04 (2) (g) and a hazardous waste listed in subch. D solely because it exhibits one or more of the characteristics of ignitability, corrosivity or reactivity as regulated under sub. (1) (b) 4. is not a hazardous waste, if the mixture no longer exhibits any characteristic of hazardous waste identified in subch. C for which the hazardous waste listed in subch. D was listed.

(8)  

(a) Hazardous waste containing radioactive waste is no longer a hazardous waste when it meets the eligibility criteria and conditions of subch. N of ch. NR 666 (eligible radioactive mixed waste).

(b) The exemption described in par. (a) also pertains to all of the following:

1. Any mixture of a solid waste and an eligible radioactive mixed waste.

2. Any solid waste generated from treating, storing or disposing of an eligible radioactive mixed waste.

(c) Waste exempted under this section shall meet the eligibility criteria and specified conditions in ss. NR 666.225 and 666.230 (for storage and treatment) and in ss. NR 666.310 and 666.315 (for transportation and disposal). Waste that fails to satisfy these eligibility criteria and conditions is regulated as hazardous waste.

History: CR 05-032 : cr. Register July 2006 No. 607 , eff. 8-1-06; correction in (1) (b) 5. made under s. 13.92 (4) (b) 7. , Stats., Register March 2013 No. 687 .