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Title 40: Protection of Environment
§260.31 Standards and criteria for variances from classification as a solid waste.
(a) The Administrator 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 Administrator's decision will be based on the following criteria:
(1) The manner in which the material is expected to be recycled, when the material is expected to be recycled, and whether this expected disposition is likely to occur (for example, because of past practice, market factors, the nature of the material, or contractual arrangements for recycling);
(2) The reason that the applicant has accumulated the material for one or more years without recycling 75 percent of the volume accumulated at the beginning of the year;
(3) The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled;
(4) The extent to which the material is handled to minimize loss;
(5) Other relevant factors.
(b) The Administrator 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 the following criteria:
(1) How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;
(2) The extent to which the material is handled before reclamation to minimize loss;
(3) The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;
(4) The location of the reclamation operation in relation to the production process;
(5) Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form;
(6) Whether the person who generates the material also reclaims it;
(7) Other relevant factors.
(c) The Regional Administrator may grant requests for a variance from classifying as a solid waste those materials that have been reclaimed but must be reclaimed further before recovery is completed if, after initial reclamation, the resulting material is commodity-like (even though it is not yet a commercial product, and has to be reclaimed further). This determination will be based on the following factors:
(1) The degree of processing the material has undergone and the degree of further processing that is required;
(2) The value of the material after it has been reclaimed;
(3) The degree to which the reclaimed material is like an analogous raw material;
(4) The extent to which an end market for the reclaimed material is guaranteed;
(5) The extent to which the reclaimed material is handled to minimize loss;
(6) Other relevant factors.
[50 FR 662, Jan. 4, 1985, as amended at 59 FR 48041, Sept. 19, 1994; 71 FR 16902, Apr. 4, 2006]