R 299.9202 "Waste" explained.

Rule 202.

(1)  A waste is any discarded material that is not excluded by R 299.9204 or that is not excluded by a variance granted under R 299.9202(6) and (7).  A discarded material is any material that is any of the following:

            (a)  A material that is abandoned by being disposed of; burned or incinerated; or accumulated, stored, or treated before or instead of being abandoned by being disposed of, burned, or incinerated.

            (b)  A material which is recycled, or accumulated, stored, or treated before recycling, and which meets 1 of the following criteria:

                        (i)  It is a material listed in subrule (2) of this rule and is used in a manner constituting disposal by being either of the following:

                                    (A)  Applied to or placed on the land in a manner that constitutes disposal.

                                    (B)  Used to produce products that are applied to or are 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 waste.  A commercial chemical product listed in R 299.9214 is not a waste if it is applied to the land and that is its ordinary manner of use.

                        (ii)  It is a material listed in subrule (2) of this rule and it is burned to recover energy, is used to produce a fuel, or is otherwise contained in fuels, in which cases the fuel itself remains a waste.  A commercial chemical product listed in R 299.9214 is not a waste if it is itself a fuel.

                        (iii)  It is a material listed in subrule (2)(a), (b), or (c) of this rule and it undergoes reclamation, except as provided for in R 299.9204(1)(v).

                        (iv)  It is a material listed in subrule (2)(a), (b), (c), or (d) of this rule and it undergoes speculative accumulation.

                        (v)  It is an inherently waste-like material, having a hazardous waste number of F020, F021, F022, F023, F026, or F028, or is another waste determined by the administrator based on both of the following criteria:

                                    (A)  The materials are ordinarily disposed of, burned, or incinerated or the materials contain toxic constituents which are listed in 40 C.F.R. part 261, appendix VIII, and which 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 which are not used or reused during the recycling process.

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

                        (vi)  It is an inherently waste-like material which is a secondary material, which is fed to a halogen acid furnace, and which exhibits a characteristic of a hazardous waste or is listed as a hazardous waste pursuant to part 2 of these rules, except for brominated material that meets all of the following criteria:

                                    (A)  The material contains a bromine concentration of not less than 45%.

                                    (B)  The material contains less than a total of 1% of the toxic organic compounds listed in 40 C.F.R. part 261, appendix VIII.

                                    (C)  The material is processed continually on-site in the halogen acid furnace by direct conveyance such as hard piping.

            (c)   It is a military munition identified as a waste under R 299.9817.

(2)  Any of the following materials may be wastes under subrule (1) of this rule:

            (a)  Spent materials.

            (b)  Sludges and by-products listed in R 299.9220 to R 299.9223.

            (c)  Scrap metal other than excluded scrap metal.

            (d)  Sludges and by-products that exhibit a characteristic of hazardous waste.

            (e)  Commercial chemical products listed in R 299.9214.

(3)  Except as provided in subrule (4) of these rules, materials are not wastes if they can be shown to be recycled by any of the following means:

            (a)  By being used or reused as ingredients in an industrial process to make a product if the materials are not being reclaimed.

            (b)  By being used or reused as effective substitutes for commercial products.

            (c)  By being returned to the original process from which they are generated without first being reclaimed or placed on the land.  The material must be returned as a substitute for feedstock materials. If the original process to which the material is returned is a secondary process, then the materials must be managed so that they are not placed on the land.

In cases where the materials are generated and reclaimed within the primary mineral processing industry, the conditions of the exclusion under R 299.9204(1)(v) apply rather than this subrule.

(4)  All of the following materials are wastes, even if the recycling involves use, reuse, or return to the original process described in subrule (3) of this rule:

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

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

            (c)  Materials accumulated speculatively.

            (d)  Inherently waste-like materials listed in subrule (1)(b)(v) and (vi) of this rule.

(5)  Respondents in actions to enforce regulations implementing part 111 of the act who raise a claim that a certain material is not waste or is conditionally exempt from regulation shall demonstrate that there is a known market or disposition for the material and that the respondent meets the terms of exclusion or exemption.  In doing so, the respondent shall 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 shall show that they have the necessary equipment for recycling the materials.

(6)  The director may determine, on a case-by-case basis, that the following recycled materials are not wastes:

            (a)  Materials that are accumulated speculatively without sufficient amounts being recycled, as defined in R 299.9107.

            (b)  Materials that are reclaimed and then reused within the original production process in which they were generated.

            (c)  Materials that have been reclaimed, but must be reclaimed further before the materials are completely recovered.

(7)  The director shall use the criteria and procedures outlined in 40 C.F.R. §§260.31 and 260.33 for making determinations under subrule (6) of this rule.

(8)  The provisions of 40 C.F.R. §§260.31, 260.33, 261.31, 261.32, and 261.33 are adopted by reference in R 299.11003, with the exception that the word "director" shall replace the word "regional administrator."