(a) Hazardous wastes that are recycled are subject
to the requirements for generators, transporters, and storage facilities
of subsections (d) - (f) of this section, except for the materials
listed in subsections (b) and (c) of this section. Hazardous wastes
that are recycled will be known as recyclable materials. Nonhazardous
industrial wastes that are recycled will be known as nonhazardous
recyclable materials. Nonhazardous recyclable materials are subject
to the requirements of subsections (h) - (l) of this section.
(b) The following recyclable materials are not subject
to the requirements of this section, except as provided in subsections
(g) and (h) of this section, but are regulated under the applicable
provisions of Subchapter H of this chapter (relating to Standards
for the Management of Specific Wastes and Specific Types of Facilities)
and all applicable provisions in Chapter 305 of this title (relating
to Consolidated Permits); Chapter 1 of this title (relating to Purpose
of Rules, General Provisions); Chapter 3 of this title (relating to
Definitions); Chapter 10 of this title (relating to Commission Meetings);
Chapter 17 of this title (relating to Tax Relief for Property Used
for Environmental Protection); Chapter 20 of this title (relating
to Rulemaking); Chapter 37 of this title (relating to Financial Assurance);
Chapter 39 of this title (relating to Public Notice); Chapter 40 of
this title (relating to Alternative Dispute Resolution Procedure);
Chapter 50 of this title (relating to Action on Applications and Other
Authorizations); Chapter 55 of this title (relating to Requests for
Reconsideration and Contested Case Hearings; Public Comment); Chapter
70 of this title (relating to Enforcement); Chapter 80 of this title
(relating to Contested Case Hearings); and Chapter 86 of this title
(relating to Special Provisions for Contested Case Hearings).
  (1) recyclable materials used in a manner constituting
disposal;
  (2) hazardous wastes burned for energy recovery in
boilers and industrial furnaces that are not regulated under Subchapter
E of this chapter (relating to Interim Standards for Owners and Operators
of Hazardous Waste Treatment, Storage, or Disposal Facilities) or
Subchapter F of this chapter (relating to Permitting Standards for
Owners and Operators of Hazardous Waste Treatment, Storage, or Disposal
Facilities);
  (3) recyclable materials from which precious metals
are reclaimed;
  (4) spent lead-acid batteries that are being reclaimed.
(c) The following recyclable materials are not subject
to regulation under Subchapters B - I or O of this chapter (relating
to Hazardous Waste Management General Provisions; Standards Applicable
to Generators of Hazardous Waste; Standards Applicable to Transporters
of Hazardous Waste; Interim Standards for Owners and Operators of
Hazardous Waste Treatment, Storage, or Disposal Facilities; Permitting
Standards for Owners and Operators of Hazardous Waste Treatment, Storage,
or Disposal Facilities; Location Standards for Hazardous Waste Storage,
Processing, or Disposal; Standards for the Management of Specific
Wastes and Specific Types of Facilities; Prohibition on Open Dumps;
and Land Disposal Restrictions); Chapter 1 of this title; Chapter
3 of this title; Chapter 10 of this title; Chapter 17 of this title;
Chapter 20 of this title; Chapter 37 of this title; Chapter 39 of
this title; Chapter 40 of this title; Chapter 50 of this title; Chapter
55 of this title; Chapter 70 of this title; Chapter 80 of this title;
Chapter 86 of this title; or Chapter 305 of this title, except as
provided in subsections (g) and (h) of this section:
  (1) industrial ethyl alcohol that is reclaimed except
that, unless provided otherwise in an international agreement as specified
in the regulations contained in 40 Code of Federal Regulations (CFR) §262.58,
which are in effect as of November 8, 1986:
    (A) a person initiating a shipment for reclamation
in a foreign country, and any intermediary arranging for the shipment,
must comply with the requirements applicable to a primary exporter
in the regulations contained in 40 CFR §§262.53, 262.55,
262.56(a)(1) - (4) and (6) and (b), and 262.57, as amended through
January 8, 2010 (75 FR 1236), export such materials only upon such
consent of the receiving country and in conformance with the United
States Environmental Protection Agency (EPA) acknowledgment of consent
as defined in the regulations contained in 40 CFR Part 262, Subpart
E, as amended through January 8, 2010 (75 FR 1236), and provide a
copy of the EPA acknowledgment of consent to the shipment to the transporter
transporting the shipment for export;
    (B) transporters transporting a shipment for export
may not accept a shipment if he knows the shipment does not conform
to the EPA acknowledgment of consent, must ensure that a copy of the
EPA acknowledgment of consent accompanies the shipment and must ensure
that it is delivered to the facility designated by the person initiating
the shipment;
  (2) scrap metal that is not already excluded under
40 CFR §261.4(a)(13);
  (3) fuels produced from the refining of oil-bearing
hazardous waste along with normal process streams at a petroleum refining
facility if such wastes result from normal petroleum refining, production,
and transportation practices (this exemption does not apply to fuels
produced from oil recovered from oil-bearing hazardous waste, where
such recovered oil is already excluded under 40 CFR §261.4(a)(12));
and
  (4) the following hazardous waste fuels:
    (A) Hazardous waste fuel produced from oil-bearing
hazardous wastes from petroleum refining, production or transportation
practices, or produced from oil reclaimed from such hazardous wastes
where such hazardous wastes are reintroduced into a process that does
not use distillation or does not produce products from crude oil so
long as the resulting fuel meets the used oil specification under
40 CFR §279.11 and so long as no other hazardous wastes are used
to produce the hazardous waste fuel;
    (B) Hazardous waste fuel produced from oil-bearing
hazardous waste from petroleum refining production, and transportation
practices, where such hazardous wastes are reintroduced into a refining
process after a point at which contaminants are removed, so long as
the fuel meets the used oil fuel specification under 40 CFR §279.11;

    (C) Oil reclaimed from oil-bearing hazardous wastes
from petroleum refining, production, and transportation practices,
which reclaimed oil is burned as fuel without reintroduction to a
refining process, so long as the reclaimed oil meets the used oil
fuel specification under 40 CFR §279.11.
(d) Generators and transporters of recyclable materials
are subject to the applicable requirements of Subchapter C of this
chapter and Subchapter D of this chapter, and the notification requirements
of §335.6 of this title (relating to Notification Requirements),
except as provided in subsections (a) - (c) of this section.
(e) Owners or operators of facilities that store recyclable
materials before they are recycled are regulated under all applicable
provisions of this chapter, and Chapter 305 of this title; Chapter
1 of this title; Chapter 3 of this title; Chapter 10 of this title;
Chapter 17 of this title; Chapter 20 of this title; Chapter 37 of
this title; Chapter 39 of this title; Chapter 40 of this title; Chapter
50 of this title; Chapter 55 of this title; Chapter 70 of this title;
Chapter 80 of this title; and the notification requirements under §335.6
of this title, except as provided in subsections (a) - (c) of this
section. The recycling process itself is exempt from regulation.
(f) Owners or operators of facilities that recycle
recyclable materials without storing them before they are recycled
are subject to the following requirements, except as provided in subsections
(a) - (c) of this section:
  (1) notification requirements under §335.6 of
this title; and
  (2) Section 335.12 of this title (relating to Shipping
Requirements Applicable to Owners or Operators of Treatment, Storage,
or Disposal Facilities).
(g) Recyclable materials (excluding those listed in
subsections (b)(4), and (c)(1) - (5) of this section) remain subject
to the requirements of §§335.4, 335.6, and 335.9 - 335.15
of this title (relating to General Prohibitions; Notification Requirements;
Recordkeeping and Annual Reporting Procedures Applicable to Generators;
Shipping and Reporting Procedures Applicable to Generators of Hazardous
Waste or Class 1 Waste and Primary Exporters of Hazardous Waste; Shipping
Requirements for Transporters of Hazardous Waste or Class 1 Waste;
Shipping Requirements Applicable to Owners or Operators of Treatment,
Storage, or Disposal Facilities; Recordkeeping and Reporting Procedures
Applicable to Generators Shipping Hazardous Waste or Class 1 Waste;
Recordkeeping Requirements Applicable to Transporters of Hazardous
Waste or Class 1 Waste; and Recordkeeping and Reporting Requirements
Applicable to Owners or Operators of Treatment, Storage, or Disposal
Facilities, respectively), as applicable. Recyclable materials listed
in subsections (b)(4) and (c)(2) of this section remain subject to
the requirements of subsection (h) of this section.
(h) Industrial solid wastes that are nonhazardous recyclable
materials and recyclable materials listed in subsections (b)(4) and
(c)(2) of this section remain subject to the requirements of §335.4
of this title. In addition, industrial solid wastes that are nonhazardous
recyclable materials and recyclable materials listed in subsection
(c)(2) of this section remain subject to the requirements of §335.6
of this title. Industrial solid wastes that are nonhazardous recyclable
materials and recyclable materials listed in subsections (b)(4) and
(c)(2) of this section may also be subject to the requirements of §§335.10
- 335.15 of this title, as applicable, if the executive director determines
that such requirements are necessary to protect human health and the
environment. In making the determination, the executive director shall
consider the following criteria:
  (1) the waste's toxicity, corrosivity, flammability,
ability to sensitize or irritate, or propensity for decomposition
and creation of sudden pressure;
  (2) the potential for the objectionable constituent
to migrate from the waste into the environment if improperly managed;
  (3) the persistence of any objectionable constituent
or any objectionable degradation product in the waste;
  (4) the potential for the objectionable constituent
to degrade into nonharmful constituents;
  (5) the degree to which the objectionable constituent
bioaccumulates in ecosystems;
  (6) the plausible types of improper management to which
the waste could be subjected;
  (7) the nature and severity of potential damage to
the public health and environment;
  (8) whether subjecting the waste to additional regulation
will provide additional protection for human health and the environment;
and
  (9) other relevant factors.
(i) Except as provided in Texas Health and Safety Code, §361.090,
facilities managing recyclable materials that are required to obtain
a permit under this section may also be permitted to manage nonhazardous
recyclable materials at the same facility if the executive director
determines that such regulation is necessary to protect human health
and the environment. In making this determination, the executive director
shall consider the following criteria:
  (1) whether managing nonhazardous recyclable materials
will create an additional risk of release of the hazardous recyclable
materials into the environment;
  (2) whether hazardous and nonhazardous wastes that
are incompatible are stored and/or processed in the same or connected
units;
  (3) whether the management of recyclable materials
and nonhazardous recyclable materials is segregated within the facility;
  (4) the waste's toxicity, corrosivity, flammability,
ability to sensitize or irritate, or propensity for decomposition
and creation of sudden pressure;
  (5) the potential for the objectionable constituent
to migrate from the waste into the environment if improperly managed;
  (6) the persistence of any objectionable constituent
or any objectionable degradation product in the waste;
  (7) the potential for the objectionable constituent
to degrade into harmful constituents;
  (8) the degree to which the objectionable constituent
bioaccumulates in ecosystems;
  (9) the plausible types of improper management to which
the waste could be subjected;
  (10) the nature and severity of potential damage to
the public health and environment;
  (11) whether subjecting the waste to additional regulation
will provide additional protection for human health and the environment;
and
  (12) other relevant factors.
(j) Closure cost estimates.
  (1) Except as otherwise approved by the executive director,
an owner or operator of a recycling facility that stores combustible
nonhazardous materials outdoors, or that poses a significant risk
to public health and safety as determined by the executive director,
shall provide a written cost estimate, in current dollars, showing
the cost of hiring a third party to close the facility by disposition
of all processed and unprocessed materials in accordance with all
applicable regulations. The closure cost estimate for financial assurance
must be submitted with any new notification in accordance with §335.6
within 60 days of the effective date of this rule for existing facilities
or as otherwise Cont'd...