General. Any person may petition the Secretary to modify or revoke any provision in this subtitle. This section sets forth general requirements which apply to these petitions. Section B of this regulation sets forth additional requirements for petitions to add a testing or analytical method to COMAR 26.13.02, 26.13.05, or 26.13.06. Section C of this regulation sets forth additional requirements for petitions to exclude a waste at a particular facility from COMAR 26.13.02.03 or the lists of hazardous wastes in COMAR 26.13.02.15—.19. Section J of this regulation sets forth additional requirements for petitions to amend COMAR 26.13.10.06—.25 to include additional hazardous waste as universal waste. Each petition shall be submitted to the Secretary by certified mail and shall include: The petitioner's name and address; A statement of the petitioner's interest in the proposed action; A description of the proposed action, including (when appropriate) suggested regulatory language; and A statement of the need and justification for the proposed action, including any supporting tests, studies, or other information. The Secretary will make a tentative decision to grant or deny a petition and will publish notice of the tentative decision, either in the form of an advanced notice of proposed rule making, a proposed rule, or a tentative determination to deny the petition, in the Maryland Register for written public comment. Upon the written request of any interested person, the Secretary may, at his discretion, hold an informal public hearing to consider oral comments on the tentative decision. A person requesting a hearing shall state the issues to be raised and explain why written comments would not suffice to communicate the person's views. The Secretary may in any case decide on his own motion to hold an informal public hearing. After evaluating all public comments, the Secretary will make a final decision by publishing in the Maryland Register a regulatory amendment or a denial of the petition. Petitions for Equivalent Testing or Analytical Methods. Any person seeking to add a testing or analytical method to COMAR 26.13.02, 26.13.05, or 26.13.06 may petition for a regulatory amendment under this section and §A of this regulation. To be successful, the person shall demonstrate to the satisfaction of the Secretary that the proposed method is equal to or superior to the corresponding method prescribed in COMAR 26.13.02, 26.13.05, or 26.13.06 in terms of its sensitivity, accuracy, and precision, that is, its reproducibility. Each petition shall include, in addition to the information required by §A(2) of this regulation: A full description of the proposed method, including all procedural steps and equipment used in the method; A description of the types of wastes or waste matrices for which the proposed method may be used; Comparative results obtained from using the relevant or corresponding methods prescribed in COMAR 26.13.02, 26.13.05, or 26.13.06; An assessment of any factors which may interfere with, or limit the use of, the proposed method; and A description of the quality control procedures necessary to ensure the sensitivity, accuracy, and precision of the proposed method. After receiving a petition for an equivalent method, the Secretary may request any additional information on the proposed method which he may reasonably require to evaluate the method. Procedures to Amend COMAR 26.13.02 to Exclude a Waste Produced at a Particular Facility. This section establishes procedures under which waste from a particular generating facility may be excluded from the lists in COMAR 26.13.02.15—.19. For a waste that is listed as a hazardous waste in both 40 CFR Part 261, Subpart D, and COMAR 26.13.02.15—.19: A person who seeks to exclude the waste from the lists in COMAR 26.13.02.15—.19 shall do so by petitioning the Administrator of the U.S. Environmental Protection Agency, following the procedures in 40 CFR §260.22; and If the petition submitted in accordance with §B-1(2)(a) of this regulation is successful: EPA will add the waste to the appropriate table in Appendix IX of 40 CFR Part 261; and The waste will be excluded from the lists of hazardous wastes in COMAR 26.13.02.15—.19 through the action of COMAR 26.13.02.25. For a waste that is listed as a hazardous waste in COMAR 26.13.02.15—.19, but not in 40 CFR Part 261, Subpart D: A person who seeks to exclude the waste from the lists in COMAR 26.13.02.15—.19 shall do so by following the procedures in §C of this regulation; and If the petition submitted in accordance with §C of this regulation is successful, the Department will identify the waste in COMAR 26.13.02.26. Petitions to Amend COMAR 26.13.02 to Exclude a Waste Produced at a Particular Facility. A person seeking to exclude a waste identified in §B-1(3) of this regulation that is generated at a particular generating facility from the lists in COMAR 26.13.02.15—.19 may petition for a regulatory amendment under this section and §A of this regulation, but the petitioner shall be successful only if: The petitioner demonstrates to the satisfaction of the Secretary that the waste produced by a particular generating facility does not meet any of the criteria under which the waste was listed as a hazardous or an acutely hazardous waste; The petitioner satisfies the requirements of §C(3)—(8) of this regulation; and Even if the Secretary has a reasonable basis to believe that factors other than those for which the waste was listed could cause the waste to be a hazardous waste, the Secretary determines that these factors do not warrant retaining the waste as a hazardous waste, subject to the following: The Secretary's determination shall be based on a petition that is a complete application, in that it includes all information required by this section; The other factors considered by the Secretary in evaluating whether the waste should be excluded from the waste listing may include the presence of additional constituents in the waste other than those that caused the waste to be listed; and Even if the Secretary concludes that the waste should be excluded from the waste listing, the waste still may be a hazardous waste by operation of COMAR 26.13.02.10—.14. Procedures. Subject to §C(2)(b) of this regulation, a person may use the procedures in this section and §A of this regulation to petition the Secretary for a regulatory amendment to exclude from COMAR 26.13.02.03A(2)(b) or B a waste that is described in those sections and is a waste that: Is listed in COMAR 26.13.02.15—.19; Contains a waste listed in COMAR 26.13.02.15—.19; or Is derived from a waste listed in COMAR 26.13.02.15—.19. The following conditions apply in connection with petitions made under this section: An exclusion granted in response to the petition may only be issued for a particular generating, storage, treatment, or disposal facility; The petitioner shall make the same demonstration as required by §C(1) of this regulation, except that if the waste is a mixture of solid waste and one or more listed hazardous wastes or if the waste is derived from one or more hazardous wastes, the petitioner's demonstration may be made with respect to each constituent listed waste or the waste mixture as a whole; and A waste which is excluded as a result of the petition may still be a hazardous waste by operation of COMAR 26.13.02.10—14. If the waste is listed with codes “I”, “C”, “R”, or “E” in COMAR 26.13.02.15—.19: The petitioner shall show that the waste does not exhibit the relevant characteristic for which the waste was listed as defined in COMAR 26.13.02.11—.14 using any applicable methods prescribed there. The petitioner shall also show that the waste does not exhibit any of the other characteristics defined in COMAR 26.13.02.11—.14 using any applicable methods prescribed there. Based on a complete application, the Secretary shall determine when he has a reasonable basis to believe that factors, including additional constituents, other than those for which the waste was listed could cause the waste to be a hazardous waste, that these factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded, however, still may be a hazardous waste by operation of COMAR 26.13.02.10—.14. For waste listed with code “T” in COMAR 26.13.02.15—.19: The petitioner shall demonstrate that the waste: Does not contain the constituent or constituents, as defined in COMAR 26.13.02.23, that caused the Secretary to list the waste, using the appropriate test methods prescribed in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods”, EPA Publication SW-846, as incorporated by reference in Regulation .05 of this chapter; or Although containing one or more of the hazardous constituents as defined in COMAR 26.13.02.24 that caused the Secretary to list the waste, does not meet the criterion of COMAR 26.13.02.09A(3) when considering the COMAR 26.13.02.09A(3)(a)—(k) under which the waste was listed as a the waste was listed as a hazardous waste; Based on a complete application, the Secretary shall determine, when he has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that these factors do not warrant retaining the waste as a hazardous waste; The petitioner shall demonstrate that the waste does not exhibit any of the characteristics defined in COMAR 26.13.02.10—.14 using any applicable methods prescribed there; and A waste which is so excluded, however, still may be a hazardous waste under COMAR 26.13.02.10—.14. If the waste is listed with the code “H” in COMAR 26.13.02.15—.19: The petitioner shall demonstrate that the waste does not meet the criterion of COMAR 26.13.02.09A(2); Based on a complete application, the Secretary shall determine, when he has a reasonable basis to believe that additional factors, including additional constituents, other than those for which the waste was listed could cause the waste to be a hazardous waste, that these factors do not warrant retaining the waste as a hazardous waste; The petitioner shall demonstrate that the waste does not exhibit any of the characteristics defined in COMAR 26.13.02.11—.14 using any applicable methods prescribed there; and A waste which is so excluded, however, still may be a hazardous waste by operation of COMAR 26.13.02.10—.14. Demonstration samples shall consist of enough representative samples, but not less than four samples, taken over a period of time sufficient to represent the variability or the uniformity of the waste. Each petition shall include, in addition to the information required by Regulation .04A(2): The name and address of the laboratory facility performing the sampling or tests of the waste; The names and qualifications of the persons sampling and testing the waste; The dates of sampling and testing; The location of the generating facility; A description of the manufacturing processes or other operations and feed materials producing the waste and an assessment of whether these processes, operations, or feed materials can or might produce a waste that is not covered by the demonstration; A description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the demonstration; Pertinent data on and discussion of the factors delineated in the respective criterion for listing a hazardous waste, where the demonstration is based on the factors in COMAR 26.13.02.09A(3); A description of the methodologies and equipment used to obtain the representative samples; A description of the sample handling and preparation techniques used for extraction, containerization, and preservation of the samples; A description of the tests performed (including results); The names and model numbers of the instruments used in performing the tests; and The following statement signed by the generator of the waste or his authorized representative: I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment. After receiving a petition for an exclusion, the Secretary may request any additional information which he may reasonably require to evaluate the petition. An exclusion will only apply to the waste generated at the individual facility covered by the demonstration and will not apply to waste from any other facility. The Secretary may exclude only part of the waste from which the demonstration is submitted when he has reason to believe that variability of the waste justifies a partial exclusion. Variances from Classification as a Solid Waste. In accordance with the standards and criteria in §E of this regulation and the procedures in §G of this regulation, the Secretary may determine on a case-by-case basis that the following recycled materials are not solid wastes: Material accumulated speculatively without sufficient amounts being recycled as defined in COMAR 26.13.02.01D; Materials that are reclaimed and then reused within the original primary production process in which they were generated; Materials that have been reclaimed but must be reclaimed further before the materials are completely recovered; Hazardous secondary materials that are reclaimed in a continuous industrial process; and Hazardous secondary materials that are indistinguishable in all relevant aspects from a product or intermediate. Standards and Criteria for Variances from Classification as a Solid Waste. The Secretary 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 Secretary's decision will be based on all of the following standards and criteria: 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, as evidenced by, for example, past practices, market factors, the nature of the material, or contractual arrangements for recycling. 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. The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled. The extent to which the material is handled to minimize loss. Other relevant factors. The Secretary 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 primary 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: How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials; The prevalence of the practice on an industry-wide basis; The extent to which the material is handled before reclamation to minimize loss; The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process; The location of the reclamation operation in relation to the production process; 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; Whether the person who generates the material also reclaims it; and Other relevant factors. The Secretary: 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; and Shall base a determination that a partially reclaimed material is commodity-like on whether the hazardous secondary material is legitimately recycled, as specified in §L of this regulation, and on whether all of the following decision criteria are satisfied: Whether the degree of partial reclamation is substantial, as demonstrated by the partial reclamation being accomplished through use of a partial reclamation process other than the process that generated the hazardous waste; Whether the partially reclaimed material has sufficient economic value so that it will be purchased for further reclamation; Whether the partially reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials, and is used in subsequent production steps; Whether there is a market for the partially reclaimed material, as demonstrated by there being a known customer or customers engaged in further reclaiming the material, supported by evidence such as records of sales, contracts, or bills of lading or other indicators of subsequent use; and Whether the partially reclaimed material is handled to minimize loss. Variance to be Classified as a Boiler. In accordance with the standards and criteria in Regulation .03B(5) of this chapter defining “boiler”, and the procedure in §G of this regulation, the Secretary may determine on a case-by-case basis that certain enclosed devices using controlled flame combustion are boilers, even though they do not otherwise meet the definition of boiler contained in Regulation .03B(5) of this chapter, after considering the following criteria: The extent to which the unit has provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases; The extent to which the combustion chamber and energy recovery equipment are of integral design; The efficiency of energy recovery, calculated in terms of the recovered energy compared with the thermal value of the fuel; The extent to which exported energy is used; The extent to which the device is in common and customary use as a “boiler” functioning primarily to produce steam, heated fluids, or heated gases; and Other factors, as appropriate. Procedures for Variances from Classification as a Solid Waste or Classification as a Boiler. The Secretary shall use the following procedures in evaluating applications for variances from classification as a solid waste or applications to classify particular enclosed flame combustion devices as boilers: The applicant shall apply to the Secretary. The application shall address the relevant criteria contained in §E or F of this regulation. The Secretary: Shall evaluate the application for the variance and issue a draft notice tentatively granting or denying the application; Shall provide notification of this tentative decision by newspaper advertisement and radio broadcast in the locality where the recycler is located; Shall accept comment on the tentative decision for 45 days; May hold a public hearing on the tentative decision upon request or at the Secretary's discretion; and Shall issue a final decision after receipt of comments and after any scheduled hearing. If there is a change in circumstances that affects how a hazardous secondary material meets the relevant criteria in §E or F of this regulation upon which a variance had been based, the applicant shall send a description of the change to the Secretary. The Secretary may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance, or may require the applicant to reapply for the variance. Expiration of Variances. The Secretary shall specify a fixed term not to exceed 10 years during which a variance is effective. If a person wishes to continue to operate under a variance, the person shall, no later than 6 months before the end of the fixed term specified under §G(4)(a) of this regulation, reapply for the variance. If a person submits a complete application within 6 months of the end of the fixed term of the variance, the person may continue to operate under the expired variance until receiving a decision on the reapplication from the Secretary. A person who receives a variance under this section shall provide notification in accordance with §K of this regulation. Additional Regulation of Certain Hazardous Waste Recycling Activities on a Case-By-Case Basis. The Secretary may decide on a case-by-case basis that persons accumulating or storing the recyclable materials described in COMAR 26.13.02.06A(2)(b)(iii) shall be regulated under COMAR 26.13.02.06B and C. The basis for this decision is that the materials are being accumulated or stored in a manner that does not protect human health and the environment because the materials or their toxic constituents have not been adequately contained, or because the materials being accumulated or stored together are incompatible. In making this decision, the Secretary shall consider the following factors: The types of materials accumulated or stored and the amounts accumulated or stored; The method of accumulation or storage; The length of time the materials have been accumulated or stored before being reclaimed; Whether any contaminants are being released into the environment, or are likely to be so released; and Other relevant factors. The procedures for this decision are set forth in §I of this regulation. Procedures for Case-By-Case Regulation of Hazardous Waste Recycling Activities. The Secretary shall use the following procedures when determining whether to regulate hazardous waste recycling activities described in COMAR 26.13.02.06A(2)(b)(iii), under the provisions of COMAR 26.13.02.06B and C, rather than under the provisions of COMAR 26.13.10.03: If a generator is accumulating the waste: The Secretary shall issue a notice setting forth the factual basis for the decision to regulate and stating that the person shall comply with the applicable requirements of COMAR 26.13.03.01—.03 and .05—.07; The notice referred to in §I(1)(a) of this regulation becomes final within 30 days, unless the person served challenges the decision; and If the person who is served a notice under §I(1)(a) of this regulation challenges the serving of the notice, the Secretary shall: Hold a public hearing; Provide notice of the public hearing to the public and allow public participation at the hearing; Issue a final order after the public hearing stating whether or not compliance with COMAR 26.13.03 is required; Make the order required by §I(1)(c)(iii) of this regulation effective 30 days after it is received by the person to whom it is directed, unless the Secretary specifies a later date. If the person is accumulating the recyclable material at a storage facility, the Secretary shall issue a notice stating that the person shall obtain a permit in accordance with all applicable provisions of COMAR 26.13.07. The following additional requirements apply in instances when the person is accumulating the recyclable material at a storage facility: The owner or operator of the facility shall apply for a permit within not less than 60 days and not more than 6 months of notice under §I(2) of this regulation, as specified in the notice; The owner or operator of the facility may challenge the Secretary's decision under §I(2) of this regulation to require a permit in: The permit application; A public hearing held on the draft permit; or Comments filed on the draft permit or the notice of intent to deny the permit; The Secretary shall specify in the fact sheet accompanying the permit for the storage facility the reasons for the Secretary's determination that a permit is required; and The question of whether the Secretary's decision to require a permit was proper remains open for consideration during the public comment period associated with the permit and in any subsequent hearing on the permit. Petitions to Amend COMAR 26.13.10.06—.25 to Include Additional Hazardous Wastes as Universal Wastes. A person seeking to add a hazardous waste or a category of hazardous waste to the universal waste regulations of COMAR 26.13.10.06—.25 may petition for a regulatory amendment under this section, §A of this regulation, and COMAR 26.13.10.25. To be successful, a petitioner shall: Demonstrate to the satisfaction of the Secretary that regulation under the universal waste regulations of COMAR 26.13.10.06—.25: Is appropriate for the waste or category of waste; Will improve management practices for the waste or category of waste; and Will improve implementation of the hazardous waste program; Include in the petition the information required by §A(2) of this regulation; and Address in the petition as many of the factors listed in COMAR 26.13.10.25B as are appropriate for the waste or category of waste that is the subject of the petition. The Secretary shall: Grant or deny a petition to include additional hazardous wastes as universal wastes using the factors listed in COMAR 26.13.10.25B to evaluate the merits of the petition; Base the decision to grant or deny the petition on the weight of evidence showing that regulation under COMAR 26.13.10.06—.25: Is appropriate for the waste or category of waste; Will improve management practices for the waste or category of waste; and Will improve implementation of the hazardous waste program. The Secretary may request additional information to evaluate the merits of a petition to include additional hazardous wastes as universal wastes. Notification Requirements for Variances from Classification as a Solid Waste. A person managing a hazardous secondary material under a variance granted in accordance with §D of this regulation shall provide notification in accordance with the requirements of this section. A person providing notification under §K(1) of this regulation shall: Provide notification to the Department before operating under the variance and by March 1 of each even-numbered year thereafter using EPA Form 8700-12 or another method acceptable to the Department; and Include the following information in the notification: The name, address, and, if applicable, the EPA ID number of the facility; The name and telephone number of a contact person; The NAICS code of the facility; The regulation under which the hazardous secondary material will be managed; The date when the facility expects to begin managing the hazardous secondary material in accordance with the regulation; A list of hazardous secondary materials that will be managed according to the regulation, reported as the EPA hazardous waste numbers that would apply if the hazardous secondary material were managed as hazardous waste; For each hazardous secondary material, whether the hazardous secondary material, or any portion of the hazardous secondary material, will be managed in a land-based unit; The quantity of each hazardous secondary material to be managed annually; and The certification included in EPA Form 8700-12 signed and dated by an authorized representative of the facility. If a person managing hazardous secondary materials has submitted a notification, but then subsequently stops managing hazardous secondary materials under a variance granted under §D of this regulation, the person shall notify the Department within 30 days using EPA Form 8700-12. For the purposes of this requirement, a facility is considered to have stopped managing hazardous secondary materials if the facility no longer generates, manages, or reclaims hazardous secondary materials under §D of this regulation and does not expect to manage any amount of hazardous secondary materials for at least 1 year. Legitimate Recycling of Hazardous Secondary Materials. General Considerations. The recycling of a hazardous secondary material may qualify for an exclusion or exemption from the hazardous waste regulations only if the recycling is legitimate, as specified in this section. A hazardous secondary material that is not legitimately recycled is discarded material and is a solid waste. To demonstrate that an activity claimed to be recycling is legitimate recycling, a person shall: Address all the requirements of §L(2) of this regulation; and Consider the requirements of §L(3) of this regulation. The Secretary: Shall determine that an activity claimed to be recycling is legitimate recycling only if all the criteria of §L(2) of this regulation are met; and May determine that an activity claimed to be recycling is not legitimate recycling based on consideration of the supplemental factors identified in §L(3) of this regulation. Mandatory Criteria. In order to be considered legitimate recycling, an activity is required to: Involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process by: Contributing valuable ingredients to a product or intermediate; Replacing a catalyst or carrier in the recycling process; Serving as the source of a valuable constituent that is recovered in the recycling process; Being recovered or regenerated by the recycling process; or Being used as an effective substitute for a commercial product; Produce a valuable product or intermediate, as indicated by the product or intermediate being: Sold to a third party; or Used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process; and Be conducted in a manner that results in the hazardous secondary material being managed as a valuable commodity when it is under the control of the generator and the recycler, as indicated by the generator and recycler: Managing the hazardous secondary material in a manner consistent with the management of an analogous raw material, if any, or in an equally protective manner as the typical method of management of an analogous raw material; Ensuring that the hazardous secondary material is contained, as described in §L(4) of this regulation, if there is no analogous raw material; and Immediately recovering any hazardous secondary material that is released to the environment, with any released secondary hazardous material that is not immediately recovered being subject to regulation as a discarded material. Supplemental Factors. In evaluating whether an activity that is claimed to be recycling is legitimate recycling, a person shall consider whether the product of the recycling process: Contains significant concentrations of any hazardous constituents identified in COMAR 26.13.02.24 that are not found in analogous products; Contains hazardous constituents identified in COMAR 26.13.02.24 at concentrations that are significantly elevated from those found in analogous products; or Exhibits a hazardous characteristic as defined in COMAR 26.13.02.10—.14 that analogous products do not exhibit. If one or more of the conditions in §L(3)(a) of this regulation is met by a product of a recycling process: This may be an indication that the process is not legitimate recycling; or The process may still be classified as legitimate recycling in consideration of other factors related to the presence of hazardous constituents or the exhibiting of a hazardous characteristic, such as potential exposures to toxics in the product, the bioavailability of the toxics in the product, and other relevant considerations. Criteria to Be Considered Contained. For the purposes of this section, a hazardous secondary material is considered to be contained if the material is held in a unit, including a land-based unit, that meets the following criteria: The unit is in good condition; The unit has no leaks or other continuing or intermittent releases of hazardous secondary material to the environment, except for releases that are authorized by a permit, such as a permit to discharge to water or air; The unit is designed, operated, constructed, and maintained to prevent unpermitted releases to the environment that include, but are not limited to, releases through surface transport by precipitation runoff, releases to soil and ground water, wind-blown dust, fugitive air emissions, and catastrophic unit failures; The unit is properly labeled or operated with an inventory log or other system to allow the immediate identification of the hazardous secondary material in the unit; The unit is operated so that only mutually compatible materials are placed in the unit; The materials being held in the unit are compatible with the materials of construction of the unit; and The unit is designed and operated in a manner that addresses any potential risks of fires or explosions. A hazardous secondary material is presumptively contained if it is held in a unit that meets the standards in COMAR 26.13.05 or 26.13.06 that would be applicable to the hazardous secondary material if it were regulated as a hazardous waste.