OAR 340-093-0290: Case-Specific Beneficial Use Review Procedures

Any person may apply to the Department for case-specific approval for the beneficial use of a solid waste that is not a standing beneficial use under OAR 340-093-0270. A written application must include the information required under the tier in sections (1), (2), or (3) of this rule that is most appropriate for the level of Department review necessary to make a determination. (1) Tier One, an application for the beneficial use of a solid waste that does not contain hazardous substances significantly exceeding the concentration in a comparable raw material or commercial product and that will be used in a manufactured product, must include: (a) Name, address, and telephone number of the applicant and the generator; (b) Description of the material, manner of generation, and estimated quantity to be used each year; (c) A description of the proposed use; (d) A comparison of the chemical and physical characteristics of the material proposed for use with the material it will replace; (e) A demonstration of compliance with the performance criteria in OAR 340-093-0280 based on knowledge of the process that generated the material, properties of the finished product, or testing; and (f) Any other information the Department may require to evaluate the proposal. (2) Tier Two, an application for the beneficial use of a solid waste that contains hazardous substances significantly exceeding the concentration in a comparable raw material or commercial product, or involves application on the land must include: (a) The information required in section (1) of this rule; (b) Sampling and analysis that provides chemical, physical, and where appropriate, biological characterization of the material and potential contaminants in the material or the end product, if applicable; (c) A risk screening comparing the concentration of hazardous substances in the material to existing, Department approved, risk-based screening level values and demonstrating compliance with acceptable risk levels; (d) Location or type of land use where the material will be applied, consistent with the risk scenarios used to evaluate risk; and (e) A description of how the material will be managed to minimize potential adverse impacts to public health, safety, welfare, or the environment. (3) Tier Three, an application for the beneficial use of a solid waste that requires research, such as a literature review or risk assessment, or for a demonstration project to demonstrate compliance with this rule, must include: (a) The information required in section (2) of this rule; (b) A discussion of the justification for the proposal; (c) The expected length of time that will be required to complete a demonstration; and (d) The methods proposed to ensure safe and proper management of the material during a demonstration. (4) Upon receipt of an application, the Department: (a) May request additional information necessary to determine whether the application meets the criteria for approval under this rule, and (b) Will determine the tier in sections (1), (2), or (3) of this rule that applies to the application and require payment of the associated fee in OAR 340-097-0120(2)(f). (5) Upon completing review of the information submitted, the Department will: (a) Notify the applicant in writing that a beneficial use determination has been made including any conditions for the determination; (b) Deny the request for a case-specific beneficial use determination; or (c) Authorize a demonstration project for an innovative process or technology that is a proposed beneficial use. (6) The Department will issue demonstration project authorizations for a period of up to one year to determine whether the proposed use meets the criteria for a beneficial use determination. Within one year, the applicant must submit a progress report to the Department. Upon completing review of the report, the Department will: (a) Issue a case-specific beneficial use determination for the proposed use; (b) Extend the demonstration authorization for up to an additional year; or (c) Deny the request for a beneficial use determination if the proposed use is not likely to meet the criteria for a beneficial use determination within an additional one-year period. (7) At the request of the Department, a person managing solid waste under this rule must: (a) Submit a material management plan that specifies pre-use management requirements for department review and approval; (b) Document the current and reasonably likely future land use, where the beneficial use involves land application at a specific location; (c) Allow the Department at any reasonable time to inspect the location where the material is stored, used, or otherwise located to ensure compliance with this rule; and (d) Submit a report that confirms that the material characterization and operating practices continue to comply with the beneficial use as approved. (8) The Department will publish a list of all case-specific beneficial use determinations. (9) The Department may modify or revoke a case-specific beneficial use determination or a demonstration project authorization if it determines that: (a) The application includes a material misrepresentation or false statement; (b) The material has not been used in accordance with the performance criteria listed in OAR 340-093-0280 and all specified conditions of approval; (c) A violation of any statute, rule, order, permit, ordinance, judgment or decree regarding the use has occurred; or (d) Based on new information or changed conditions, the proposed beneficial use has the potential to cause an adverse impact to public health, safety, welfare, or the environment. (10) Upon denial or revocation of a case-specific beneficial use determination or a demonstration project authorization, the material is subject to regulation as a solid waste in accordance with applicable provisions of ORS 459 and OAR chapter 340, divisions 93 through 97. In such a case, failure to comply with these provisions may be cause for the assessment of civil penalties as provided in OAR chapter 340, division 12 or for any other enforcement action provided by law.