1. (1) The commissioner may decide on a case-by-case basis that persons accumulating or storing the recyclable materials described in section 371.1(g)(1)(ii)(d) of this Title should be regulated under Parts 372 and 373 of this Title. The basis for such decision must be 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 commissioner will consider the following factors:

   1. (i) the types and amounts of materials accumulated or stored;
   2. (ii) the method of accumulation or storage;
   3. (iii) the length of time the materials have been accumulated or stored before being reclaimed;
   4. (iv) whether any containments are being released into the environment, or are likely to be so released; and

   5. (v) other relevant factors.

      (b) Procedures for case-by-case regulation of hazardous waste recycling activities.

2. (1) The commissioner will use the following procedures, in addition to the procedures under Part 621 of this Title, when determining whether to regulate hazardous waste recycling activities described in section 371.1(g)(1)(ii)(d) of this Title under the provisions of section 374-1.6 of this Title.

   1. (i) If a generator is accumulating the waste, the commissioner will issue a notice setting forth the factual basis for the decision and stating that the person must comply with the applicable requirements of Parts 372 and 373 of this Title. The notice will become final within 30 days, unless the person served requests a public hearing to challenge the decision. Upon receiving such a request, the commissioner will hold an adjudicatory public hearing. The commissioner will provide notice of the hearing to the public and allow public participation at the hearing. The commissioner will issue a final decision based on the hearing officer's report stating whether or not compliance with Parts 372 and 373 is required. The decision becomes effective 30 days after service.
   2. (ii) If the person is accumulating the recyclable material as a storage facility, the notice will state that the person must obtain a permit in accordance with all applicable provisions of Part 373 of this Title. The owner or operator of the facility must apply for a permit within no less than 60 days and no more than six months of notice, as specified in the notice. The owner or operator of a facility who wishes to challenge the commissioner's decision, may do so in the permit application, in a public hearing held on the draft permit, in comments filed on the draft permit or on the notice of intent to deny the permit. The fact sheet accompanying the permit will specify the reasons for the department's determination. The question of whether the commissioner's decision was proper will remain open for consideration during the public comment period discussed under Part 624 of this Title.

(a) Additional regulation of certain hazardous waste recycling activities on a case-by-case basis.