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§268.44 Variance from a treatment standard.
Link to an amendment published at 67 FR 36818, May 28, 2002.
(a) Based on a petition filed by a generator or treater of hazardous waste, the Administrator may approve a variance from an applicable treatment standard if:
(1) It is not physically possible to treat the waste to the level specified in the treatment standard, or by the method specified as the treatment standard. To show that this is the case, the petitioner must demonstrate that because the physical or chemical properties of the waste differ significantly from waste analyzed in developing the treatment standard, the waste cannot be treated to the specified level or by the specified method; or
(2) It is inappropriate to require the waste to be treated to the level specified in the treatment standard or by the method specified as the treatment standard, even though such treatment is technically possible. To show that this is the case, the petitioner must either demonstrate that:
(i) Treatment to the specified level or by the specified method is technically inappropriate (for example, resulting in combustion of large amounts of mildly contaminated environmental media); or
(ii) For remediation waste only, treatment to the specified level or by the specified method is environmentally inappropriate because it would likely discourage aggressive remediation.
(b) Each petition must be submitted in accordance with the procedures in §260.20.
(c) Each petition must include the following statement signed by the
petitioner or an authorized representative: I certify under penalty of law that I have personally examined and am
familiar with the information submitted in this petition 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 these are
significant penalties for submitting false information, including the
possibility of fine and imprisonment. (d) After receiving a petition for variance from a treatment standard, the
Administrator may request any additional information or samples which he may
require to evaluate the petition. Additional copies of the complete petition may
be requested as needed to send to affected states and Regional Offices.
(e) The Administrator will give public notice in the FEDERAL REGISTER of the
intent to approve or deny a petition and provide an opportunity for public
comment. The final decision on a variance from a treatment standard will be
published in the FEDERAL REGISTER.
(f) A generator, treatment facility, or disposal facility that is managing a
waste covered by a variance from the treatment standards must comply with the
waste analysis requirements for restricted wastes found under §268.7.
(g) During the petition review process, the applicant is required to comply
with all restrictions on land disposal under this part once the effective date
for the waste has been reached.
(h) Based on a petition filed by a generator or treater of hazardous waste,
the Administrator or his or her delegated representative may approve a
site-specific variance from an applicable treatment standard if:
(1) It is not physically possible to treat the waste to the level specified
in the treatment standard, or by the method specified as the treatment standard.
To show that this is the case, the petitioner must demonstrate that because the
physical or chemical properties of the waste differ significantly from waste
analyzed in developing the treatment standard, the waste cannot be treated to
the specified level or by the specified method; or
(2) It is inappropriate to require the waste to be treated to the level
specified in the treatment standard or by the method specified as the treatment
standard, even though such treatment is technically possible. To show that this
is the case, the petitioner must either demonstrate that:
(i) Treatment to the specified level or by the specified method is
technically inappropriate (for example, resulting in combustion of large amounts
of mildly contaminated environmental media where the treatment standard is not
based on combustion of such media); or
(ii) For remediation waste only, treatment to the specified level or by the
specified method is environmentally inappropriate because it would likely
discourage aggressive remediation.
(3) For contaminated soil only, treatment to the level or by the method
specified in the soil treatment standards would result in concentrations of
hazardous constituents that are below (i.e., lower than) the concentrations
necessary to minimize short- and long-term threats to human health and the
environment. Treatment variances approved under this paragraph must:
(i) At a minimum, impose alternative land disposal restriction treatment
standards that, using a reasonable maximum exposure scenario:
(A) For carcinogens, achieve constituent concentrations that result in the
total excess risk to an individual exposed over a lifetime generally falling
within a range from 10−4 to 10−6; and
(B) For constituents with non-carcinogenic effects, achieve constituent
concentrations that an individual could be exposed to on a daily basis without
appreciable risk of deleterious effect during a lifetime.
(ii) Not consider post-land-disposal controls.
(4) For contaminated soil only, treatment to the level or by the method
specified in the soil treatment standards would result in concentrations of
hazardous constituents that are below (i.e., lower than) natural background
concentrations at the site where the contaminated soil will land disposed.
(5) Public notice and a reasonable opportunity for public comment must be
provided before granting or denying a petition.
(i) Each application for a site-specific variance from a treatment standard
must include the information in §260.20(b)(1)-(4);
(j) After receiving an application for a site-specific variance from a
treatment standard, the Assistant Administrator, or his delegated
representative, may request any additional information or samples which may be
required to evaluate the application.
(k) A generator, treatment facility, or disposal facility that is managing a
waste covered by a site-specific variance from a treatment standard must comply
with the waste analysis requirements for restricted wastes found under §268.7.
(l) During the application review process, the applicant for a site-specific
variance must comply with all restrictions on land disposal under this part once
the effective date for the waste has been reached.
(m) For all variances, the petitioner must also demonstrate that compliance
with any given treatment variance is sufficient to minimize threats to human
health and the environment posed by land disposal of the waste. In evaluating
this demonstration, EPA may take into account whether a treatment variance
should be approved if the subject waste is to be used in a manner constituting
disposal pursuant to 40 CFR 266.20 through 266.23.
(n) [Reserved]
(o) The following facilities are excluded from the treatment standards under
§268.40, and are subject to the following constituent concentrations: [51 FR 40642, Nov. 7, 1986, as amended at 52 FR 21017, June 4, 1987;
53 FR 31221, Aug. 17, 1988; 54 FR 36972, Sept. 6, 1989; 56 FR 12355, Mar. 25,
1991; 61 FR 55727, Oct. 28, 1996; 62 FR 26025, May 12, 1997; 62 FR 64509, Dec.
5, 1997; 63 FR 28738, May 26, 1998; 64 FR 28391, May 26, 1999; 66 FR 33890, June
26, 2001; 67 FR 35928, May 22, 2002; 67 FR 36818, May 28, 2002]
Table_Wastes Excluded From the Treatment Standards Under § 268.40
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Wastewaters Nonwastewaters
Regulated hazardous ---------------------------------------------------------
Facility name\1\ and address Waste code See also constituent Concentration Concentration
(mg/l) Notes (mg/kg) Notes
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Craftsman Plating and Tinning, F006 Table CCWE in 268.40. Cyanides (Total)..... 1.2 (\2\) 1800 (\4\)
Corp., Chicago, IL.
............ Cyanides (Amenable).. .86 (\2\ and 30 (\4\)
\3\)
............ Cadmium.............. 1.6 ............ NA ............
............ Chromium............. .32 ............ NA ............
............ Lead................. .040 ............ NA ............
............ Nickel............... .44 ............ NA ............
CWM Chemical Services, LLC, Model K088\9\ Standards under Arsenic.............. 1.4 NA 5.0 mg/L TCLP NA
City, New York. § 268.40.
Dupont Environmental K088 Standards under Arsenic.............. 1.4 NA 5.0 mg/L TCLP NA
Treatment_Chambers Works § 268.40.
Wastewater Treatment Plant,
Deepwater, NJ \8\.
Owens Brockway Glass Container D010 Table CCWE in 268.40. Selenium............. NA NA 51 NA
Company, Vernon, CA (\5\), (\7\).
Northwestern Plating Works, Inc., F006 Table CCWE in 268.40. Cyanides (Total)..... 1.2 (\2\ and 970 (\4\)
Chicago, IL. \3\)
............ Cyanides (Amenable).. .86 (\2\) 30 (\4\)
............ Cadmium.............. 1.6 ............ NA ............
............ Chromium............. .32 ............ NA ............
............ Lead................. .040 ............ NA ............
............ Nickel............... .44 ............ NA ............
St. Gobain Containers, El Monte, D010 Standards under Selenium............. NA NA 25 NA
CA \(6)\ \(7)\. § 268.40.
U.S. Ecology Idaho, Incorporated, K088\10\ Standards under Arsenic.............. 1.4 NA 5.0 mg/L TCLP NA
Grandview, Idaho. § 268.40.
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(\1\)_A facility may certify compliance with these treatment standards according to provisions in 40 CFR 268.7.
(\2\)_Cyanide Wastewater Standards for F006 are based on analysis of composite samples.
(\3\)_These facilities must comply with 0.86 mg/l for amenable cyanides in the wastewater exiting the alkaline chlorination system. These facilities
must also comply with 40 CFR § 268.7.a.4 for appropriate monitoring frequency consistent with the facilities' waste analysis plan.
(\4\)_Cyanide nonwastewaters are analyzed using SW-846 Method 9010 or 9012, sample size 10 grams, distillation time, 1 hour and 15 minutes.
(\5\)_Alternative D010 selenium standard only applies to dry scrubber solid from glass manufacturing wastes.
(\6\)_Alternative D010 selenium standard only applies to dry scrubber solid from glass manufacturing wastes.
(\7\)_D010 wastes generated by these two facilities are subject to the following conditions: (a) the wastes must be treated by Chemical Waste
Management, Inc. at their Kettleman Hills facility in Kettleman City, California; and (b) this treatment variance will be valid until May 11, 2002.
(\8\) Dupont Environmental Treatment-Chambers Works must dispose of this waste in their on-site Subtitle C hazardous waste landfill.
(\9\) This treatment standard applies only to K088-derived bag house dust, incinerator ash, and filtercake at this facility.
(\10\) This treatment standard applies only to K088-derived air emission control dust generated by this facility.
Note: NA means Not Applicable.
