v>EPA
United States
Environmental Protection
Agency
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9433.01(84)
TITLE:
Changes Regarding the Delis ting Review Procedures
APPROVAL DATE: 2~8-84
EFFECTIVE DATE: 2-8-84
ORIGINATING OFFICE: <*«« of Solid Waste
0 FINAL
D DRAFT
STATUS:
[ ] A- Pending OMB approval
{ j B- Pending AA-OSWER approval
[ ] C- For review &/or comment
[ ] D- .In development or circulating
headquarters
REFERENCE (other documents):
OSWER OSWER OSWER
fE DIRECTIVE DIRECTIVE
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PART 260 SUBPART C - RULEMAKING PETITIONS DOC: 9433.01(84)
Key Words: Exclusions, Delisting
Regulations: 40 CFR 260.20, 260.22
Subject: Changes Regarding the Delisting Review Procedures
Addressee: Air & Hazardous Materials Division Directors, Regions I-III & V-X
Originator: John H. Skinner, Director, Office of Solid Waste
Source Doc: #9433.01(84) . .
Date: 2-8-84
Summary:
The delisting procedures §260.20 and §260.22 preclude the Agency from
addressing other hazardous constituents known or suspected to be present in
the waste.
Therefore, petitioners on an individual basis are required to address
additional factors and hazardous constituents other than those for which the
waste was initially listed. The Agency's concern is limited to those consti-
tuents for which there is a reasonable basis to believe that their presence
in the waste may pose a significant potential threat to human health or the
environment. The general type of information requested for each petition
include the following:
1. A complete list of raw materials, intermediates, by-products, and
products used in the manufacturing process (grouped by sub-process);
2. A description and schematic diagram of each process which may contribute
waste to the waste stream petitioned for exclusion;
3. Testing of representative waste samples for total oil and grease and
total organic carbon (TOG);
4. Testing of representative waste samples for all the Extraction Procedure
(EP) toxic metals listed in Table 1 of 40 CFR §261.24, nickel, and
cyanide (both total and free) using a complete digestion procedure; and
5. Testing of representative waste samples for all the EP toxic metals
listed in Table 1 of 40 CFR §261.24, nickel, and cyanide (both total
and free) using an appropriate leachate procedure.
EPA requests generators to provide information on all five items listed
above. Hazardous waste treatment facilities must provide information on Items
2 and 5 and to test representative waste samples for the Appendix VIII toxic
constituents or some sub-set of them.
EPA is required to provide notice and comment before any new exclusion are
granted and to make final determinations on pending temporary exclusions within
24 months of the passage of the 1984 RCRA Amendments (i.e., all temporary exclu-
sions must be final by November 8, 1986).
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FEB -8
MEMORANDUM
SUBJECTS Changes Regarding the Doiisttng Review Procedures
PROMi John H. Sit inner, Director
Office of Solid Waste (WH-562)
TOi Air & Hazardous Materials Division Director
Region IV
The purpose of this memorandum is to inform the Region&l
Office of our intent to request additional information from
those persons who have submitted delisting petitions pursuant
to 40 CFR 260.20 and 260.22 of the Resource Conservation and
Recovery Act- (RCRA). In some instances* these persons have
already been contacted for this additional information by the
Office of Solid Waste (see Attachment A for list of letters
that have already been sent to petitioners in your Region).
In addition, we have been aaked to review and provide concurrence
on several petitions that were submitted to States in Region IV.
We would like your office to inform the appropriate State Agencies
of the additional information that wo recommend be required foe
these petitions (see Attachment H).
As you are aware, Sections 260.20 and 260.22 of the
hazardous waste regulations set forth procedures whereby
A generator of a listed hazardous waste may petition the
Agency to exclude his waste, on a site-specific basis, from
the hazardous waste regulations. The delisting procedures
were designed for the generator (or other petitioner) who
can demonstrate that his waste is fundamentally different
from the listed waste, taking into account the criteria used
by the Administrator in reaching a particular listing
determination. For example, in listing hazardous wastes in
Subpart D of Part 261 as toxic (T), the specific toxic consti-
tuents which caused the waste to be listed were identified
(see Appendix VII of Part 261). In delisting the waste,
therefore, the petitioner need only address those factors
considered by the Agency in listing the waste as hazardous
i.e., the specific toxic constituents identified by the
Agency.
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Although these procedures are relatively straight-forward
to implement, we believe they also present a number of serious
problem*f since they preclude the Agency from addressing other
hazardous constituents known or suspected to be present in the
waste* For example, there could be a situation where a specific
waste nay not contain the toxic constituents that caused the
wast® to be listed (or may contain them in an immobile form or
at levels below those of regulatory concern) while it contains
oth«r toxicants at harmful levels. In such cases, the Agency
may be forced to "delist* the waste, even though the waste may
still be hazardous. (Several of the Regions have also expressed
concern with the existing delisting procedures.) AS a result,
the Office of Solid Waste intends to anend the delisting procedures
to require the Agency to consider these additional constituents
before making a decision.
Congress also shares this opinion and is likely to amend
RCRA to require- the Agency to consider the presence of hazardous
constituents other than those for which a waste is listed in
evaluating dalisting petitions. Congress would also require
notice and comaent before any new exclusions are granted and
would further require the Agency to make final determinations
on pending teraporary exclusions within a short time. (The
House of Representatives already has passed such legislation
(see Hazardous Waste Control and Enforcement Act of 1983, H.R«
2867; Section 13) while the Senate Committee on Environment
and Public Works has favorably reported such legislation (Solid
Waste Disposal Act Amendments of 1933, S. 757, Section 8}.}
Consequently, we believe it appropriate to begin to
request petitioners to address additional factors and hazardous
constituent* other than those for which the petitioned waste
waa initially listed. While we cannot withhold consideration
of petitions under tha existing regulations, obtaining this
additional information now is in the best interest of both
petitioners and the Agency.
Once new legislation is enacted, we will have a vary short
time to finalize all existing temporary exclusions. Given this
deadline, we would probably have a difficult time meeting
this schedule unless the additional information is already
in hand. Furthermore, with respect to new petitions, if we
proceed witb delisting decisions without addresssing data
on other hazardous constituents that may be present in the
waste, we probably would nave to withdraw our decision once
the legislation is enacted or shortly thereafter. Such action
would continue to leave petitioners uncertain as to the
regulatory status of their wastes.
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Therefore, we Intend to request that petitioners, on an
individual basis, address additional factors and hazardous
constituents other than those for which their wasta was
initially listed. Our concern is limited to those constituents
for which there is a reasonable basis to believe that their presence
in the waste could pose a significant threat to human health or
the environment* Although the type and amount of additional
information that will be requested for each petition will vary*
we will be asking for the following general type of information:
Generators of Hazardous Waste
0 a complete list of raw materials, intermediates,
by-products, and products used in the manufacturing
process (grouped by sub-process)?
• a description and schematic diagram of each process
which raay contribute waste to the waste streara
petitioned for exclusion;
* testing of representative waste samples for total
oil and grease and total organic carbon (TOC)r
• testing of representative waste samples for all of the
Extraction Procedure (EP) toxic raetals listed in Table 1
of 40 CFR 261.24, nickel, and cyanide (both total and
free) for bulk analysis using a complete digestion
procedure» and
• testing of representative waste samples for all of
the EP toxic metals listed in Table I of 40 CPR 261.24,
nickel, and cyanide (both total and free) using an
appropriate leachate procedure.
If, after reviewing this data, the Agency finds that other
toxicants are used at the facility and rasonably may be present
in the waste at significant levels, additional representative
test data may be requested.
Hazardous waste Treatment Facilities
• testing of representative waste samples for total
oil and grease?
0 testing of representative waste samples for the
Appendix VIII toxic constituents or some sub-set
of tnera; and
* testing of representative samples for all the EP
toxic metals listed in Table 1 of 40 CPR 261.24,
nickel, and cyanide (both total and free) using
an appropriate leachate procedure.
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All petitioners have, or will be notified, by letter, of
the* additional information that they will be requested to
provide* In addition, for all petitions referred to the office
of Solid Wast* (OSW) by Region IV, OSH will recommend to the
Region what additional information requirements would be required,
If you have any questions regarding thia matter, please do not
hesitate to call Mr. Katthew Straus of wy staff at FTS-382-4761.
Attachments
WH-562:BSPROATspess382-4761:2/2/84 DISK BS830106
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