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 ------- 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). ------- 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. ------- 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. ------- 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. ------- 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 ------- |