United States Solid Waste and EPA530-R-97-063
Environmental Protection Emergency Response PB98-108 186
Agency (5305W) November 1997
RCRA, Superfund & EPCRA
Hotline Training Module
Introduction to:
Petitions, Delistings, and
Variances
Updated July 1997
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DISCLAIMER
This document was developed by Booz-Allen & Hamilton Inc. under contract 68-WO-0039 to EPA. It is
intended to be used as a training tool for Hotline specialists and does not represent a statement of EPA
policy.
The information in this document is not by any means a complete representation of EPA's regulations or
policies. This document is used only in the capacity of the Hotline training and is not used as a reference
tool on Hotline calls. The Hotline revises and updates this document as regulatory program areas change.
The information in this document may not necessarily reflect the current position of the Agency. This
document is not intended and cannot be relied upon to create any rights, substantive or procedural,
enforceable by any party in litigation with the United States.
RCRA, Superfund & EPCRA Hotline Phone Numbers:
National toll-free (outside of DC area) (800) 424-9346
Local number (within DC area) (703) 412-9810
National toll-free for the hearing impaired (TDD) (800) 553-7672
The Hotline is open from 9 am to 6 pm Eastern Time,
Monday through Friday, except for federal holidays.
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PETITIONS, DELISTINGS, AND VARIANCES
CONTENTS
1. Introduction 1
2. Regulatory Summary 3
2.1 General Petitions 3
2.2 Equivalent Testing or Analytical Methods 3
2.3 Delisting Petitions 5
2.4 Variances 13
2.5 Summary 14
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Petitions, Delistings, and Variances -1
1. INTRODUCTION
This module reviews the regulations found in 40 CFR Part 260, Subpart C,
governing rulemaking petitions. A person can petition EPA to change almost any
provision of the hazardous waste regulations. EPA is obligated to examine and
address the petitions, but an actual change in the regulations is not common. Most
successful petitions seek to add an analytical method or to delist a waste from a
particular facility. Individuals may also apply for variances from classification as a
solid waste or for classification as a boiler. The requirements for variances are also
outlined in this module.
After finishing this module, you will be able to define petitions and variances and
distinguish between the different types. You will also be able to explain how
petitions and variances are used, by whom, and for what purposes. Specifically, you
will be able to:
• Specify who may petition EPA to modify or revoke any provision in 40
CFR Parts 260 through 265 and 268, and what may be changed through the
petition process
• List the different components of a petition, and the steps in the
petitioning, review, and decision processes
• Specify the applicability of "equivalent methods" and state the
information needed for this type of petition
• Describe the process in petitioning for a new or equivalent method
• Specify the purpose of delisting, what can be delisted, and the implications
of a delisting petition
• Outline the delisting procedures and provide citations for them
• Cite the Federal Registers that describe the EPA's Composite Model for
Landfills (EPACML) which EPA currently uses as a tool in evaluating
delisting petitions
• Identify the types of variances granted.
Use these objectives to check your understanding of the topic when you complete
the module.
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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2 - Petitions, Delistings, and Variances
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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Petitions, Delistings, and Variances - 3
2. REGULATORY SUMMARY
The following is a summary of the regulations governing the process of requesting
and awarding petitions, delistings, and variances. These regulations are found in 40
CFR Part 260, Subpart C. Using the procedures in §260.20, anyone may petition EPA
to modify or revoke any provision of 40 CFR Parts 260-266 and 268. For example, a
person may petition to delist a listed waste from Subpart D of Part 261 (the F, K, P,
and U lists). The petitioner must follow the general requirements that apply to all
rulemaking petitions in §260.20, as well as the specific requirements for delisting
petitions in §260.22. Other types of petitions include petitions for obtaining a
variance from classification as a solid waste (§§260.30, 260.31, and 260.33) and
petitions to be classified as a boiler (§§260.32 and 260.33).
2.1 GENERAL PETITIONS
Section 7004 of RCRA states that any person may petition EPA for the promulgation,
amendment, or repeal of any regulation under RCRA. EPA promulgated
regulations pursuant to §7004 that outline the procedures for filing this type of
petition. According to §260.20, each petition must include:
• The petitioner's name and address
• A statement of the petitioner's interest in the proposed action
• A description of the proposed action
• A statement of the need and justification for the proposed action
(including any supporting tests, studies, or other information).
Upon submission, EPA reviews the petition and publishes a tentative decision in
the Federal Register to grant or deny it. After a public comment period, EPA
evaluates all timely comments and publishes the final decision in the Federal
Register. Figure 1 illustrates the steps of the petition process.
2.2 EQUIVALENT TESTING OR ANALYTICAL METHODS
Anyone may petition to add a testing or analytical method to Parts 261, 264, or 265
(§260.21). This provision is used in cases where the regulations prescribe the use of a
specific test method (e.g., to determine if a waste exhibits the characteristic of
corrosivity), and a member of the regulated community wants to use an alternative
test method that is less costly or more accurate. The petitioner must demonstrate
that the method he or she is proposing is equivalent or superior to the existing
method in terms of its sensitivity, accuracy, and precision. The content of the
petition and process for its approval are outlined below.
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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4 - Petitions, Delistings, and Variances
Figure 1
PETITION REVIEW PROCESS
Letter Acknowledgm
Petition Receipt Sent
Notify Region of
Petition Receipt
Petition Receipt/
Reviewer Assigned
Petition Completeness
Review
etition Responds
Within Time Limit
Petition
Seriously
Deficient?
Petition Dismissed
Preliminary Technical
Assessment: Can
Petition Be Denied?
Denial/Withdrawal
Option Offered
Six-Month
Time Limit
To Respond
Additional
Information
Required1;
Petition
Withdrawn?
Letter Sent Requesting
Additional Information
Yes
Recommendation Made to Grant or Deny Petition
and Preparation of Proposed Decision for Federal
Register
Preparation of Final Notice
and Associated
Documentation
Federal Register Notice
Publication
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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Petitions, Delistings, and Variances - 5
COMPONENTS OF THE PETITION
A petition to add a testing or analytical method must include all information
required by §260.20 as well as the following:
• A full description of the proposed method
• A description of the types of wastes or waste matrices for which the
proposed method may be used
• The results obtained from using the proposed methods compared to the
results from the relevant or corresponding approved methods
• An assessment of any factors which may interfere with, or limit the use of,
the proposed method
• A description of quality control methods necessary to ensure sensitivity,
accuracy, and precision of the proposed method
• Any additional information which may be reasonably required to evaluate
the method as requested by the Administrator.
THE APPROVAL PROCESS
After EPA receives a specific petition, it must be evaluated to determine if it is valid
and should be granted. EPA must then officially approve any test method as
equivalent before it can be used when the regulations require use of a specific test
method. The steps in the approval process are the same as those in §§260.20(c), (d),
and (e) and are reflected in Figure 1. If EPA amends the regulations to permit the
use of a new test method, the method will be incorporated into Test Methods for
Evaluating Solid Waste: Physical / Chemical Methods, also known as SW-846.
2.3 DELISTING PETITIONS
EPA recognizes that certain listed wastes generated at a facility may not meet the
criteria for which they were originally listed. This could occur, for example, when a
treatment process removes, destroys, or immobilizes hazardous constituents that
were present in the listed waste. Because a waste listed in Part 261, Subpart D, may
not always contain the hazardous constituents for which it was listed, one of the
specific petitions that may be submitted to EPA is a delisting petition. This is
designed for persons who want to exclude or "delist" a listed hazardous waste
generated at a particular facility from §§261.31-33. In general, the effect of granting a
delisting petition is to allow management of the excluded waste as nonhazardous
(i.e., excluded from regulation under Subtitle C). A delisted waste, however, must
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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) - Petitions, Delistings, and Variances
still be managed in accordance with applicable federal, state, and local regulations for
municipal or industrial solid waste (i.e., RCRA Subtitle D).
This section discusses the regulatory basis for and intent of delisting, the regulatory
impact of a delisting petition, the elements of evaluation, and petition information.
This section also explains what criteria must be met for approval of delisting
petitions, the types of exclusions that are granted, the conditions that might apply,
the process EPA uses to evaluate a petition, and the information that must be
submitted.
REGULATORY BASIS AND INTENT OF DELISTING
Under the RCRA regulations, there are two ways solid wastes can be classified as
hazardous: (1) solid wastes that exhibit a characteristic of a hazardous waste
(ignitability, corrosivity, reactivity, or toxicity) identified in §§261.21-261.24; and (2)
solid waste that are specifically listed ( F, K, P, U) in §§261.31-261.33. Delisting
petitions, as the name implies, are for listed wastes. To be eligible for an exclusion
under a delisting petition, a listed waste must not:
• Meet the criteria for which it was listed (§§260.22(c)(l), (d)(l), and (e)(l))
• Exhibit any of the hazardous waste characteristics (§§260.22(c)(l), (d)(3), and
• Be hazardous for any other reason (e.g., contain additional constituents
that could cause the waste to pose a threat to human health and
environment) (§§260.22(c)(2), (d)(2), and (e)(2)).
A listed waste that also exhibits a characteristic of a hazardous waste is not eligible
for delisting under this provision. For example, if a wastewater treatment sludge
from electroplating operations (F006) exhibits the toxicity characteristic for lead, it
would not be eligible for a delisting petition.
The delisting regulations are intended to ease the regulatory burden for listed wastes
that are captured by the broad listing description but are not actually hazardous. A
waste generated at a specific facility may meet a listing description even though the
process uses different raw materials than EPA assumed were used when listing the
waste, so the waste may not contain the contaminants for which it was listed.
Delistings are also used for listed wastes that have been treated and no longer pose a
threat to human health or the environment.
REGULATORY IMPACT OF A DELISTING DECISION
The intent behind delisting is to allow the delisted waste to be managed as a
nonhazardous waste. Submitting a petition does not automatically exempt a waste
from RCRA Subtitle C regulation. Until a delisting petition becomes effective, the
waste is still considered a listed waste and is subject to all applicable regulations. If
the petition is denied, the waste will remain fully regulated under Subtitle C. If the
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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Petitions, Delistings, and Variances - 7
petition is granted, the waste would receive one of three types of exclusions: a
standard exclusion, a conditional exclusion, or an upfront exclusion.
Standard Exclusions
One type of exclusion or delisting granted under §260.22 is known as a standard
exclusion. Typically, once a listed waste has been granted a standard exclusion, no
further testing of the waste is required, except as necessary to check for characteristics.
There are two categories of standard exclusions:
• A standard exclusion for "source waste" that is currently generated and
will be generated in the future (these exclusions generally will apply only
to waste generated after the effective date of the exclusion)
• A "one-time" standard exclusion may be granted for discrete volumes of
waste, typically generated in the past, such as waste contained in a surface
impoundment.
Conditional Exclusions
Another type of exclusion that may be granted through the delisting process is a
conditional exclusion, in which EPA may approve a delisting petition contingent
upon the waste meeting certain requirements. If the waste is highly variable in
composition, EPA will impose certain testing requirements that the petitioner must
meet before disposal. Such exclusions typically establish delisting levels for key
waste constituents. Only those batches of waste that pass the testing requirements
are considered delisted; waste which fails testing remains subject to Subtitle C
regulation.
Upfront Exclusions
The third type of exclusion is known as an upfront exclusion. Facilities can petition
to delist waste that has not yet been generated (e.g., residue that will be generated
from a planned incinerator or other treatment process). To support the petition,
petitioners may submit bench- or pilot-scale data, characterization data for the
untreated waste, and detailed descriptions of the treatment processes. Once the full-
scale treatment process is on-line, the petitioner then conducts extensive testing to
verify that the system is operating as described in the petition and that the delisting
levels established for the petitioned waste are met. An upfront delisting is therefore
a special form of a conditional exclusion.
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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8 - Petitions, Delistings, and Variances
ELEMENTS OF EVALUATION
As with petitions previously discussed, there are four major steps in the delisting
petition evaluation process: (1) submitting the petition; (2) completeness review by
EPA; (3) technical review; and (4) promulgation of the decision. The entire review
process is outlined in Figure 1. Delisting is a formal rulemaking process and
typically takes about two years. The evaluation is subject to review within EPA and,
when published as a proposed rule, public comment is requested prior to EPA's final
decision. EPA suggests that petitioners submit sampling and analysis plans
(discussed later in this section) for review prior to committing time and resources to
the preparation of a formal petition preparation.
Submitting the Petition
Anyone may submit a petition to delist a waste generated at a particular facility.
Separate petitions must be submitted for wastes generated at different facilities, even
if the contributing processes and raw materials are similar. When petitioning to
delist a waste, a petitioner should consider whether the petition should be
submitted to the state, EPA Region, or both. Delisting petitions are submitted to
EPA Regional Administrator unless the state is specifically authorized for delisting.
If a waste is managed in a state that is authorized for delisting, the petition should be
submitted to the authorized state rather than the EPA Region. If the waste is
transported to another state, a delisting granted by the state in which it was
generated does not exempt the waste from regulation under Subtitle C in the state to
which it is shipped. In this case a petitioner would need to submit a petition to both
the authorized state for management of the waste in the state and the EPA Region
(or the destination state if it is authorized for delisting) for management of the waste
in the destination state. EPA recommends that petitioners contact relevant state and
EPA regional offices to determine where the petition should be submitted. After
EPA receives a petition, it is assigned a petition log number for administrative
purposes. The petitioner will be notified by mail to acknowledge EPA's receipt of
the petition.
Completeness Review by EPA
When a petition is submitted, EPA will first confirm whether the petitioned waste is
listed as a hazardous waste, and therefore eligible for an exclusion. If the waste is
listed, EPA then conducts a completeness review to determine whether the petition
is seriously deficient. Generally, a seriously deficient petition lacks the necessary
information and the additional information would take more than six months to
collect (53 FR 6822; March 3, 1988). If a petition is seriously deficient it may be
immediately dismissed. If the petition is not seriously deficient EPA will determine
whether any additional information is necessary to conduct a technical review. If
more information is needed EPA will send a letter requesting the information. A
petitioner will have up to six months to submit the additional information. EPA
may establish a shorter time frame if the information can be obtained and submitted
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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Petitions, Delistings, and Variances - 9
in less than six months. If the additional information requested is not submitted
within the specified time frame, the petition may be dismissed. EPA recommends
that a petitioner submit the additional information as soon as it is available. EPA
performs a technical review of all submitted information once a petition is
complete.
Technical Review
In the technical review stage, EPA first determines whether the waste meets all of
the required criteria. Specifically, the waste must not:
• Meet the criteria for which it was listed
• Exhibit any of the hazardous waste characteristics
• Be hazardous for any other reason (e.g., contain additional constituents
that could cause the waste to pose a threat to human health and the
environment).
The petition is then evaluated on a waste-specific basis. Because a delisted waste is
not subject to hazardous waste regulation and EPA is unable to control further
management of the waste, EPA feels it is generally inappropriate to consider
extensive factors pertaining to how a delisted waste will be managed or disposed.
In the technical review stage EPA will often use, as appropriate, fate and transport
models that rely on waste-specific information to predict the potential
environmental impact of the petitioned waste. EPA currently uses EPA's
Composite Model for Landfills (EPACML), as appropriate, in the evaluation of
delisting petitions. The EPACML is used as a tool for predicting the transport of
hazardous constituents through soil and groundwater. Specifically, EPA uses
annual waste volume and waste testing data (e.g., the Toxicity Characteristic
Leaching Procedure (TCLP)) as inputs to the EPACML to project the concentration of
hazardous constituents that could migrate to a downgradient drinking water well.
These projected concentrations may then be compared to health-based levels used in
delisting (e.g., Maximum Contaminant Levels (MCLs)) to determine if the
constituents are of concern. For more information on the model and its use in
delisting, petitioners should be referred to the July 18, 1991, Federal Register (56 FR
32993) for background information. Before the EPACML was developed, EPA used
the Vertical and Horizontal Spread (VHS) model and Organic Leaching Model
(OLM), as appropriate, as tools for evaluating delisting petitions.
In some cases, EPA also will consider groundwater monitoring data during the
technical evaluation (54 FR 41930; October 12, 1989). In cases where a waste was
managed in a land-based unit, EPA will assess data collected from monitoring the
uppermost aquifer beneath the facility to determine whether the petitioned waste has
adversely impacted the environment.
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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10 - Petitions, Delistings, and Variances
Once the technical review phase is completed EPA will decide whether to grant or
deny the petition. If EPA decides that the waste is still hazardous and intends to deny
the petition, the petitioner will be sent a letter notifying him or her of EPA's intent.
In this letter, EPA will offer the petitioner the option to withdraw the petition to
avoid a negative finding in the Federal Register. If the petitioner refuses to withdraw
the petition, or EPA decides to grant the petition, the review process moves on to the
promulgation of decision stage.
Promulgation of Decision
EPA must publish decisions on delisting petitions in the Federal Register. Upon
completion of the technical review, a draft Federal Register proposal is reviewed
internally. The proposed rule is then published in the Federal Register, and a
complete copy of the petition and the supporting information is placed in the RCRA
docket. The review period provides opportunity for public comment on the
proposed decision (usually 45 days). Once all timely public comments on the
proposed rule are addressed, a final notice is published in the Federal Register. Final
delisting decisions become effective on the date of publication in the Federal
Register.
DELISTING PETITION INFORMATION
The information that must be submitted for delisting petitions is found in §§260.20
and 260.22. Section 260.20 contains the general petition information that is required of
any regulatory petition, and §260.22 contains the information specifically required of a
delisting petition. EPA may request any other additional information reasonably
required to evaluate a petition (§260.22(j)). This section of the module breaks down
the specific components of a delisting petition and gives a basic outline of each part.
More specifics on each component can be found in EPA's Petitions to Delist Hazardous
Waste: A Guidance Manual, which was updated in March 1993.
Administrative Information
The basic administrative information requirements are found in §§260.20 and
260.22. This administrative information should include the following:
• Name and address of the individual or firm submitting the petition
(§260.20(b)(l))
• Contact person for additional information that may be required (this is not a
regulatory requirement, but EPA recommends that this information be
provided)
• Name and address of the facility where the waste is generated, facility EPA
identification number, and the location of the waste if it is different than the
facility (§260.22(i)(4))
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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Petitions, Delistings, and Variances -11
• General description of the requested delisting action (§260.20(b)(3))
• Statement of interest in the proposed delisting action (§260.20(b)(2))/ and a
statement of the need and justification for the proposed action (§260.20(b)(4))
• Certification statement as required in §260.22(i)(12).
Waste and Waste Management Information
Petitioners must provide specific information about their waste and the history of
how the waste was managed in the past. The petition should describe the basis for the
hazardous waste listing, the EPA hazardous waste number found in §§261.31-261.33,
and the listing description. This section should indicate whether the waste was
generated in the past, is presently being generated, or if the waste will be generated in
the future. EPA also requires that a petitioner estimate the amount of waste to be
excluded. This estimate should include the average amount of waste generated on a
monthly and yearly basis, an estimate of the maximum monthly and yearly
generation, and the waste management history (§260.22(i)(6)).
Process and Waste Management Information
The petitioner must provide information on all processes and raw materials
contributing to the petitioned waste (§260.22(i)(5)). This information enables EPA to
determine whether the petitioned waste was characterized with respect to all
delisting constituents of concern potentially present due to the contributing
processes. The two components of this section are the general information
requirements and the special information required for certain situations. The
general information requirement includes a description of the general operations,
the manufacturing processes, waste treatment processes, process materials, and
waste management operations. The special information requirements are for those
petitioners requesting an upfront delisting for a waste that is not currently being
generated, or for exclusion of a waste that is generated by a facility that treats
multiple wastestreams (a multiple waste treatment facility).
Analytical Plan Development
In preparing an analytical plan, the petitioner should develop a complete list of the
hazardous constituents of concern in the waste. The list should be drawn from the
full universe of Part 261, Appendix VIII, constituents, as well as the following
constituents not found in Appendix VIII: acetone, ethylbenzene, isophorone, 4-
methyl-2-pentanone, styrene, and xylenes (total). These constituents are known as
the delisting constituents of concern. The list should also address any constituents
of concern for special waste categories (i.e., petroleum industry wastes, stabilized
wastes, and dioxin wastes). A complete engineering analysis should be conducted to
determine if there are other constituents of concern in the waste (§§260.22(c), (d),
and (e)). The petition should demonstrate that these delisting constituents of
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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12 - Petitions, Delistings, and Variances
concern are not present in the waste at hazardous levels based on analytical data,
mass balance demonstrations, or other appropriate information. This list of
constituents of concern can be submitted to EPA (in conjunction with the sampling
plan) for a completeness evaluation prior to sampling, analysis, and final petition
preparation.
Sampling Plan Development
Data presented in a delisting petition must be based on an analysis of a
representative sample of the waste. The analytical data collected must be from a
sufficient number of representative samples, but in no case less than four, collected
over a period of time sufficient to represent the variability and uniformity of the
petitioned waste (§260.22(h)). Guidance on sampling plan development may be
found in EPA publications, or other standard reference sources, such as documents
published by the American Society for Testing and Materials (ASTM). The sampling
plan, as stated above, may be submitted to EPA for evaluation prior to sampling.
Waste Sampling and Analysis Information
In accordance with §§260.22(i)(8)-(ll), the petitioner must collect analytical data on
the makeup of the waste. The petitioner should submit a comprehensive plan of
how samples were actually taken. A formal written sampling and analysis plan is
not a necessary part of a delisting petition. Nevertheless, EPA encourages
petitioners to submit a draft plan for review before sample collection and submittal
of a formal delisting petition.
The sampling and analysis data are analyzed by EPA to ensure proper procedures
and methods have been followed. The testing protocols should follow the
procedures in SW-846. More detail on the criteria involved in this review process is
found in the updated version of EPA's Petitions to Delist Hazardous Waste: A
Guidance Manual.
Groundwater Monitoring Information
In general, groundwater monitoring information should be submitted if the waste is
currently managed, or has ever been managed, in a land-based unit for which a
groundwater monitoring system is required under 40 CFR Parts 264 or 265, or other
federal, state, or local requirements; or if such information is otherwise collected for
the unit. EPA's authority to consider groundwater monitoring data in evaluating
delisting petitions is clarified in the October 12, 1989, Federal Register (54 FR 41930).
Groundwater data can help characterize the actual impact of the waste and
compliment the predictions from the fate and transport models used as tools in the
evaluation of a petition. For example, groundwater monitoring data from a unit
containing the waste may indicate that the waste has contributed to groundwater
contamination. This might suggest that the waste poses a hazard at one location,
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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Petitions, Delistings, and Variances -13
and would potentially pose a hazard if disposed of at other locations. The petitioner
may submit groundwater monitoring information and data, or a reference to
previously submitted data. EPA usually would not require that groundwater data be
submitted if the waste was never managed in a land-based unit.
2.4 VARIANCES
Sections 260.30-260.33 contain the procedures which allow the Regional Administrator
to grant variances for certain materials and devices. On a case-by-case basis, the
following recyclable materials may be granted a variance from classification as a solid
waste:
• Materials that are accumulated speculatively without sufficient amounts being
reclaimed (§§260.30(a) and 260.31(a))
• Materials that are reclaimed and then reused within the original primary
production in which they were generated (§§260.30(b) and 260.31(b))
• Materials that have been reclaimed but must be reclaimed further before the
materials are completely recovered (§§260.30(c) and 260.31(c)).
EPA believes that the length of time materials are accumulated before being recycled
is an important indicator of whether or not the materials are wastes. Under
§261.2(c)(4)/ materials that are accumulated speculatively (defined in §261.1(c)(8)) are
normally considered solid wastes (see the module entitled Definition of Solid Waste
and Hazardous Waste Recycling for further discussion of speculative accumulation).
A case-by-case variance (§§260.30(a) and 260.31 (a)) can be granted by the Regional
Administrator allowing recyclable materials that are accumulated speculatively to be
excluded from classification as a solid waste and therefore as a hazardous waste. The
burden of proof, however, lies with the accumulator to show that, despite an
increase in the storage time and volume, sufficient amounts of the materials are
being recycled.
Under §261.2(e)(l)(i), materials that are reclaimed and then reused are also
considered solid wastes. EPA, nevertheless, believes that there may be some
situations where a material can be reclaimed before being reused and not be a solid
waste. This type of recycling can be considered an adjunct to the original primary
process; therefore, a case-by-case variance (§§260. 30(b) and 260.31(b)) can be granted
by the Regional Administrator allowing recyclable materials that are reclaimed prior
to reuse to be excluded from classification as a solid waste.
Under §261.2(e)(l)(iii), materials that are reclaimed and need to be further reclaimed
are also considered solid wastes. In some situations, more than one reclamation
step may be necessary before a usable end-product of the reclamation process is
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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14 - Petitions, Delistings, and Variances
recovered. A case-by-case variance (§§260.30(c) and 260.31(c)) allows recyclable
materials that are reclaimed, but must be reclaimed further, to be excluded from
classification as a solid waste, provided that the intermediate material is more
commodity-like than waste-like even though it has not been completely recovered.
With all three variances from classification as a solid waste, EPA is encouraging
recycling by providing an avenue for a reduction in the amount of regulation.
Variances may also be granted for certain enclosed devices which use controlled flame
combustion. This variance allows certain devices burning used oil for energy recovery
or hazardous waste as fuel to be classified as boilers even though they do not meet the
technical definition of "boiler" in §260.10 (§260.32). Originally, classification as a boiler
meant very few regulations for the combustion unit because hazardous waste boilers
were exempt from regulation as recycling units. Once EPA established permitting
standards for hazardous waste boilers and industrial furnaces, the implications of being
classified as a boiler were not as significant for burners of hazardous waste fuel. A
variance to be classified as a boiler is still relevant to owners or operators of
nonindustrial boilers who wish to burn off-specification used oil for energy recovery.
A detailed discussion of boilers and industrial furnaces (BIFs) can be found in the
modules "Used Oil" and "Boilers and Industrial Furnaces."
Case-by-case variances can also be used by EPA to increase the regulation of some
hazardous waste recycling activities. Normally, precious metals that are reclaimed
(§261.6(a)(2)(iv)) are only regulated under Part 266, Subpart F. If these recyclable
materials are not being accumulated or stored in a manner that protects human health
and the environment, the Regional Administrator, in accordance with §§260.40-260.41,
may decide on a case-by-case basis that the materials should be regulated more
stringently under §§261.6(b) and (c). This would subject the recycler to applicable
generator, transporter, and general TSDF standards. These regulations (§§260.30-260.42)
were published in the January 4, 1985, Federal Register (50 FR 614).
2.5 SUMMARY
Anyone may petition EPA to modify or revoke any provision of 40 CFR Parts 260-265
and 268. Petitioners may request that the Regional Administrator grant variances for
certain materials from classification as solid wastes or for devices to be classified as
boilers. The most common petitions are for allowing the use of equivalent test
methods and for delisting hazardous wastes The regulations covering the various
types of petitions and variances, as well as the petition process itself, are found in Part
260, Subpart C.
The information in this document is not by any means a complete representation of EPA's regulations or policies, but is
an introduction used for Hotline training purposes.
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