Section 668.44. Variance from a treatment standard.

 

(1)  Based on a petition filed by a generator or treater of hazardous waste, the EPA administrator may approve a variance from an applicable treatment standard if any of the following are met:

(a) 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 shall 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.

(b) 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 the treatment is technically possible. To show that this is the case, the petitioner shall demonstrate one of the following:

1. 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).

2. For remediation waste only, treatment to the specified level or by the specified method is environmentally inappropriate because it would likely discourage aggressive remediation.

(2)  Each petition shall be submitted to the EPA administrator according to the procedures in 40 CFR 260.20 .

(6)  A generator, treatment facility or disposal facility that is managing a waste covered by a variance from the treatment standards shall comply with the waste analysis requirements for restricted wastes found under s. NR 668.07 .

(7)  During the petition review process, the applicant is required to comply with all restrictions on land disposal under this chapter once the effective date for the waste has been reached.

(8)  Based on a petition filed by a generator or treater of hazardous waste, the EPA administrator may approve a site-specific variance from an applicable treatment standard if one of the following conditions is met:

(a) 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 shall 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.

(b) 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 the treatment is technically possible. To show that this is the case, the petitioner shall demonstrate one of the following:

1. Treatment to the specified level or by the specified method is technically inappropriate, for example, the treatment would result in combustion of large amounts of mildly contaminated environmental media where the treatment standard is not based on combustion of the media.

2. For remediation waste only, treatment to the specified level or by the specified method is environmentally inappropriate because it would likely discourage aggressive remediation.

(c) 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 lower than the concentrations necessary to minimize short-term and long-term threats to human health and the environment. Treatment variances approved under this paragraph shall meet all of the following conditions:

1. At a minimum, treatment variances shall impose alternative land disposal restriction treatment standards that, using a reasonable maximum exposure scenario, meet all of the following conditions:

a. For carcinogens, the treatment variances shall 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 .

b. For constituents with non-carcinogenic effects, the treatment variances shall achieve constituent concentrations that an individual could be exposed to on a daily basis without appreciable risk of deleterious effect during a lifetime.

2. The treatment variances may not consider post-land-disposal controls.

(d) 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 lower than natural background concentrations at the site where the contaminated soil will be land disposed.

(e) Public notice and a reasonable opportunity for public comment shall be provided before granting or denying a petition.

(9)  Each application for a site-specific variance from a treatment standard shall include the information in s. NR 660.20 .

(10)  After receiving an application for a site-specific variance from a treatment standard, the EPA administrator may request any additional information or samples which may be required to evaluate the application.

(11)  A generator, treatment facility or disposal facility that is managing a waste covered by a site-specific variance from a treatment standard shall comply with the waste analysis requirements for restricted wastes found in s. NR 668.07 .

(12)  During the application review process, the applicant for a site-specific variance shall comply with all restrictions on land disposal in this chapter once the effective date for the waste has been reached.

(13)  For all variances, the petitioner shall 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, the EPA administrator 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 ss. NR 666.020 to 666.023 .

CR 05-032 : cr. Register July 2006 No. 607 , eff. 8-1-06.