268.44—Variance from a treatment standard.

(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.

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 there 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:

(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:

Table—Wastes Excluded From the Treatment Standards Under § 268.40

Facility name 1 and address	Waste code	See also	Regulated hazardous constituent	Wastewaters		Nonwastewaters
Facility name 1 and address	Waste code	See also	Regulated hazardous constituent	Concentration (mg/l)	Notes	Concentration (mg/kg)	Notes
Craftsman Plating and Tinning, Corp., Chicago, IL	F006	Table CCWE in 268.40	Cyanides (Total)	1.2	(2)	1800	(4)
			Cyanides (Amenable)	.86	(2 and 3)	30	(4)
			Cadmium	1.6		NA
			Chromium	.32		NA
			Lead	.040		NA
			Nickel	.44		NA
CWM Chemical Services, LLC, Model City, New York	K0889	Standards under § 268.40	Arsenic	1.4	NA	5.0 mg/L TCLP	NA
DuPont Environmental Treatment Chambers Works, Deepwater, NJ	F039	Standards under § 268.40	1,3-phenylenediamine 1,3-PDA	NA	NA	CMBST; CHOXD fb BIODG or CARBN; or BIODG fb CARBN	(13)
Code of Federal Regulations 257
Dupont Environmental Treatment—Chambers Works Wastewater Treatment Plant, Deepwater, NJ 8	K088	Standards under § 268.40	Arsenic	1.4	NA	5.0 mg/L TCLP	NA
EnergySolutions LLC, Clive, UT (14)	P- and U-listed hazardous waste requiring CMBST	Standards under 268.40	NA	NA	NA	CMBST or VTD	NA
Guardian Industries Jefferson Hills, PA (6), (11), and (12)	D010 Standards under 268.40	Selenium	NA	NA	11 mg/L TCLP	NA
Owens Brockway Glass Container Company, Vernon CA 6,7	D010	Standards under § 268.40	Selenium	NA	NA	51 mg/L TCLP	NA.
Northwestern Plating Works, Inc., Chicago, IL	F006	Table CCWE in 268.40	Cyanides (Total)	1.2	(2 and 3)	970	(4)
			Cyanides (Amenable)	.86	(2)	30	(4)
			Cadmium	1.6		NA
			Chromium	.32		NA
			Lead	.040		NA
			Nickel	.44		NA
St. Gobain Containers, El Monte, CA 5,7	D010	Standards under § 268.40	Selenium	NA	NA	25 mg/L TCLP	NA.
U.S. Ecology Idaho, Incorporated, Grandview, Idaho	K08810	Standards under § 268.40	Arsenic	1.4	NA	5.0 mg/L TCLP	NA
(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 9010C or 9012B, as incorporated by reference in § 260.11 of this chapter, 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 electrostatic precipitator dust generated during glass manufacturing operations.
(7)—D010 wastes generated by these two facilities must be treated by Chemical Waste Management, Inc. at their Kettleman Hills facility in Kettleman City, California.
(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.
(11)—D010 wastes generated by this facility may be treated by Heritage Environmental Services, LLC at their RCRA permitted treatment facility in Indianapolis, Indiana or by Chemical Waste Management, Chemical Services Inc. at their RCRA permitted treatment facility in Model City, New York.
(12)—D010 waste generated by this facility may be treated by Chemical Waste Management, Chemical Services, LLC. at their treatment facility in Model City, New York.
(13)—This treatment standard applies to 1,3-PDA in biosludge from treatment of F039.
(14)—This site-specific treatment variance applies only to solid treatment residue resulting from the vacuum thermal desorption (VTD) of P- and U-listed hazardous waste containing radioactive contamination (“mixed waste”) at the EnergySolutions' LLC facility in Clive, Utah that otherwise requires CMBST as the LDR treatment standard. Once the P- and U-listed mixed waste are treated using VTD, the solid treatment residue can be land disposed at EnergySolutions' onsite RCRA permitted mixed waste landfill without further treatment. This treatment variance is conditioned on EnergySolutions complying with a Waste Family Demonstration Testing Plan specifically addressing the treatment of these P- and U-listed wastes, with this plan being implemented through a RCRA Part B permit modification for the VTD unit.
Note: NA means Not Applicable.

Code of Federal Regulations

[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; 69 FR 6575, Feb. 11, 2004; 69 FR 67653, Nov. 19, 2004; 70 FR 34589, June 14, 2005; 70 FR 44511, Aug. 3, 2005; 71 FR 6212, Feb. 7, 2006; 71 FR 40279, July 14, 2006; 73 FR 27767, May 14, 2008]