The Streamlined RCRA Delisting Petition Process Provides a Viable Approach for Disposal of Hazardous Waste Combustor Residues

 

Melissa L. Douglas and Gerald J. Drake

Compliance Strategies & Solutions, Inc.

 

ABSTRACT


In the past, obtaining an exclusion for hazardous waste combustor residues was an onerous process that required extensive preparations and a lengthy regulatory review and approval process and resulted in few successes.  The EPA issued a 1993 Environmental Fact Sheet that states “Historically, only 15 to 20 percent of submitted delisting petitions have been granted.” and “…it typically takes about two years for a formal petition to make it through EPA’s review process and for a final rule to be published in the Federal Register…”.[1]

 

On March 23, 2000, the United States Environmental Protection Agency (EPA) streamlined the Resource Conservation and Recovery Act (RCRA) delisting petition process by issuing a document titled “EPA RCRA Delisting Program Guidance Manual For The Petitioner”.[2]  This guidance document provides detailed information to assist the petitioner in the preparation of a delisting petition application, and provides the background information necessary to present an understanding of the entire delisting process.  The guidance document also provides a framework for preparing a delisting petition that streamlines the application process.  Successful completion of the delisting petition process results in the petitioned wastes being excluded from RCRA as a listed hazardous waste under 40 Code of Federal Regulations (CFR) Part 261 Subpart D.  This streamlined approach greatly increases the viability to pursue an exclusion for combustion residues, which could result in significant disposal cost savings and minimize future liabilities for facilities with non-variable waste streams.

 

INTRODUCTION


Hazardous waste may be identified as either a characteristic or listed waste.  A characteristic waste includes the D waste codes for ignitablity, corrosivity, reactivity, and toxicity, while the listed wastes carry either a F, K, P, or U waste code. A solid waste may also be designated as a listed hazardous waste through the “mixture rule” or by the “derived from rule”.  A characteristic waste is no longer considered hazardous if the characteristic is removed.  A listed waste can only be considered non-hazardous through the delisting process by receiving an exclusion from the regulations.  The exception to this rule is for a waste that is listed solely on the basis of a characteristic, which has been mixed with a solid waste and the resulting mixture no longer exhibits any characteristics of a hazardous waste in accordance with 40 CFR 261.3.  Nonwastewater mixtures are still subject to the land disposal restrictions of 40 CFR 268 even if they no longer exhibit a characteristic at the point of land disposal.  Thus, for the purpose of combustion residue, the residues resulting from a listed waste must be delisted in order to be excluded from the hazardous waste regulations regarding landfill disposal.

 

The rising cost of hazardous waste disposal, limited Subtitle C landfill disposal space, waste minimization considerations, and future liabilities for the facility are several reasons to investigate the delisting option.  The first delisting guidance was issued in April 1985.[3]  Several facilities received exclusions for their site-specific residues under this guidance document, whom are identified in 40 CFR 261 Appendix IX.  The latest delisting guidance document provides a streamlined approach to the delisting petition process.  This newer guidance also includes a framework to provide simplified step-by-step instructions for completing the delisting petition.[2]

 

To receive an exclusion in accordance with 40 CFR 260.22 (a) and (b), the petitioner must provide a complete application to the Administrator.  This application must include adequate justification that the waste no longer meets any of the criteria for being listed as a hazardous waste and exhibits none of the hazardous waste characteristics.  The Administrator must then determine that the referenced waste does not warrant being retained as a hazardous waste.  When these requirements have been satisfied, the following will occur in accordance with 40 CFR 260.20 (c):


“The Administrator will make a tentative decision to grant or deny a petition and will publish notice of such tentative decision, either in the form of an advance notice of proposed rulemaking, a proposed rule, or a tentative determination to deny the petition, in the Federal Register for written public comment.”

 

APPROACH


The guidance recommends a facility planning to pursue an exclusion for their combustion residue schedule a pre-petition scoping meeting with their state and/or region representative (depending on authority).  The pre-scoping meeting should outline the planned approach of the delisting petition and allow the opportunity for discussion related to the site-specific issues.  A checklist for discussion items during this meeting is included as a guidance appendix.  A state and region contact list for delisting issues is also provided as a guidance appendix. 

 

Nineteen states currently have authorization for delisting.  It is important to note that an exclusion issued by a state is only valid within the issuing state.  Hence, the residues must be disposed within that state for the exclusion to remain valid.  If the residues are to be shipped to, or transported through, other states for disposal, an approved EPA exclusion is required to exempt the waste from regulation as hazardous.

 

There are four types of exclusions that a facility may pursue.  However, most combustion facilities would pursue a standard exclusion for source wastes.  The possible exclusion types are defined as follows:[2]


·         Standard Exclusions for “Source Wastes” – A “source waste” is a waste that is currently generated (typically, as a discharge from a specific point in a process), and will be generated in the future.  These exclusions typically apply only to wastes generated after the effective date of the exclusion.

·         “One-time” Standard Exclusions – “One-time” exclusions are granted for discrete volumes of wastes, typically generated in the past, such as the waste contained in a surface impoundment.

·         Conditional Exclusions – Conditional exclusions are granted when the petitioned waste meets the criteria for delisting, yet the Agency believes the waste may exhibit future variability that may remain a concern.  Under a conditional exclusion, post-exclusion testing requirements are established for the petitioner prior to waste disposal.

·         Upfront Exclusions – These exclusions are granted for waste and/or waste residues that have not yet been generated, but will be generated in the future.

 

The Framework For Delisting Petitions, provided as Appendix A to the guidance document, provides a clear and concise format to proceed with the preparation of a delisting petition.  This framework is outlined as follows:


·         Part 1: Delisting Administrative Information;

·         Part 2: Delisting Waste and Waste Management Information;

·         Part 3: Delisting Process Information;

·         Part 4: Delisting Analytical Plan Development;

·         Part 5: Delisting Sample and Analysis Information; and

·         Part 6: Delisting Groundwater Monitoring Information.

 

The remaining appendices in this guidance also provide useful information when pursuing a delisting petition.  Appendix B provides a checklist of the requested petition information.  Appendix C provides information on how to use a random number table, as well providing an example random number table that may be used to select sampling points without bias of the sampler.  Appendix D provides a pre-petition scoping meeting checklist.  Appendix E provides a list of EPA regional delisting contacts.  Appendix F provides a list of state hazardous waste offices, and lists states that are authorized for delisting.  Appendix G provides a listing of policy issue documents that can be ordered from the EPA’s regional offices.  Appendix H provides region specific delisting guidance.  Appendix I provides an evaluation form to determine the usefulness of the guidance document.  The framework, including appendices, provides an easy to follow approach for the preparation of a delisting petition.  This approach, if followed, presents the necessary information for the state or region to evaluate a complete delisting petition.  The framework requests detailed information for each of the six parts as summarized below.

 

Part 1: Delisting Administrative Information


This section of the framework provides a fill-in-the-blank approach for general facility information and a certification statement that must be signed by the person responsible for the overall operation of the facility or an operational unit.

 

Part 2: Delisting Waste and Waste Management Information


This section of the framework requests information regarding the basis for the waste listing in a multiple-choice format.  This section also requests information on the physical form and volume of the petitioned waste, as well as a history of waste generation and waste management.

 

Part 3: Delisting Process Information


This section of the framework requests information regarding the general operations at the operating facility, as well as the contributing manufacturing processes, waste treatment processes, and waste management operations in a question and response format.  This section also requests information on the process materials and special information relating specifically to upfront exclusions and multiple waste treatment facilities.

 

Part 4: Delisting Analytical Plan Development


This section of the framework requests information regarding the constituents and parameters of concern identified for the petitioned waste based on laboratory analyses and the results of an engineering analysis.  The facility must discern constituents identified by laboratory analysis and those quantitated using mass balance demonstrations.  A discussion must be provided for any other delisting constituents of concern that are not addressed by the delisting petition’s constituents of concern.

 

Part 5: Delisting Sample and Analysis Information


This section of the framework requests information regarding the sampling and analysis plan, quality control procedures, waste sampling information, sampling strategy, sample specific information, and other general information regarding the sampling approach.  Requests for information regarding a multiple waste treatment facility and specific waste analysis information are addressed in this section.  The guidance strongly recommends that the facility and state or region reach an agreement on the sampling and analysis plan prior to beginning the sampling and analysis process.  A minimum of four samples must be obtained over an agreed upon timeframe to demonstrate compliance with the delisting criteria.

 

Part 6: Delisting Groundwater Monitoring Information


This section of the framework requests information regarding groundwater monitoring (either on-site or off-site) for land-based waste management units.  Combustion facilities generally ship their residue offsite to a regulated Subtitle C landfill.  This information may be provided directly by the petitioner or a request for the responsible agency to obtain the groundwater monitoring data can be made.  The groundwater monitoring information should be readily available from the disposal facility.

 

OTHER CONSIDERATIONS


When a facility evaluates the viability of pursuing an exclusion for their combustion residues, site-specific factors related to their circumstance will be considered.  The information listed below provides some generic issues that are applicable to most facilities evaluating this option:

 

Demonstration of a Non-Variable Waste Stream


A facility pursuing a delisting petition must make evident that the waste(s) used to demonstrate compliance with the delisting criteria is the same waste(s) that will continue to be fed to the combustion unit.  Significant changes to the waste stream composition, generating processes, treatment equipment, addition of waste codes, etc., will require a new delisting petition to be granted.

 

Organics and Inorganics in Combustion Residues


Organics are typically not present in the residues of well-operated combustion units.  Facilities with waste streams that contain metals may have more difficulty in demonstrating compliance with the delisting criteria. Generally, when a combustion unit demonstrates a potential inorganic issue, a conditional exclusion is the usually the only option available.  This type of exclusion requires that the residue be tested and cleared prior to shipment as a non-hazardous waste.  A conditional exclusion is not as cost effective due to the ongoing requirements for sampling and analytical activities. 

 

A facility may be allowed the option to use stabilization techniques if inorganics in the combustion residues are present at levels greater than the allowable delisting criteria.  The most common stabilization approach mixes the combustion residue with concrete to prevent the possible leaching of metals when the inorganics are present at levels above the Toxic Characteristic Leaching Procedure (TCLP) limits.  The utilization of this option must be weighed against the savings anticipated for using a Subtitle D landfill rather than a Subtitle C landfill and for potential future liabilities.

 

Clearly, the facilities likely to gain the most cost savings from pursuing an exclusion for their combustion residues are those with clearly defined, non-variable waste streams containing only trace inorganics in the waste streams.

 

Waste Minimization Benefits


Facilities that receive an exclusion for their combustion residues also receive the added benefit of a waste minimization credit for the residues that would otherwise be handled as a hazardous waste.  This is a positive benefit for the facility and regulatory agency alike from a public relations perspective.

 

Future Liabilities


Because the responsibility for hazardous waste is from cradle to grave, obtaining an exclusion for combustion residues provides the generator with a definitive end to future liability associated with the waste.  While it is difficult to establish a distinct monetary value for this benefit, some facilities regard this issue as the primary reason to pursue an exclusion.

 

Shipping and Disposal


The costs and liabilities associated with shipping and disposal of waste characterized only as a solid waste rather than a hazardous waste are significant.  Disposal costs are substantially more at a Subtitle C landfill than a Subtitle D landfill.  Because Subtitle D landfills are generally more abundant than Subtitle C landfills and are generally closer in proximity to the facility, transportation and disposal costs are considerably less expensive.  Additionally, non-hazardous waste does not require special shipping requirements, so the transportation options are also more plentiful and less expensive.

 

CONCLUSIONS


Before a determination to proceed with the preparation of a delisting petition is made, a facility should evaluate the many factors associated with obtaining an exclusion to determine if it is a viable option for their combustion residues.  Some of these considerations include:


·         Total volume of waste that will be impacted if the exclusion is approved;

·         Exclusion type (standard or conditional);

·         Sampling and analytical costs to pursue the exclusion;

·         Determination of non-variable waste stream;

·         Determination of inorganics at levels higher than the TCLP limits;

·         Waste minimization benefits

·         Reduction of future liability; and

·         Total shipping and disposal costs of the current volume as both a hazardous and a non-hazardous waste.

 

The delisting petition framework included in the March 2000 guidance provides a straight- forward approach that addresses the necessary information to complete a delisting petition.  This document enables facilities to pursue an exclusion with a better understanding of the overall requirements and provides the framework to complete a delisting petition.

 

REFERENCES


1.   U.S. EPA, “EPA Environmental Fact Sheet: Delisting Petitions and the Petition Review Process”, EPA/530-F-

       93-0, Spring 1993.

2.   U.S. EPA, “EPA RCRA Delisting Program Guidance Manual For The Petitioner”, March 23, 2000.

3.   U.S. EPA, “Petition to Delist Hazardous Wastes - A Guidance Manual”, EPA/PB85-194488, April 1985.