R315-260-22. Petitions to Amend Rule to Exclude a Waste Produced at a Particular Facility

  (a) Any person seeking to exclude a waste at a particular generating facility from the lists in Sections R315-261-30 through 35 may petition for a regulatory amendment under Section R315-260-22 and Section R315-260-20. To be successful:

  (1) The petitioner shall demonstrate to the satisfaction of the Board that the waste produced by a particular generating facility does not meet any of the criteria under which the waste was listed as a hazardous or an acutely hazardous waste; and

  (2) Based on a complete application, the Board shall determine, where it has a reasonable basis to believe that factors, including additional constituents, other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded, however, still may be a hazardous waste by operation of Sections 261-20 through 24.

  (b) The procedures in Sections R315-260-22 and R315-260-20 may also be used to petition the Board for a regulatory amendment to exclude from Subsections R315-261-3(a)(2)(ii) or (c), a waste which is described in Subsections R315-261-3(a)(2)(ii) or (c) and is either a waste listed Sections R315-261-30 through 35 or is derived from a waste listed in Sections R315-261-30 through 35. This exclusion may only be issued for a particular generating, storage, treatment, or disposal facility. The petitioner shall make the same demonstration as required by Subsection R315-260-22(a). Where the waste is a mixture of solid waste and one or more listed hazardous wastes or is derived from one or more hazardous wastes, his demonstration shall be made with respect to the waste mixture as a whole; analyses shall be conducted for not only those constituents for which the listed waste contained in the mixture was listed as hazardous, but also for factors, including additional constituents, that could cause the waste mixture to be a hazardous waste. A waste which is so excluded may still be a hazardous waste by operation of Sections R315-261-20 through 24.

  (c) If the waste is listed with codes "I", "C", "R", or "E", in Sections R315-261-30 through 35,

  (1) The petitioner shall show that the waste does not exhibit the relevant characteristic for which the waste was listed as defined in Sections R315-261-21 through 24 using any applicable methods prescribed therein. The petitioner also shall show that the waste does not exhibit any of the other characteristics defined in Sections R315-261-21 through 24 using any applicable methods prescribed therein;

  (2) Based on a complete application, the Board shall determine, where it has a reasonable basis to believe that factors, including additional constituents, other than those for which the waste was listed could cause the waste to be hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded, however, still may be a hazardous waste by operation of Sections R315-261-20 through 24.

  (d) If the waste is listed with code "T" in Sections R315-2611-30 through 35,

  (1) The petitioner shall demonstrate that the waste:

  (i) Does not contain the constituent or constituents, as defined in appendix VII of Rule R315-261, that caused the waste to be listed; or

  (ii) Although containing one or more of the hazardous constituents, as defined in appendix VII of Rule R315-261, that caused the waste to be listed, does not meet the criterion of Subsection R315-261-11(a)(3) when considering the factors in Subsections R315-261-11(a)(3)(i) through (xi) under which the waste was listed as hazardous; and

  (2) Based on a complete application, the Board shall determine, where it has a reasonable basis to believe that factors, including additional constituents, other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste; and

  (3) The petitioner shall demonstrate that the waste does not exhibit any of the characteristics defined in Sections R315-261.21 Through 24 using any applicable methods prescribed therein;

  (4) A waste which is so excluded, however, still may be a hazardous waste by operation of Sections R315-261-20 through 24.

  (e) If the waste is listed with the code "H" in Sections R315-261-30 through 35,

  (1) The petitioner shall demonstrate that the waste does not meet the criterion of Subsection R315-261-11(a)(2); and

  (2) Based on a complete application, the Board shall determine, where it has a reasonable basis to believe that additional factors, including additional constituents, other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste; and

  (3) The petitioner shall demonstrate that the waste does not exhibit any of the characteristics defined in Sections R315-261-21 through 24 using any applicable methods prescribed therein;

  (4) A waste which is so excluded, however, still may be a hazardous waste by operation of Sections R315-261-20 through 24.

  (f) Reserved.

  (g) Reserved.

  (h) Demonstration samples shall consist of enough representative samples, but in no case less than four samples, taken over a period of time sufficient to represent the variability or the uniformity of the waste.

  (i) Each petition shall include, in addition to the information required by subsection R315-260-20(b):

  (1) The name and address of the laboratory facility performing the sampling or tests of the waste;

  (2) The names and qualifications of the persons sampling and testing the waste;

  (3) The dates of sampling and testing;

  (4) The location of the generating facility;

  (5) A description of the manufacturing processes or other operations and feed materials producing the waste and an assessment of whether such processes, operations, or feed materials can or might produce a waste that is not covered by the demonstration;

  (6) A description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the demonstration;

  (7) Pertinent data on and discussion of the factors delineated in the respective criterion for listing a hazardous waste, where the demonstration is based on the factors in Subsection R315-261-11(a)(3);

  (8) A description of the methodologies and equipment used to obtain the representative samples;

  (9) A description of the sample handling and preparation techniques, including techniques used for extraction, containerization and preservation of the samples;

  (10) A description of the tests performed, including results;

  (11) The names and model numbers of the instruments used in performing the tests; and

  (12) The following statement signed by the generator of the waste or his authorized representative:

  (i) I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration 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.

  (j) After receiving a petition for an exclusion, the Board may request any additional information which the Board may reasonably require to evaluate the petition.

  (k) An exclusion will only apply to the waste generated at the individual facility covered by the demonstration and will not apply to waste from any other facility.

  (l) The Board may exclude only part of the waste for which the demonstration is submitted where it has reason to believe that variability of the waste justifies a partial exclusion.

  (m) Petitioner may, alternatively, proceed under the provisions of 40 CFR 260.22 to have a particular waste delisted by EPA. In the event delisting is granted, the petitioner shall so notify the Board and the Director and the decision of EPA will be binding upon the Board and the Director unless, within 30 days after such notification, the Board specifically overrules the decision of EPA. In such event, the petitioner may petition the Board directly under Section R315-260-22 for the relief sought.