Section 33-24-05-284 - Variance from a treatment standard1. 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: 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 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; orb. 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: (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); or(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 must be submitted in accordance with the procedures in section 33-24-01-06.3. These petitions must include the following statement signed by the petitioner or an authorized representative: (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.)4. After receiving a petition for variance from a treatment standard, the administrator may request any additional information or samples which the administrator may require to evaluate the petition. Additional copies of the complete petition may be requested as needed to send to affected states and to the environmental protection agency regional offices.5. 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.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 section 33-24-05-256.7. During the petition review process, an applicant is required to comply with all restrictions on land disposal under sections 33-24-05-250 through 33-24-05-299 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 administrator, or the administrator's delegated representative, may approve a site-specific variance from an applicable treatment standard if: 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 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; orb. 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: (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 when the treatment standard is not based on combustion of such media); or(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 below (for example, lower than) the concentrations necessary to minimize short- and long-term threats to human health and the environment. Treatment variances approved under this subsection must: (1) 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 noncarcinogenic effects, achieve constituent concentrations that an individual could be exposed to on a daily basis without appreciable risk of deleterious effect during a lifetime.(2) 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 below (for example, lower than) natural background concentrations at the site where the contaminated soil will be land disposed.e. Public notice and reasonable opportunity for public comment must be provided before granting or denying a petition.9. Each application for a site-specific variance from a treatment standard must include the information in subdivisions a through d of subsection 2 of section 33-24-01-06.10. After receiving an application for a site-specific variance from a treatment standard, the assistant administrator, or a delegated representative, 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 governed by a site-specific variance from a treatment standard must comply with the waste analysis requirements for restricted wastes found under section 33-24-05-256.12. During the application review process, the applicant for a site-specific variance must comply with all restrictions on land disposal under sections 33-24-05-250 through 33-24-05-299 once the effective date for the waste has been reached.13. 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, the environmental protection agency 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 sections 33-24-05-201 through 33-24-05-209.N.D. Admin Code 33-24-05-284
Effective December 1, 1988; amended effective December 1, 1991; January 1, 1994; July 1, 1997; December 1, 2003.Amended by Administrative Rules Supplement 2016-359, January 2016, effective 1/1/2016.General Authority: NDCC 23-20.3-03
Law Implemented: NDCC 23-20.3-03, 23-20.3-04