Administrative Code

Virginia Administrative Code
12/5/2021

Part XIV. Rulemaking Petitions and Procedures

9VAC20-60-1370. General.

Rulemaking Petitions and Procedures

A. Any person affected by this chapter may petition the director to exclude a waste at a facility or to change the identification and listing of a solid or hazardous waste, subject to the provisions of this part. Any petition submitted to the director is also subject to the provisions of the Virginia Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The director will not accept any petition relating to delisting of hazardous wastes, equivalent testing or analytical methods. Such petitions shall be submitted to the administrator in accordance with 40 CFR 260.21.

C. Each petition shall be submitted to the department by certified mail and shall include, in addition to any other provisions required by this part, at least the following:

1. The petitioner's name and address;

2. A statement of the petitioner's interest in the proposed action;

3. A description of the proposed action;

4. A statement of the need and justification for the proposed action, including any supporting tests, studies or other information.

Statutory Authority

§ 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.

Historical Notes

Derived from VR672-10-1 § 14, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003.

9VAC20-60-1380. Changes to identification and listing of hazardous wastes.

A. General changes.

1. The administrator may from time to time add or delete wastes listed in Subpart D of 40 CFR Part 261.

2. The petitions to exclude wastes listed in Subpart D of 40 CFR Part 261 which are subject to federal jurisdiction shall be addressed directly to the administrator in accordance with the requirements contained in Subpart C of 40 CFR Part 260.

B. A person whose wastes were delisted as a result of a successful petition to the administrator shall provide to the department:

1. The petitioner's name and address;

2. A copy of the petition to the director; and

3. A copy of the administrator's decision.

A person whose wastes were delisted as a result of a successful petition to the administrator may petition the director for a variance from these regulations to allow the application of the delisting to hazardous waste management within the Commonwealth. The director or his designee will process the petition in accordance with 9VAC20-60-1420 B. (Note: It is usual that delistings by the administrator are incorporated into the Commonwealth's regulation during the next rulemaking by the board; the variance would allow application of the delisting during the interim period before the regulations are amended.)

Statutory Authority

§ 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.

Historical Notes

Derived from VR672-10-1 § 14.1, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003.

9VAC20-60-1390. Changes in classifications as a solid waste.

A. Variances.

1. Applicability.

a. A person who recycles waste that is managed entirely within the Commonwealth may petition the director to exclude the waste at a particular site from the classification as the solid waste (Parts I (9VAC20-60-12 et seq.) and III (9VAC20-60-124 et seq.) of this chapter). The conditions under which a petition for a variance will be accepted are shown in subdivision 2 of this subsection. The wastes excluded under such petitions may still, however, remain classified as a solid waste for the purposes of other regulations issued by the Virginia Waste Management Board or other agencies of the Commonwealth.

b. A person who generates wastes at a generating site in Virginia and whose waste is subject to federal jurisdiction (e.g., the waste is transported across state boundaries) shall first obtain a favorable decision from the administrator in accordance with Subpart C, 40 CFR Part 260, before his waste may be considered for a variance by the director.

c. A person who recycles materials from a generating site outside the Commonwealth and who causes them to be brought into the Commonwealth for recycling shall first obtain a favorable decision from the administrator in accordance with Subpart C, 40 CFR Part 260, before the waste may be considered for a variance by the director.

d. A person who received a favorable decision from the administrator in the response to a petition for variance or nonwaste determination or a person whose wastes were delisted as a result of a successful petition to the administrator shall provide a notification to the department containing the following information: (i) the petitioner's name and address and (ii) a copy of the administrator's decision.

2. Conditions for a variance. In accordance with the standards and criteria in subsection B of this section and the procedures in 9VAC20-60-1420 B, the director may determine on a case-by-case basis that the following recycled materials are not solid wastes:

a. Materials that are accumulated speculatively without sufficient amounts being recycled (as defined in Part I).

b. Materials that are reclaimed and then reused within the original primary production process in which they were generated.

c. Materials that have been reclaimed but must be reclaimed further before the materials are completely recovered.

d. Hazardous secondary materials that are reclaimed in a continuous industrial process.

e. Hazardous secondary materials that are indistinguishable in all relevant aspects from a product or intermediate.

f. Hazardous secondary materials that are transferred for reclamation under 40 CFR 261.4(a)(24) and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards.

B. Standards and criteria for variances.

1. The director may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year. If a variance is granted, it is valid only for the following year, but can be renewed on an annual basis by filing a new application. The director's decision will be based on the following criteria:

a. The manner in which the material is expected to be recycled, and when the material is expected to be recycled, and whether this expected disposition is likely to occur (for example, because of past practice, market factors, the nature of the material, or contractual arrangement for recycling);

b. The reason that the applicant has accumulated the material for one or more years without recycling 75% of the volume accumulated at the beginning of the year;

c. The quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled;

d. The extent to which the material is handled to minimize loss; and

e. Other relevant factors.

2. The director may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria:

a. How economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials;

b. The prevalence of the practice on an industry-wide basis;

c. The extent to which the material is handled before reclamation to minimize loss;

d. The time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process;

e. The location of the reclamation operation in relation to the production process;

f. Whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form;

g. Whether the person who generates the material also reclaims it; and

h. Other relevant factors.

3. The director may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that have been partially reclaimed but must be reclaimed further before recovery is completed if the partial reclamation has produced a commodity-like material. A determination that a partially reclaimed material for which the variance is sought is commodity-like will be based on whether the hazardous secondary material is legitimately recycled as specified in 40 CFR 260.43 and on whether all of the following decision criteria are satisfied:

a. Whether the degree of partial reclamation the material has undergone is substantial as demonstrated by using a partial reclamation process other than the process that generated the hazardous waste;

b. Whether the partially reclaimed material has sufficient economic value that it will be purchased for further reclamation;

c. Whether the partially reclaimed material is a viable substitute for a product or intermediate produced from virgin or raw materials that is used in subsequent production steps;

d. Whether there is a market for the partially reclaimed material as demonstrated by known customer or customers who are further reclaiming the material (e.g., records of sales or contracts and evidence of subsequent use, such as bills of lading); and

e. Whether the partially reclaimed material is handled to minimize loss.

4. The director may grant requests for a variance from classifying as a solid waste those hazardous secondary materials that are transferred for reclamation under 40 CFR 261.4(a)(24) and are managed at a verified reclamation facility or intermediate facility where the management of the hazardous secondary materials is not addressed under a RCRA Part B permit or interim status standards. The director's decision will be based on the following criteria:

a. The reclamation facility or intermediate facility must demonstrate that the reclamation process for the hazardous secondary materials is legitimate pursuant to 40 CFR 260.43;

b. The reclamation facility or intermediate facility must satisfy the financial assurance condition in 40 CFR 261.4(a)(24)(vi)(F);

c. The reclamation facility or intermediate facility must not be subject to a formal enforcement action in the previous three years and not be classified as a significant noncomplier under RCRA Subtitle C, or must provide credible evidence that the facility will manage the hazardous secondary materials properly. Credible evidence may include a demonstration that the facility has taken remedial steps to address the violations and prevent future violations, or that the violations are not relevant to the proper management of the hazardous secondary materials;

d. The intermediate or reclamation facility must have the equipment and trained personnel needed to safely manage the hazardous secondary material and must meet emergency preparedness and response requirements under 40 CFR Part 261 Subpart M;

e. If residuals are generated from the reclamation of the excluded hazardous secondary materials, the reclamation facility must have the permits required (if any) to manage the residuals, have a contract with an appropriately permitted facility to dispose of the residuals, or present credible evidence that the residuals will be managed in a manner that is protective of human health and the environment; and

f. The intermediate or reclamation facility must address the potential for risk to proximate populations from unpermitted releases of the hazardous secondary material to the environment (i.e., releases that are not covered by a permit, such as a permit to discharge to water or air), which may include potential releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures, and must include consideration of potential cumulative risks from other nearby potential stressors.

5. An applicant may apply to the administrator for a formal determination that a hazardous secondary material is not discarded and therefore not a solid waste (i.e., nonwaste determination). The determinations will be based on the criteria contained in subdivision B 6 or B 7 of this section, as applicable. If an application is denied, the hazardous secondary material might still be eligible for a solid waste variance or exclusion (e.g., one of the solid waste variances under this section). Determinations may also be granted by the director if the state is either authorized for this provision or if the following conditions are met:

a. The director determines the hazardous secondary material meets the criteria in subdivision B 6 or B 7 of this section, as applicable;

b. The state requests that EPA review its determination; and

c. EPA approves the state determination.

6. The director may grant a nonwaste determination for hazardous secondary material that is reclaimed in a continuous industrial process if the applicant demonstrates that the hazardous secondary material is a part of the production process and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in 40 CFR 260.43 and on the following criteria:

a. The extent that the management of the hazardous secondary material is part of the continuous primary production process and is not waste treatment;

b. Whether the capacity of the production process would use the hazardous secondary material in a reasonable timeframe and ensure that the hazardous secondary material will not be abandoned (e.g., based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements);

c. Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water, or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process; and

d. Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under 40 CFR 261.2 or 40 CFR 261.4.

7. The director may grant a nonwaste determination for hazardous secondary material that is indistinguishable in all relevant aspects from a product or intermediate if the applicant demonstrates that the hazardous secondary material is comparable to a product or intermediate and is not discarded. The determination will be based on whether the hazardous secondary material is legitimately recycled as specified in 40 CFR 260.43 and on the following criteria:

a. Whether market participants treat the hazardous secondary material as a product or intermediate rather than a waste (e.g., based on the current positive value of the hazardous secondary material, stability of demand, or any contractual arrangements);

b. Whether the chemical and physical identity of the hazardous secondary material is comparable to commercial products or intermediates;

c. Whether the capacity of the market would use the hazardous secondary material in a reasonable timeframe and ensure that the hazardous secondary material will not be abandoned (e.g., based on past practices, market factors, the nature of the hazardous secondary material, or any contractual arrangements);

d. Whether the hazardous constituents in the hazardous secondary material are reclaimed rather than released to the air, water, or land at significantly higher levels from either a statistical or from a health and environmental risk perspective than would otherwise be released by the production process; and

e. Other relevant factors that demonstrate the hazardous secondary material is not discarded, including why the hazardous secondary material cannot meet, or should not have to meet, the conditions of an exclusion under 40 CFR 261.2 or 40 CFR 261.4.

Statutory Authority

§ 10.1-1402 of the Code of Virginia; 42 USC § 6921; 40 CFR Parts 260 through 272.

Historical Notes

Derived from VR672-10-1 § 14.2, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 32, Issue 9, eff. January 27, 2016; Volume 35, Issue 24, eff. August 23, 2019.

9VAC20-60-1400. Changes in process classification. (Reserved)

A. Variance to be classified as a boiler. In accordance with the standards and criteria in the definition of "boiler" and the procedures in 9VAC20-60-1420 B or 9VAC20-60-1420 C the director may determine on a case-by-case basis that certain enclosed devices using controlled flame combustion are boilers, even though they do not otherwise meet the definition of boiler after considering the following criteria:

1. The extent to which the unit has provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases;

2. The extent to which the combustion chamber and energy recovery equipment are of integral design;

3. The efficiency of energy recovery, calculated in terms of the recovered energy compared with the thermal value of the fuel;

4. The extent to which exported energy is utilized;

5. The extent to which the device is in common and customary use as a "boiler" functioning primarily to produce steam, heated fluids, or heated gases; and

6. Other factors, as appropriate.

B. [Reserved.]

Statutory Authority

§ 10.1-1402 of the Code of Virginia.

Historical Notes

Derived from VR672-10-1 § 14.3, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999.

9VAC20-60-1410. Changes in the required management procedures. (Reserved)

A. Reclamation of precious metals. The director may decide on a case-by-case basis that persons accumulating or storing the recyclable materials described in 40 CFR 261.6(a)(2)(iii) should be regulated under 40 CFR 261.6(b) and 40 CFR 261.6(c) rather than under provisions of 20VAC20-60-266. The basis for this decision is that the materials are being accumulated or stored in a manner that does not protect human health and the environment because the materials or their toxic constituents have not been adequately contained, or because the materials being accumulated or stored together are incompatible. In making this decision, the director will consider the following factors:

1. The types of materials accumulated or stored and the amounts accumulated or stored;

2. The method of accumulation or storage;

3. The length of time the materials have been accumulated or stored before being reclaimed;

4. Whether any contaminants are being released into the environment, or are likely to be so released; and

5. Other relevant factors. The procedures for this decision are set forth in 9VAC20-60-1420 C.

B. Variance from containment requirements for tanks.

1. The owner or operator may obtain a variance from the requirements of 40 CFR 265.193 or 40 CFR 264.193 if the director finds, as a result of a demonstration by the owner or operator, either:

a. That alternative design and operating practices, together with location characteristics, will prevent the migration of hazardous waste or hazardous constituents into the ground water or surface water at least as effectively as secondary containment during the active life of the tank system; or

b. That in the event of a release that does migrate to ground water or surface water, no substantial present or potential hazard will be posed to human health or the environment.

2. New underground tank systems may not, per a demonstration in accordance with subdivision 5 of this subsection, be exempted from the secondary containment requirements of this section.

3. Application for a variance as allowed in subdivision 1 of this subsection does not waive compliance with the requirements of 40 CFR 265.193 or 40 CFR 264.193 for new tank systems.

4. In deciding whether to grant a variance based on a demonstration of equivalent protection of ground water and surface water, the director will consider:

a. The nature and quantity of the wastes;

b. The proposed alternate design and operation;

c. The hydrogeologic setting of the facility, including the thickness of soils between the tank system and groundwater; and

d. All other factors that would influence the quality and mobility of the hazardous waste constituents and the potential for them to migrate to ground water or surface water.

5. In deciding whether to grant a variance, based on a demonstration of no substantial present or potential hazard, the director will consider:

a. The potential adverse effects on groundwater, surface water, and land quality taking into account:

(1) The physical and chemical characteristics of the waste in the tank system, including its potential for migration;

(2) The hydrogeological characteristics of the facility and surrounding land;

(3) The potential for health risks caused by human exposure to waste constituents;

(4) The potential for damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and

(5) The persistence and permanence of the potential adverse effects;

b. The potential adverse effects of a release on ground water quality, taking into account:

(1) The quantity and quality of ground water and the direction of ground water flow;

(2) The proximity and withdrawal rates of water in the area;

(3) The current and future uses of ground water in the area; and

(4) The existing quality of groundwater, including other sources of contamination and their cumulative impact on the ground water quality;

c. The potential adverse effects of a release on surface water quality, taking into account:

(1) The quantity and quality of ground water and the direction of ground water flow;

(2) The patterns of rainfall in the region;

(3) The proximity of the tank system to surface waters;

(4) The current and future uses of surface waters in the area any water quality standards established for those surface waters; and

(5) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality; and

d. The potential adverse effects of a release on the land surrounding the tank system, taking into account:

(1) The patterns of rainfall in the region; and

(2) The current and future uses of the surrounding land.

6. The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of subdivision 4 of this subsection at which a release of hazardous waste has occurred from the primary tank system but has not migrated beyond the zone of engineering control (as established in the variance), shall:

a. Comply with the requirements of 40 CFR 265.196 or 40 CFR 264.196, except 40 CFR 265.196(d) or 40 CFR 264.196(d);

b. Decontaminate or remove contaminated soil to the extent necessary to:

(1) Enable the tank system, for which the variance was granted, to resume operation with the capability for the detection of and response to releases at least equivalent to the capability it had prior to the release; and

(2) Prevent the migration of hazardous waste or hazardous constituents to ground water or surface water; and

c. If contaminated soil cannot be removed or decontaminated in accordance with subdivision 6 b of this subsection, comply with the requirements of 40 CFR 265.197(b) or 40 CFR 264.197(b), as applicable;

7. The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of subdivision 4 of this subsection, at which a release of hazardous waste has occurred from the primary tank system and has migrated beyond the zone of engineering control (as established in the variance), shall:

a. Comply with the requirements of 40 CFR 265.196(a) through 40 CFR 265.196(d) or 40 CFR 264.196(a) through 40 CFR 264.196(d);

b. Prevent the migration of hazardous waste or hazardous constituents to ground water or surface water, if possible, and decontaminate or remove contaminated soil. If contaminated soil cannot be decontaminated or removed, or if ground water has been contaminated, the owner or operator shall comply with the requirements of 40 CFR 265.197(b) or 40 CFR 264.197(b); and

c. If repairing, replacing, or reinstalling the tank system, provide secondary containment in accordance with the requirements of 40 CFR 265.193(a) through 40 CFR 265.193(f) or 40 CFR 264.193(a) through 40 CFR 264.193(f) or reapply for a variance from secondary containment and meet the requirements for new tank systems in 40 CFR 265.192 or 40 CFR 264.192 if the tank system is replaced.

The owner or operator shall comply with these requirements even if contaminated soil can be decontaminated or removed, and ground water or surface water has not been contaminated.

C. Petitions to allow land disposal of a waste prohibited under 9VAC20-60-268.

1. Any person seeking an exemption from a prohibition under 9VAC20-60-268 for the disposal of a restricted hazardous waste in a particular unit or units shall submit a petition to the EPA administrator in accordance with 40 CFR 268.6.

2. (Reserved.)

Statutory Authority

§§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.

Historical Notes

Derived from VR672-10-1 § 14.4, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002.

9VAC20-60-1420. Administrative procedures.

A. Procedures for variances to be classified as a boiler. The director will use the following procedures in evaluating applications for variances to classify particular enclosed controlled flame combustion devices as boilers:

1. The applicant must apply to the department for the variance. The application must address the relevant criteria contained in 9VAC20-60-1400.

2. The director will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement or radio broadcast in the locality where the applicant is located. The director will accept comment on the tentative decision for 30 days, and may also hold a public hearing upon request or at his discretion. The director will issue a final decision after receipt of comments and after the hearing (if any).

B. Variances. The director will use the following procedures in evaluating applications for variances submitted under 9VAC20-60-1380 B, 9VAC20-60-1390, and 9VAC20-60-1400.

1. The applicant shall apply to the department. The application shall address the relevant criteria contained in 9VAC20-60-1380 B, 9VAC20-60-1390, and 9VAC20-60-1400.

2. The director will evaluate the application and issue a draft notice tentatively granting or denying the application. Notification of this tentative decision will be provided by newspaper advertisement and radio broadcast in the locality where the applicant is located. The director will accept comment on the tentative decision for 30 days, and may also hold a public hearing upon request or at his discretion. The director will issue a final decision after receipt of comments and after the hearing (if any), and will publish it in the newspaper in the locality where the applicant is located.

3. In the event of a change in circumstances that affect how a hazardous secondary material meets the relevant criteria contained in 9VAC20-60-1390 upon which a variance or nonwaste determination has been based, the applicant must send a description of the change in circumstances to the director. The director may issue a determination that the hazardous secondary material continues to meet the relevant criteria of the variance or nonwaste determination or may require the facility to reapply for the variance or nonwaste determination.

4. Variances and nonwaste determinations shall be effective for a fixed term not to exceed 10 years. No later than six months prior to the end of this term, facilities must reapply for a variance or nonwaste determination. If a facility reapplies for a variance or nonwaste determination within six months, the facility may continue to operate under an expired variance or nonwaste determination until receiving a decision on their reapplication from the director.

5. Facilities receiving a variance or nonwaste determination must provide notification as required by 40 CFR 260.42 as incorporated by reference.

C. Changes in management procedures.

1. Recycling activities. In determining whether to regulate recycling activities in a manner differing from procedures described in 40 CFR 261.6(a)(2)(iii), the director will fulfill all the requirements of Article 3 (§ 2.2-4018 et seq.) of the Administrative Process Act. In addition to the process required by the APA, the director will:

a. If a generator is accumulating the waste, issue a notice setting forth the factual basis for the decision and stating that the person shall comply with applicable requirements of 9VAC20-60-262. The notice will become final within 30 days, unless the person served requests a public hearing to challenge the decision. Upon receiving such a request, the director will hold a public hearing. The director will provide notice of the hearing to the public and allow public participation at the hearing. The director will issue a final order after the hearing stating whether or not compliance with 9VAC20-60-262 is required. The order becomes effective in 30 days, unless the director specifies a later date or unless review under Article 5 (§ 2.2-4025 et seq.) of the Administrative Process Act is requested.

b. If the person is accumulating the recyclable material at a storage facility, issue a notice stating that the person shall obtain a permit in accordance with all applicable provisions of Part III (9VAC20-60-124 et seq.), 9VAC20-60-270, and Part XII (9VAC20-60-1260 et seq.) of this chapter. The owner or operator of the facility shall apply for a permit within no less than 60 days and no more than six months of notice, as specified in the notice. If the owner or operator of the facility wishes to challenge the director's decision, he may do so in his permit application, in a public hearing held on the draft permit, or in comments filed on the draft permit or on the notice of intent to deny the permit. The fact sheet accompanying the permit will specify the reasons for the director's determination. The questions of whether the director's decision was proper will remain open for consideration during the public comment period discussed under 40 CFR 124.11 and in any subsequent hearing.

2. Variance from secondary containment. The following procedures shall be followed in order to request a variance from secondary containment:

a. The department shall be notified in writing by the owner or operator that he intends to conduct and submit a demonstration for a variance from secondary containment as allowed in 40 CFR 265.193(g), (or 40 CFR 264.195(g)), and 9VAC20-60-1410 B according to the following schedule:

(1) For existing tank systems, at least 24 months prior to the date that secondary containment shall be provided in accordance with 40 CFR 265.193(a) or 40 CFR 264.193(a); and

(2) For new tank systems, at least 30 days prior to entering into a contract for installation of the tank system.

b. As part of the notification, the owner or operator shall also submit to the department a description of the steps necessary to conduct the demonstration and a timetable for completing each of the steps. The demonstration shall address each of the factors listed in 9VAC20-60-1410 B 4 or 9VAC20-60-1410 B 5.

c. The demonstration for a variance shall be completed and submitted to the department within 180 days after notifying the department of intent to conduct the demonstration.

d. In case of facilities regulated under 9VAC20-60-265:

(1) The director will inform the public, through a newspaper notice, of the availability of the demonstration for a variance. The notice shall be placed in a daily or weekly major local newspaper of general circulation and shall provide at least 30 days from the date of the notice for the public to review and comment on the demonstration for a variance. The director also will hold a public hearing, in response to a request or at his own discretion, whenever such a hearing might clarify one or more issues concerning the demonstration for a variance. Public notice of the hearing will be given at least 30 days prior to the date of the hearing and may be given at the same time as notice of the opportunity for the public to review and comment on the demonstration. These two notices may be combined.

(2) The director will approve or disapprove the request for a variance within 90 days of receipt of the demonstration from the owner or operator and will notify in writing the owner or operator and each person who submitted written comments or requested notice of the variance decision. If the demonstration for a variance is incomplete or does not include sufficient information, the 90-day time period will begin when the department receives a complete demonstration, including all information necessary to make a final determination. If the public comment period in subdivision 2 d (1) of this subsection is extended, the 90-day time period will be similarly extended.

e. In case of facilities regulated under 9VAC20-60-264, if a variance is granted to the permittee, the director will require the permittee to construct and operate the tank system in the manner that was demonstrated to meet the requirements for the variance.

Statutory Authority

§ 10.1-1402 of the Code of Virginia; 42 USC § 6921; 40 CFR Parts 260 through 272.

Historical Notes

Derived from VR672-10-1 § 14.5, eff. January 1, 1988; amended, Virginia Register Volume 5, Issue 4, eff. January 1, 1989; Volume 6, Issue 6, eff. February 1, 1990; Volume 7, Issue 16, eff. July 1, 1991; Volume 9, Issue 6, eff. January 13, 1993; Volume 9, Issue 23, eff. September 8, 1993; Volume 15, Issue 9, eff. February 17, 1999; Volume 18, Issue 11, eff. March 13, 2002; Volume 19, Issue 18, eff. July 1, 2003; Volume 32, Issue 9, eff. January 27, 2016.

9VAC20-60-1430. Petitions to include additional hazardous wastes.

A. General.

1. Any person seeking to add a hazardous waste or a category of hazardous waste to the universal waste regulations of 9VAC20-60-273 and Part XVI (9VAC20-60-1495 et seq.) of this chapter may petition for a regulatory amendment under this part.

2. To be successful, the petitioner shall demonstrate to the satisfaction of the director that regulation under the universal waste regulations of 9VAC20-60-273 and Part XVI of this chapter:

a. Is appropriate for the waste or category of waste;

b. Will improve management practices for the waste or category of waste; and

c. Will improve implementation of the hazardous waste program.

The petition shall include the information required by 9VAC20-60-1370 C. The petition should also address as many of the factors listed in subsection B of this section as are appropriate for the waste or category of waste addressed in the petition.

3. The director will grant or deny a petition using the factors listed in subsection B of this section. The decision will be based on the weight of evidence showing that regulation under 9VAC20-60-273 and Part XVI of this chapter is appropriate for the waste or category of waste, will improve management practices for the waste or category of waste, and will improve implementation of the hazardous waste program.

4. The director may request additional information needed to evaluate the merits of the petition.

5. If the director adds new hazardous wastes to the list contained in 9VAC20-60-273 and in Part XVI of these regulations, management of these wastes under the universal waste regulations would only be allowed within the Commonwealth or other states that have added those particular wastes to their regulations. Shipments of such wastes to a state where universal waste standards do not apply to that waste would have to comply with the full hazardous waste requirements of Parts I through XV of this chapter.

B. Factors to consider.

1. The waste or category of waste, as generated by a wide variety of generators, is listed in Subpart D of 40 CFR Part 261, or (if not listed) a proportion of the waste stream exhibits one or more characteristics of hazardous waste identified in Subpart C of 40 CFR Part 261. (When a characteristic waste is added to the universal waste regulations of 9VAC20-60-273 and Part XVI of this chapter by using a generic name to identify the waste category (e.g., batteries), the definition of universal waste will be amended to include only the hazardous waste portion of the waste category (e.g., hazardous waste batteries). Thus, only the portion of the waste stream that does exhibit one or more characteristics (i.e., is hazardous waste) is subject to the universal waste regulations of 9VAC20-60-273 and Part XVI of this chapter;

2. The waste or category of waste is not exclusive to a specific industry or group of industries, is commonly generated by a wide variety of types of establishments (including, for example, households, retail and commercial businesses, office complexes, very small quantity generators, small businesses, government organizations, as well as large industrial facilities);

3. The waste or category of waste is generated by a large number of generators (e.g., more than 1,000 nationally) and is frequently generated in relatively small quantities by each generator;

4. Systems to be used for collecting the waste or category of waste (including packaging, marking, and labeling practices) would ensure close stewardship of the waste;

5. The risk posed by the waste or category of waste during accumulation and transport is relatively low compared to other hazardous wastes, and specific management standards proposed or referenced by the petitioner (e.g., waste management requirements appropriate to be added to 9VAC20-60-273 or Part XVI of this chapter; and applicable requirements of the Regulations Governing the Transportation of Hazardous Materials, 9VAC20-110) would be protective of human health and the environment during accumulation and transport;

6. Regulation of the waste or category of waste under 9VAC20-60-273 will increase the likelihood that the waste will be diverted from nonhazardous waste management systems (e.g., the municipal waste stream, nonhazardous industrial or commercial waste stream, municipal sewer or stormwater systems) to recycling, treatment, or disposal in compliance with the Virginia Hazardous Waste Management Regulations;

7. Regulation of the waste or category of waste under 9VAC20-60-273 will improve implementation of and compliance with the hazardous waste regulatory program; and

8. Such other factors as may be appropriate.

Statutory Authority

§§ 10.1-1402 of the Code of Virginia; 42 USC § 6921 et seq.; 40 CFR Parts 260 through 272.

Historical Notes

Derived from Virginia Register Volume 15, Issue 9, eff. February 17, 1999; amended, Virginia Register Volume 18, Issue 11, eff. March 13, 2002; Volume 35, Issue 24, eff. August 23, 2019.

9VAC20-60-1435. Petitions for site-specific variance from the applicable treatment standard under the land disposal restrictions.

The director may approve an application for site-specific variance from the applicable treatment standards under the land disposal restriction using the criteria and procedures established in 9VAC20-60-1370 and 40 CFR 268.44.

Statutory Authority

§§ 10.1-1402 and Article 4 (§ 10.1-1426 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 18, Issue 11, eff. March 13, 2002.

9VAC20-60-1435:1. APPENDIX 14.1. [REPEALED]

APPENDIX 14.1. [REPEALED]

Historical Notes

Repealed, Virginia Register Volume 15, Issue 9, eff. February 17, 1999.

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