February 15, 2021

Comments Sought on No-Migration Variances for Temporary Waste Piles

On January 19, 2021, EPA issued a notice requesting comment on draft guidance regarding petitions for a no-migration variance (NMV) under the land disposal restrictions (LDR) program. [86 FR 5190] Under existing regulations, facilities may apply for an NMV to allow the land placement of hazardous waste, even if that waste does not meet applicable LDR treatment standards. This draft provides guidance on applying for an NMV for a waste pile temporarily located within a RCRA-permitted landfill cell. Comments may be submitted until February 18, 2021 via Docket No. EPA-HQ-OLEM-2020-0689.

Before hazardous waste can be placed into a land disposal unit, it must either: 1) meet the corresponding LDR treatment standards, or 2) be exempt from those standards under an NMV. NMVs are formal decisions rendered by EPA to allow land disposal of a specific prohibited hazardous waste at a particular facility. [§268.6] (“Prohibited” means that the hazardous waste has an LDR treatment standard in effect.)

Treatment and disposal facilities often place treated waste in a temporary waste pile within a landfill cell, while the waste is undergoing testing in accordance with the site’s waste analysis plan to ensure it meets the standards. If the LDR treatment standards are not met, the waste is returned to the treatment process. If the treatment standards are met, the waste is moved to the landfill’s “working face” for final disposal. In 2014 guidance (RO 14843), EPA stated that hazardous waste located in a pile within the boundary of a RCRA-permitted hazardous waste landfill—that does not meet applicable LDR treatment standards and that has not been granted an NMV—would be a violation of the LDR program. Thus, the hazardous waste must meet the LDR treatment standards before being placed into the temporary waste pile, or an approved NMV must be in place.

The agency issued guidance in 1992 for entities petitioning EPA for an NMV to place hazardous waste in landfills, surface impoundments, and waste piles. However, that guidance did not address the specific scenario of a waste pile located within the boundary of a RCRA-permitted hazardous waste landfill being used to temporarily hold treated hazardous waste. The draft guidance issued in the January 19, 2021 Federal Register addresses this situation.

For an NMV to be issued, the petition must demonstrate to a reasonable degree of certainty that there will be no migration of hazardous constituents from the disposal unit for as long as the waste remains hazardous. Facilities utilizing temporary waste piles in a landfill cell must meet this requirement by satisfying the no-migration criteria outlined in §268.6. Petitioners should describe all controls to be applied to the temporary waste pile to prevent the migration of hazardous constituents and the monitoring used to detect migration at the earliest possible time. The use of temporary barriers (e.g., plastic covers above and below the piles), visual monitoring, prompt responses to possible releases, and good housekeeping practices would all be elements to include in these petitions.


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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.