[Code of Federal Regulations]

[Title 40, Volume 26]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR268.5]



[Page 175-177]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 268_LAND DISPOSAL RESTRICTIONS--Table of Contents

 

                            Subpart A_General

 

Sec.  268.5  Procedures for case-by-case extensions to an effective date.



    (a) Any person who generates, treats, stores, or disposes of a 

hazardous waste may submit an application to the Administrator for an 

extension to the effective date of any applicable restriction 

established under subpart C of this part. The applicant must demonstrate 

the following:

    (1) He has made a good-faith effort to locate and contract with 

treatment, recovery, or disposal facilities nationwide to manage his 

waste in accordance with the effective date of the applicable 

restriction established under subpart C of this part;

    (2) He has entered into a binding contractual commitment to 

construct or otherwise provide alternative treatment, recovery (e.g., 

recycling), or disposal capacity that meets the treatment standards 

specified in subpart D or, where treatment standards have not been 

specified, such treatment, recovery, or disposal capacity is protective 

of human health and the environment.

    (3) Due to circumstances beyond the applicant's control, such 

alternative capacity cannot reasonably be made available by the 

applicable effective date. This demonstration may include a showing that 

the technical and practical difficulties associated with providing the 

alternative capacity will result in the capacity not being available by 

the applicable effective date;

    (4) The capacity being constructed or otherwise provided by the 

applicant will be sufficient to manage the entire quantity of waste that 

is the subject of the application;

    (5) He provides a detailed schedule for obtaining required operating 

and construction permits or an outline of how and when alternative 

capacity will be available;

    (6) He has arranged for adequate capacity to manage his waste during 

an extension and has documented in the application the location of all 

sites at which the waste will be managed; and

    (7) Any waste managed in a surface impoundment or landfill during 

the extension period will meet the requirements of paragraph (h)(2) of 

this section.

    (b) An authorized representative signing an application described 

under paragraph (a) of this section shall make the following 

certification:



    I certify under penalty of law that I have personally examined and 

am familiar with the information submitted in this document and all 

attachments and that, based on my inquiry of those individuals 

immediately responsible for obtaining the information, I believe that 

the 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.





[[Page 176]]





    (c) After receiving an application for an extension, the 

Administrator may request any additional information which he deems as 

necessary to evaluate the application.

    (d) An extension will apply only to the waste generated at the 

individual facility covered by the application and will not apply to 

restricted waste from any other facility.

    (e) On the basis of the information referred to in paragraph (a) of 

this section, after notice and opportunity for comment, and after 

consultation with appropriate State agencies in all affected States, the 

Administrator may grant an extension of up to 1 year from the effective 

date. The Administrator may renew this extension for up to 1 additional 

year upon the request of the applicant if the demonstration required in 

paragraph (a) of this section can still be made. In no event will an 

extension extend beyond 24 months from the applicable effective date 

specified in subpart C of part 268. The length of any extension 

authorized will be determined by the Administrator based on the time 

required to construct or obtain the type of capacity needed by the 

applicant as described in the completion schedule discussed in paragraph 

(a)(5) of this section. The Administrator will give public notice of the 

intent to approve or deny a petition and provide an opportunity for 

public comment. The final decision on a petition will be published in 

the Federal Register.

    (f) Any person granted an extension under this section must 

immediately notify the Administrator as soon as he has knowledge of any 

change in the conditions certified to in the application.

    (g) Any person granted an extension under this section shall submit 

written progress reports at intervals designated by the Administrator. 

Such reports must describe the overall progress made toward constructing 

or otherwise providing alternative treatment, recovery or disposal 

capacity; must identify any event which may cause or has caused a delay 

in the development of the capacity; and must summarize the steps taken 

to mitigate the delay. The Administrator can revoke the extension at any 

time if the applicant does not demonstrate a good-faith effort to meet 

the schedule for completion, if the Agency denies or revokes any 

required permit, if conditions certified in the application change, or 

for any violation of this chapter.

    (h) Whenever the Administrator establishes an extension to an 

effective date under this section, during the period for which such 

extension is in effect:

    (1) The storage restrictions under Sec.  268.50(a) do not apply; and

    (2) Such hazardous waste may be disposed in a landfill or surface 

impoundment only if such unit is in compliance with the technical 

requirements of the following provisions regardless of whether such unit 

is existing, new, or a replacement or lateral expansion.

    (i) The landfill, if in interim status, is in compliance with the 

requirements of subpart F of part 265 and Sec.  265.301 (a), (c), and 

(d) of this chapter; or,

    (ii) The landfill, if permitted, is in compliance with the 

requirements of subpart F of part 264 and Sec.  264.301 (c), (d) and (e) 

of this chapter; or

    (iii) The surface impoundment, if in interim status, is in 

compliance with the requirements of subpart F of part 265, Sec.  265.221 

(a), (c), and (d) of this chapter, and RCRA section 3005(j)(1); or

    (iv) The surface impoundment, if permitted, is in compliance with 

the requirements of subpart F of part 264 and Sec.  264.221 (c), (d) and 

(e) of this chapter; or

    (v) The surface impoundment, if newly subject to RCRA section 

3005(j)(1) due to the promulgation of additional listings or 

characteristics for the identification of hazardous waste, is in 

compliance with the requirements of subpart F of part 265 of this 

chapter within 12 months after the promulgation of additional listings 

or characteristics of hazardous waste, and with the requirements of 

Sec.  265.221 (a), (c) and (d) of this chapter within 48 months after 

the promulgation of additional listings or characteristics of hazardous 

waste. If a national capacity variance is granted, during the period the 

variance is in effect, the surface impoundment, if newly subject to RCRA 

section 3005(j)(1) due to the promulgation of additional listings or 

characteristics of



[[Page 177]]



hazardous waste, is in compliance with the requirements of subpart F of 

part 265 of this chapter within 12 months after the promulgation of 

additional listings or characteristics of hazardous waste, and with the 

requirements of Sec.  265.221 (a), (c) and (d) of this chapter within 48 

months after the promulgation of additional listings or characteristics 

of hazardous waste; or

    (vi) The landfill, if disposing of containerized liquid hazardous 

wastes containing PCBs at concentrations greater than or equal to 50 ppm 

but less than 500 ppm, is also in compliance with the requirements of 40 

CFR 761.75 and parts 264 and 265.

    (i) Pending a decision on the application the applicant is required 

to comply with all restrictions on land disposal under this part once 

the effective date for the waste has been reached.



[51 FR 40638, Nov. 7, 1986; 52 FR 21016, June 4, 1987, as amended at 52 

FR 25788, July 8, 1987; 54 FR 36971, Sept. 6, 1989; 55 FR 23935, June 

13, 1990; 57 FR 37270, Aug. 18, 1992]