The petitioner must demonstrate that the waste does not meet any of the criteria under which the waste was listed as a hazardous or acutely hazardous waste.  Petitioners are required to provide waste-specific information depending on the hazard codes identified at 40 CFR 261.30(b).  Hazard codes are available for each listed waste and can be found in the tables at 40 CFR 261.31(a) and 40 CFR 261.32, and the regulatory language preceding the tables at 40 CFR 261.33(e) and (f).  Petitioners must demonstrate that:

·        Listed wastes identified by hazard codes I, C, R, or E do not exhibit the relevant characteristic (40 CFR 260.22(c))

·        Listed wastes identified by hazard code T do not contain the toxic constituents, as defined at 40 CFR 261, Appendix VII, or do not meet the criterion in 40 CFR 261.11(a)(3), and that the waste does not exhibit any characteristics (40 CFR 260.22(d))

·        Listed wastes identified by hazard code H do not meet the criterion for listing acute wastes detailed in 40 CFR 261.11(a)(2), and do not exhibit any characteristics (40 CFR 260.22(e))

The number of waste samples analyzed must enough to adequately represent the waste, but in no case less than four samples, collected over a period of time sufficient to represent the variability and uniformity of the waste.

Pursuant to 40 CFR 260.22(i), petitions for a delisting must include:

·        The name and address of the laboratory performing the sampling or tests of the waste

·        The names and qualifications of the persons sampling and testing the waste

·        The dates of sampling and testing

·        The location of the generating facility

·        A description of the manufacturing process 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

·        A description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the demonstration

·        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 40 CFR 261.11(a)(3)

·        A description of the methodologies and equipment used to obtain the representative samples

·        A description of the sample handling and preparation techniques, including techniques used for extraction, containerization, and preservation of the samples

·        A description of the tests performed, including results

·        The names and model numbers of the instruments used in performing the tests

·        A certification statement, as prescribed by 40 CFR 260.22(i)(12)

After receiving the above information, the EPA or state Administrator may request additional information.

When EPA evaluates your delisting petition, the agency will perform a risk assessment on the data. EPA evaluates the potential risk to human health and the environment if your waste is disposed of as a non-hazardous waste. EPA uses a software program known as the Delisting Risk Assessment Software (DRAS). DRAS is a stand-alone software program that calculates the potential risks associated with disposing of a particular waste in a non-hazardous landfill or surface impoundment.  

The EPA or state Administrator will make a tentative decision to grant or deny the petition either in the form of an Advanced Notice of Proposed Rulemaking, a Proposed Rule, or a tentative decision to deny the petition.  Upon written request of any interested party, or of their own motion, the EPA or state Administrator may hold an informal hearing on the petition.  After evaluating all public comments, the final decision will be published in the Federal Register, as a regulatory amendment or denial of the petition.  A generator can appeal a delisting petition denial to EPA or the US Court of Appeals pursuant to the RCRA 7006(a)(1) (see EPA Monthly Call Center Report; February 1987; RCRA Online 12848).

A list of delisted wastes that have been excluded pursuant to 40 CFR 260.20 and 40 CFR 260.22 petitions can be found at 40 CFR 261, Appendix IX. 

Pursuant to 40 CFR 260.22(b), the delisting petitions may be used to delist hazardous wastes subject to the mixture and derived-from rules in 40 CFR 261.3(a)(2)(ii) and (c).  This type of petition extends the delisting process to treatment, storage, and disposal facilities.  To delist treatment residues, petitions must address the constituents/characteristics for which the waste was originally listed (see EPA Memorandum, Morse to Wood; April 14, 1981; RCRA Online 12028).

Before embarking on a delisting, you may wish to review EPA's delisting guidance manual.