Storage, Treatment, Transportation, and Disposal of Mixed Waste
[Federal Register: November 19, 1999 (Volume 64, Number 223)]
[Proposed Rules]
[Page 63463-63501]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19no99-36]
[[Page 63463]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 266
Storage, Treatment, Transportation, and Disposal of Mixed Waste;
Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 266
[FRN-6470-1]
RIN 2050-AE45
Storage, Treatment, Transportation, and Disposal of Mixed Waste
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; request for comments.
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SUMMARY: The Environmental Protection Agency (EPA) is today proposing
to provide increased flexibility to facilities that manage low-level
mixed waste (LLMW) and naturally occurring and/or accelerator-produced
Radioactive Material (NARM) mixed with hazardous waste. The proposal
also aims to reduce dual regulation of LLMW, which is subject to
Resource Conservation and Recovery Act (RCRA) and to the Atomic Energy
Act (AEA). We believe the changes we are proposing will lower cost and
reduce paperwork burden, while improving or maintaining protection of
human health (including worker exposure to radiation) and the
environment.
We are proposing to allow on-site storage and treatment of these
wastes at the generator's site. Today's proposal will require the use
of tanks/containers to solidify, neutralize, or otherwise stabilize the
waste and would apply only to generators of low-level mixed waste who
are licensed by the Nuclear Regulatory Commission (NRC) or an Agreement
State.
We also seek to exempt LLMW and hazardous NARM waste from RCRA
manifest, transportation, and disposal requirements when certain
conditions are met. Under this conditional exemption, generators and
treaters must still comply with manifest, transport, and disposal
requirements under the NRC (or NRC-Agreement State) regulations for LLW
or NARM.
DATES: To make sure we consider your comments, they must be received on
or before February 17, 2000.
We are seeking comment on this proposed rulemaking from all
interested parties.
ADDRESSES: You can send an original and two copies of your comments
referencing Docket Number F-99-ML2P-FFFFF to (1) if using regular US
Postal Service mail: RCRA Docket Information Center, Office of Solid
Waste (5305G), U.S. Environmental Protection Agency Headquarters (EPA,
HQ), 401 M Street, SW, Washington, D.C. 20460, or (2) if using special
delivery, such as overnight express service: RCRA Docket Information
Center (RIC), Crystal Gateway One, 1235 Jefferson Davis Highway, First
Floor, Arlington, VA 22202. It would also be helpful, although not
mandatory, to include an electronic copy by diskette or Internet E-
mail. In this case, send your comments to the RCRA Information Center
on labeled personal computer diskettes in ASCII (TEXT) format or a word
processing format we can convert to ASCII (TEXT). Please include on the
disk label the name and version or edition of your word processing
software as well as your name. Protect your diskette by putting it in a
protective mailing envelope. To send a copy by Internet E-mail, address
it to: rcra-docket@epamail.epa.gov. Make sure this copy is in ASCII
format that doesn't use special characters or encryption. Cite the
docket Number F-99-ML2P-FFFFF in your electronic file. Commenters
should not submit electronically any confidential business information
(CBI). An original and two copies of CBI must be submitted under
separate cover to: RCRA CBI Document Control Officer, Office of Solid
Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, D.C. 20460.
The RCRA Information Center is at Crystal Gateway One, 1235
Jefferson Davis Highway, First Floor, Arlington Virginia. You may look
at and copy supporting information for RCRA rules from 9:00 a.m. to
4:00 p.m. Monday through Friday, except for Federal holidays. To review
docket materials you should make an appointment by calling (703) 603-
9230. You may copy up to 100 pages from any regulatory document at no
cost. Additional copies cost $0.15 per page. The index and some
supporting materials are available electronically. See the
Supplementary Information section for information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information about this
proposed rule, contact the RCRA Hotline, Office of Solid Waste, U.S.
Environmental Protection Agency, Washington, D.C. 20460, at (800) 424-
9346 (toll free); or TDD (800) 553-7672 (hearing impaired). In the
Washington, D.C. metropolitan area call (703) 412-9810 or TDD (703)
486-3323 (hearing impaired). For information on the disposal portion of
the proposed rule, contact Grace Ordaz at (703) 308-1130 in the Office
of Solid Waste. For information on the storage portion of the proposed
rule, contact Nancy Hunt at (703) 308-8762 or Chris Rhyne at (703) 308-
8658 in the Office of Solid Waste. To get copies of the reports or
other materials referred to in this proposal, contact the RCRA Docket
at the phone number or address listed above.
SUPPLEMENTARY INFORMATION: Follow these instructions to access the rule
electronically on the Internet: www:http://www.epa.gov/epaoswer/
hazwaste/radio.
The official record for this section will be kept in paper form.
Accordingly, EPA will transfer all comments received electronically
into paper form and place them in the official record, which will also
include all comments submitted directly in writing. The official record
is the record maintained at the address in ADDRESSES at the beginning
of this document. Please note, even if you commented on the March 1,
1999 Advance Notice of Proposed Rulemaking (64 FR 10063), for your
comments to be considered for the final rulemaking, you must again
submit comments on this revised and expanded proposal.
EPA responses to comments, whether the comments are written or
electronic, will be in a notice in the Federal Register or in a
response to comments document placed in the official record for this
rulemaking. EPA will not immediately reply to commenters electronically
other than to seek clarification of electronic comments that may be
garbled in transmission or during conversion to paper form.
Table of Contents
I. Statutory Authority
II. Summary of Today's Action
A. What regulatory changes are we proposing for on-site storage
and treatment of LLMW?
B. What regulatory changes are we proposing for transportation
and disposal of LLMW and eligible NARM?
III. Why are we Proposing a Storage, Treatment, Transportation, and
Disposal Rulemaking?
A. Need to address dual regulation concerns
B. Need to respond to HWIR consent decree
C. Need to respond to a rulemaking petition from USWAG and
concerns of other mixed waste generators regarding capacity
IV Precedent for Regulatory Flexibility in this Proposal
A. How does the conditional exemption in the Military Munitions
Rule work?
B. What is our rationale for today's proposed conditional
exemption?
V Low-Level Mixed Waste Storage and Treatment
A. What conditional exemption for stored or treated low-level
mixed waste are we proposing?
1. How does the proposal facilitate decay-in-storage?
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2. For what time period is a storage exemption valid?
3. What are your on-site treatment options?
B. What is our low-level mixed waste storage and treatment
proposal?
1. Which generators and wastes will be eligible for the storage
and treatment exemption?
2. What conditions must you meet as a generator?
3. Whom should you notify if you want to claim an exemption?
4. What records must you keep for the exemption?
5. How can your stored waste lose the exemption?
6. Can your exemption be reclaimed if you fail to meet a
condition?
C. How will implementation and enforcement of the conditional
exemption for storage and treatment of LLMW take place?
1. Is this a self-implementing rule?
2. How will we enforce the proposed storage exemption?
D. What background information did we use for this proposal?
E. What was the response of commenters to the ANPR?
1. What comments did we receive concerning a conditional
exemption for storage?
2. What were the comments on decay-in-storage?
3. What comments did we receive concerning treatment of waste in
storage?
4. What comments did we receive concerning possible conditions
for a storage exemption?
VI Transportation and Disposal Conditional Exemption for Mixed Waste
and Eligible Narm
A. What regulatory relief are we providing for transportation
and disposal proposal?
B. Applicability of the proposal
1. To what types of waste does this rule apply?
2. Who could benefit from this proposal, and what is the profile
of their waste?
3. What other regulatory relief provisions may apply?
C. What is the Point of Exemption?
D. Implementation and Enforcement
1. How will the transportation and disposal conditional
exemption be implemented?
2. What happens if your waste no longer meets the conditions of
the transportation and disposal conditional exemption?
3. Are there any additional requirements you must meet?
4. Can your exemption be reclaimed if you fail to meet a
condition?
5. What can a LLRWDF do to reduce the potential applicability of
RCRA authorities?
E. What conditions must you meet prior to claiming the
transportation and disposal exemption?
1. Why are we requiring LDR treatment?
2. Why is notification a condition for the exemption?
3. What are the conditions for manifesting and transporting the
exempted waste?
4. Why must the exempted waste be disposed only in a LLRWDF
licensed by NRC in accordance with 10 CFR 61?
5. What is the purpose of the records that you are required to
keep?
6. How is the public involved?
F. What is EPA's site-specific, risk-based variance alternative
for disposal?
G . How did we conduct our technical assessment for the disposal
of treated waste at low-level radioactive waste disposal facilities?
1. How did we assess low-level radioactive waste disposal
facilities?
2. What was the technical assessment we conducted?
3. What did we conclude from our technical analyses?
H. Key stakeholder issue
VII Regulatory Impacts
A. What are the regulatory benefits of this rule?
B. What are the costs of this rule?
C. What are the economic impacts of this rule?
VIII State Authorization
IX Relationship with other RCRA and Environmental Programs
A. What is the relationship of this proposal with other RCRA
regulatory programs?
1. Does this proposal change how you determine if a waste is
hazardous?
2. Can LLMW or eligible NARM be a nonhazardous waste under this
proposal?
3. How will the RCRA-exempted waste differ from wastes delisted
under 40 CFR 260.22?
4. Will my waste analysis plan for my RCRA-permitted TSDF
change?
5. Will the proposed rule change how the RCRA closure
requirements apply to my disposal facility?
6. How does the conditional exemption relate to RCRA air
emission standards?
B. What is the relationship of this rule to other environmental
programs?
1. How are CERCLA actions affected by this proposal?
2. How might Clean Air Act regulations be affected?
3. How might Clean Water Act be affected?
X Regulatory Assessment Requirements
A. Executive Order 12866: Determination of Significance
B. Executive Order 13132: Federalism
C. Executive Order 12898: Environmental Justice
D. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
E. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments
F. The Regulatory Flexibility Act as Amended by the Small
Business Regulatory Enforcement Fairness Act of 1996
G. Unfunded Mandates Reform Act
H. National Technology Transfer and Advancement Act of 1995
I. Paperwork Reduction Act
XI List of Comments Being Requested by EPA in this Proposal
XII Supporting Documents
Acronyms Used in This Preamble
AEA--Atomic Energy Act of 1954, as amended
ALRA--As Low As Is Reasonably Achievable
ANPR--Advance Notice of Proposed Rulemaking
ARAR--Applicable or Relevant and Appropriate Requirements
BDAT--Best Demonstrated Available Technology
CBI--Confidential Business Information
CERCLA--Comprehensive Environmental Response, Compensation, and
Liability Act
DOD--Department of Defense
DOE--Department of Energy
EEI--Edison Electric Institute
EPA--Environmental Protection Agency (referred to as ``we''
throughout this document)
FFCA--Federal Facilities Compliance Act
FUSRAP--Formerly Utilized Sites Remedial Action Program
GWRL--Groundwater risk levels
HSWA--Hazardous and Solid Waste Amendments of 1984
HWIR--Hazardous Waste Identification Rule
ICR--Information Collection Request
LDR--Land Disposal Restrictions
LLW--Low-Level Radioactive Waste
LLMW--Low-Level Mixed Waste
LLRWDF--Low-Level Radioactive Waste Disposal Facility
MMR--Military Munitions Rule
NAAG--National Association of Attorneys General
NARM--Naturally Occurring and/or Accelerator-produced Radioactive
Material
NGA--National Governors' Association
NNPP--Naval Nuclear Propulsion Program
NRC--Nuclear Regulatory Commission
NTTAA--National Technology Transfer and Advancement Act
OMB--Office of Management and Budget
OSW--Office of Solid Waste
RCRA--Resource Conservation and Recovery Act
RFA--Regulatory Fairness Act
RIC--RCRA Information Center
RQ--Reportable Quantity
SARA--Superfund Amendments and Reauthorization Act
SBREFA--Small Business Regulation Enforcement Fairness Act
SQG--Small Quantity Generator
TC--Toxicity Characteristic
TRI--Toxics Release Inventory
TSDF--Treatment, Storage and Disposal Facility
UHC--Underlying Hazardous Constituent
UMRA--Unfunded Mandates Reform Act of 1995
UMTRCA--Uranium Mill Tailings Radiation Control Act
USWAG--Utility Solid Waste Activities Group
UTS--Universal Treatment Standards
Definition of Terms Used in the Preamble
Agreement State--means a state that has entered into an agreement
with the NRC under subsection 274b of the Atomic Energy Act of 1954, as
amended (68 Stat. 919), to assume responsibility for regulating within
its borders source, special nuclear, or byproduct material
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in quantities not sufficient to form a critical mass.
ANPR (Advance Notice of Proposed Rulemaking)--refers in this
document to the advance notice published in the Federal Register on
March 1, 1999 (64 FR 10063) on mixed waste storage.
Appropriately trained--means trained in a manner that ensures that
low-level mixed waste is safely managed and includes training in
chemical and radiological waste management.
Eligible NARM--for the purpose of this proposal, means NARM that
meets the acceptance criteria of a LLRWDF licensed by NRC or an
Agreement State in accordance with 10 CFR 61, and is also contaminated
by a hazardous waste, and therefore, is eligible for the transportation
and disposal conditional exemption.
Hazardous waste--means any material which is defined to be
hazardous waste in accordance with 40 CFR 261.3, ``Definition of
Hazardous Waste.''
Legacy waste--means waste that was generated by past activities and
is in storage because appropriate treatment technologies have not been
developed, or treatment and disposal capacity has not been available.
It has been stored longer than RCRA regulatory time limits.
Low-Level Mixed Waste (LLMW)--means low-level radioactive waste
containing a RCRA hazardous waste component.
Low-Level radioactive waste (LLW)--means radioactive waste
containing source, special nuclear, or by-product material which is not
classified as high-level radioactive waste, transuranic waste, spent
nuclear fuel, byproduct material as defined in Sec. 11(e)(2) of the
Atomic Energy Act or NARM. (See also NRC definition of ``waste'' at 10
CFR 61.2)
Low-Level Radioactive Waste Disposal Facility (LLRWDF)--means a
disposal facility licensed by the NRC or Agreement State for the
disposal of low-level waste.
Mixed Waste--defined in RCRA as amended by the Federal Facility
Compliance Act of 1992, means a waste that contains both RCRA hazardous
waste and source, special nuclear, or by-product material subject to
the Atomic Energy Act of 1954, as amended.
Mixed Waste Treatment Facility--means a waste treatment facility
permitted by EPA or an Authorized State to treat hazardous waste and
licensed by the NRC or Agreement State to manage radioactive waste.
Naturally Occurring and/or Accelerator-produced Radioactive
Material (NARM)--means radioactive materials that are naturally
occurring or produced by an accelerator. The naturally occurring
radioactive material (NORM) is defined below. Currently NARM is not
regulated by NRC or EPA. Rather it is regulated by the States under
State law, or by DOE under DOE Orders.
Naturally Occurring Radioactive Material (NORM)--is a subset of
NARM and refers to materials whose radioactivity has been enhanced
(radionuclide concentrations are either increased or redistributed
where they are more likely to cause human exposures) usually by mineral
extraction or processing activities. Examples are exploration and
production wastes from the oil and natural gas industry, and phosphate
slag piles from the phosphate mining industry. This term is not used to
describe or discuss the natural radioactivity of rocks and soils, or
background radiation, but instead refers to materials whose
radioactivity is technologically enhanced by controllable practices.
NRC or Agreement State license--means a license issued by the
Nuclear Regulatory Commission or an Agreement State under authority
granted by the AEA.
NUREG--refers to Nuclear Regulatory Commission publications and
documents that include: formal staff reports, which cover a variety of
regulatory, technical and administrative subjects; brochures, which
include manuals, procedural guidance, directories and newsletters;
conference proceedings and papers presented at a conference or
workshop; and books, which serve a technical purpose or an industry-
wide needs. Many of the NUREG documents are listed on the NRC Home Page
(http://www.nrc.gov).
On-site--is defined in the RCRA regulations at 40 CFR 260.10, et
seq.
RCRA program agency--means EPA, or the State agency authorized to
implement the RCRA program.
Radioactive waste--is generally classified as source, special
nuclear, or by-product material, and is exempt from the definition of
solid waste at 42 U.S.C. 6903, 40 CFR 261.4(a)(4).
Tie-down conditions--include NRC guidance documents and policies
concerning storage and treatment of LLW which become part of the NRC or
Agreement State radioactive materials license by reference.
Who is Eligible for This Rule?
The conditional exemption proposed for low-level mixed waste (LLMW)
storage and treatment applies to any mixed waste generator that has an
NRC or Agreement State license to possess radioactive material or to
operate a nuclear reactor, so long as the waste generator can satisfy
the conditions set forth in this proposal.
The transportation and disposal exemption applies to generators of
LLMW and eligible NARM so long as they meet all specified conditions.
Facilities potentially affected by this action include those identified
in
Table 1.
Table 1.--Facilities Potentially Affected by the Proposal
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Examples of regulated
Category facilities
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Nuclear Utilities......................... Firms that generate
electricity using nuclear
fuel as the source of
energy and have been
licensed by the NRC
Universities and Academic Institutions.... Academic institutions at all
levels that are licensed by
NRC, or an Agreement State,
to use radionuclides for
academic, biomedical, and
research purposes.
Medical Facilities........................ Hospitals, medical
laboratories, doctors'
offices, or clinics that
are licensed by NRC or an
Agreement State to use
radionuclides for health
care purposes
Industrial Establishments................. Private companies and
institutions, including
pharmaceutical companies,
and research and
development institutions
Governmental Facilities................... Facilities, installations
and laboratories operated
by State Agencies, and by
Federal Agencies,
including, but not limited
to, DOE (including the
Naval Nuclear Propulsion
Program), the National
Institutes of Health, the
National Institute of
Standards and Technology,
and the Department of
Defense.
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The preceding table is not intended to be exhaustive, but rather
provides examples of facilities likely to be affected by this proposal.
To determine whether you are affected by this regulatory action, you
should carefully
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examine the applicability criteria in Parts V and VI of this preamble.
If you have any questions regarding the applicability of this section
to a particular entity, consult the persons listed under FOR FURTHER
INFORMATION CONTACT.
I. Statutory Authority
The statutory basis for this rule is in Sections 2002(a), 3001,
3002, 3004, 3005, 3006, 3007, and 3013 of the Solid Waste Disposal Act
of 1970, as amended by the Resource Conservation and Recovery Act of
1976 (RCRA) and the Hazardous and Solid Waste Amendments of 1984
(HSWA), 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924, 6926, 6927 and 6934.
II. Summary of Today's Action
In today's notice we are proposing a conditional exemption for the
storage, treatment, transportation, and disposal of low-level mixed
waste (LLMW) pursuant to the Hazardous Waste Identification Rule (HWIR)
consent decree (see II. B.) regarding potential regulatory flexibility
related to hazardous waste disposal requirements and other relief as
appropriate for commercial mixed waste. (See Ref. 1, Consent Decree and
Ref. 2, Side-bar Letter.) As an NRC-licensed generator who meets
certain conditions we specify, (a) your LLMW would be exempt from some
RCRA Subtitle C storage and treatment regulations, and (b) your LLMW
and eligible NARM (see definitions and discussion in VI. B. 1.), would
be exempt from some RCRA Subtitle C manifesting, transportation, and
disposal regulations. However, your LLMW and eligible NARM waste remain
subject to RCRA land disposal restriction (LDR) treatment standards
under the transportation and disposal exemption.
The ``Diagram of the Storage, Treatment and Disposal Exemptions
Under the Proposal'' gives an overview of when waste would be
conditionally exempt from certain RCRA hazardous waste management
requirements. Briefly, LLMW generated and stored onsite in tanks or
containers is exempted as long as the exemption conditions listed in
Sec. 266.230 are met. NRC or Agreement State-licensed generators may
treat their LLMW on-site pursuant to the limitations imposed by
Sec. 266.235. Any generator may send LLMW and eligible NARM waste for
disposal to a low-level radioactive waste disposal facility (LLRWDF)
licensed by the NRC or an Agreement State, if all the conditions are
met. Thus, certain LLMW and eligible NARM waste of NRC licensees may
remain exempted from many RCRA requirements through much of the waste
management process.
If your LLMW and eligible NARM is not treated to meet LDR treatment
standards and is sent off-site for storage, treatment or disposal, your
waste remains subject to all RCRA Subtitle C and NRC management
requirements. LLMW treated off-site at mixed waste treatment facilities
to meet LDR treatment standards may be eligible for the disposal
exemption if all conditions for the transportation and disposal
exemption are met.
In order to claim a conditional exemption for storage or disposal
you must notify the RCRA program agency that you meet the conditions.
However, if information you provide on your notification is inaccurate,
your claim for a conditional exemption is nullified and you will be
subject to RCRA Subtitle C enforcement.
A. What Regulatory Changes are We Proposing for On-Site Storage and
Treatment of LLMW?
Our proposal would allow generators of LLMW to claim a conditional
exemption from the RCRA definition of hazardous waste for mixed wastes
stored on-site (40 CFR 260.10). This conditional exemption acknowledges
the protectiveness of storage of mixed waste subject to NRC regulations
for low-level waste (LLW). During the storage of LLMW, our proposal
would allow the conditionally exempt waste to be treated in tanks or
containers to enable neutralization, solidification, or other
stabilization of the hazardous portion of the waste. This regulatory
flexibility would apply only to generators of low-level mixed waste who
are licensed by NRC. Once your LLMW is removed from storage for further
management, it is subject to hazardous waste management requirements
unless it qualifies for a disposal exemption. In that case, you must
show that it: meets the RCRA LDR treatment standards and NRC's LLW
disposal requirements; and is destined for disposal at LLRWDFs licensed
by NRC.
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B. What Regulatory Changes Are We Proposing for Transportation and
Disposal of LLMW and Eligible NARM?
We are proposing a conditional exemption from hazardous waste
transportation, and disposal requirements for LLMW, and for eligible
NARM. (See discussion in VI.B.1.) (Throughout this document when we
refer to the conditional exemption for transportation and disposal of
LLMW, we also mean eligible NARM.) The transportation and disposal
exemption would not take effect until you fulfill all of the following
conditions: (1) Treat your waste to meet the RCRA LDR treatment
standards; (2) notify appropriate regulatory agencies of your exemption
claim; (3) ship your waste according to NRC and DOT shipping
requirements for transportation of LLW using an NRC Uniform LLW
Manifest (Form 540, 541, and 542) for immediate disposal to a facility
licensed by the NRC or an Agreement State; and (4) maintain appropriate
records (including LDR records) for required time periods. Meeting all
the prescribed conditions will allow your LLMW or NARM-contaminated
hazardous waste to be exempt from the RCRA regulatory definition of
hazardous waste.
Under this exemption, you may not send your conditionally-exempt
LLMW or eligible NARM for disposal to a DOE radioactive waste disposal
facility. Such action would make your waste subject to RCRA hazardous
waste regulation, and potentially subject you to RCRA enforcement
authority. Note that DOE LLMW which meets the conditions of the
exemption for disposal may be shipped to an NRC-licensed disposal
facility.
III. Why Are We Proposing a Storage, Treatment, Transportation, and
Disposal Rulemaking?
Mixed waste is regulated under multiple authorities: RCRA (for the
hazardous component), as implemented by EPA or Authorized States; and
AEA (for the source, special nuclear, or byproduct material component),
as implemented by the NRC or NRC or an Agreement State (for
commercially-generated mixed wastes), or the Department of Energy (DOE)
(for defense-related mixed waste generated by DOE activities. NARM-
contaminated hazardous waste is also regulated under multiple
authorities: RCRA (for the
[[Page 63469]]
hazardous component); and State law (for the NARM component), as
implemented by a State agency designated by State law. We are proposing
to make RCRA Subtitle C regulations more flexible so that generators of
LLMW and eligible NARM are relieved of some dual regulatory
requirements in managing their mixed wastes.
A. Need To Address Dual Regulation Concerns
Members of the regulated community have informed us that the
combination of RCRA and NRC requirements for LLMW is burdensome,
duplicative, and costly and does not provide more protection of human
health and the environment than that achieved under one regulatory
regime. We are responding to these concerns about the inefficiencies of
dual regulation, as well as concerns about the radiation exposure of
workers.
In addition, other mixed waste generators have expressed concerns
about limited capacity of LLMW treatment and disposal. These concerns
originated because RCRA Sec. 3004(j) generally prohibits the storage of
hazardous wastes that are also subject to RCRA land disposal
restrictions unless the storage is ``solely for the purpose of the
accumulation of such quantities of hazardous waste as are necessary to
facilitate proper recovery, treatment or disposal.'' Under EPA's
regulation codifying RCRA Sec. 3004(j) we presume that the initial year
of hazardous waste storage is for the sole purpose of accumulating a
quantity necessary to facilitate treatment and disposal. However, if
you store LLMW on-site for more than one year, you have the burden of
proving that the storage is for the allowed purpose.
Based on our information collection effort in the ANPR and
information from mixed waste generators, we found that capacity for the
treatment and disposal of certain LLMW is not always available (that
is, LLMW containing certain radionuclides are not allowed to be
disposed at the only LLMW disposal unit--licensed by the State of Utah,
an NRC Agreement State). We also found that commercial mixed waste
treatment facilities have not been willing to accept LLMW for treatment
without viable disposal options. Since mixed waste disposal capacity is
lacking, some generators of LLMW store the waste on-site. In addition,
we found that the possibility of siting a new LLMW disposal facility is
extremely low. Because of the very limited LLMW disposal capacity and
the low probability of a disposal facility being built in the near
future, we believe it is appropriate to provide safe and legal
alternatives for the disposal of LLMW. We also believe that the
availability of alternate disposal capacity would enable disposal of
``legacy'' wastes currently in on-site storage by generators of LLMW.
We have assessed NRC regulations for storage and disposal of LLW
and compared them with EPA's regulations for hazardous waste storage,
treatment, transportation, and disposal. Our review suggests that given
the NRC's regulatory controls, human health and environmental
protection from chemical risks would not be compromised if we deferred
to NRC LLW management practices. Through this action, we are proposing
regulatory relief intended to allow the disposal of certain LLMW (such
as legacy waste requiring long-term storage due to lack of treatment
and disposal capacity), that have, until now, been stored on-site by
NRC licensees as mixed waste subject to both RCRA permitting and NRC
licensing requirements.
A similar situation exists at DOE facilities. Available information
suggests that currently DOE cannot treat some of its LLMW due to a lack
of treatment capacity. DOE operations, therefore, must store their LLMW
pursuant to a RCRA storage permit. However, DOE is also subject to
state compliance orders and other requirements for treatment of its
mixed waste as a result of the Federal Facility Compliance Act of 1992
(FFCA, P.L. 102-386, October 6, 1992). This rulemaking effort may
result in removal of some DOE ``legacy'' waste from storage if DOE:
increases its own mixed waste treatment capacity or uses commercial
mixed waste treatment capacity to meet land disposal treatment
standards; and disposes of LLMW treated to LDR treatment standards in a
LLRWDF licensed by NRC by meeting the conditions specified to qualify
for an exemption from disposal of LLMW as a RCRA hazardous waste.
We seek comment on the ways we propose to address the issue of dual
regulation of LLMW storage, treatment, transportation, and disposal.
B. Need To Respond to HWIR Consent Decree
The Edison Electric Institute (EEI), the Utility Solid Waste
Activities Group (USWAG), and the Nuclear Energy Institute (NEI)--trade
groups representing commercial nuclear power plants--were parties to
settlement discussions regarding the deadline for the final Hazardous
Waste Identification Rulemaking, ETC v. Browner, C.A. No. 94-2119 (TFH)
(D.D.C.). On April 11, 1997, the court entered a consent decree which
requires EPA to propose revisions to the mixture and derived-from
rules, 40 CFR 261.3(a)(2)(iv) and (c)(2)(I) and to seek comment on
eleven items listed in the decree with respect to those revisions. One
of the eleven items concerns an exemption from RCRA hazardous waste
disposal regulations for nuclear power plant low-level mixed waste. The
proposal must also request comment on other regulatory relief for these
wastes, if EPA finds that any other relief would be appropriate. (See
ANPR for further information.)
Today's notice requests comment on EPA's proposal to provide
regulatory relief to LLMW generators and other regulatory relief as
described in this document. In a separate notice (see Docket # F-99-
WH2P-FFFFF), EPA is proposing revisions to the mixture and derived-from
rules and requesting comment on the other ten items set forth in the
consent decree. Those proposed revisions include an exemption for mixed
waste that is managed in compliance with the requirements in part 266,
subpart N proposed here today.
C. Need To Respond to a Rulemaking Petition From USWAG and Concerns of
Other Mixed Waste Generators Regarding Capacity
The Utility Solid Waste Activities Group (USWAG), a national
organization of power companies, petitioned the U.S. EPA on January 13,
1992 to request an amendment to RCRA Subtitle C regulations governing
storage of mixed wastes. The USWAG organization cited difficulties in
complying with RCRA Subtitle C regulations because of limited treatment
technology and disposal capacity for some mixed wastes. (See discussion
in ANPR for additional information.) We regard today's action as a
response to the USWAG petition.
Policy of Lower Enforcement Priority for Mixed Waste
Recognizing this capacity difficulty, we issued a policy on the
lower priority of enforcement of the storage prohibition contained in
Sec. 3004(j) of RCRA. (See 56 FR 42730; August 29, 1991) Sec. 3004(j)
prohibits storage of a land disposal restricted waste (including mixed
waste), except for the purposes of the accumulation of such quantities
of hazardous waste necessary to facilitate proper recovery, treatment,
or disposal. Because treatment technology or disposal capacity was
still unavailable for some mixed wastes, we extended this policy on
October 31,
[[Page 63470]]
1998. The lack of adequate treatment technology or disposal capacity
for some mixed waste streams necessitated storage in violation of land
disposal restrictions for storage of mixed waste. The policy stated
that violators who: were faced with the impossibility of complying with
the RCRA regulations; had a RCRA storage permit; and were storing their
wastes in an environmentally responsible manner would be a low
enforcement priority for EPA. The extension of the policy expires
October 31, 2001. (See 63 FR 59989; November 6, 1998.) This proposed
rulemaking is expected to replace the current enforcement policy.
IV. Precedent for Regulatory Flexibility in This Proposal
We are proposing regulatory flexibility modeled on the conditional
exemption developed for waste military munitions in the Military
Munitions Rule (40 CFR part 266, Subpart M) published February 12, 1997
(62 FR 6622-6657).
A. How Does the Conditional Exemption in the Military Munitions Rule
Work?
The Military Munitions Rule (MMR) identifies when conventional and
chemical military munitions become a hazardous waste subject to RCRA
Subtitle C. In the MMR, EPA developed a conditional exemption to
provide regulatory flexibility to storers and transporters of non-
chemical waste military munitions. Under the conditional exemption,
non-chemical waste military munitions that normally meet the definition
of ``hazardous waste'' are not regulated under RCRA Subtitle C as a
hazardous waste so long as the facilities storing or transporting
munitions meet all of the conditions for storing and transporting non-
chemical waste munitions listed in the rule. (For the complete text of
the Military Munitions Rule, see 62 FR 6621, February 12, 1997.)
The Court of Appeals upheld all aspects of the MMR in Military
Toxics Project v. EPA, 146 F. 3rd 948 (D.C. Cir. 1998). The court
agreed that ``Congress has not spoken directly to the issue of
conditional exemption,'' and upheld as reasonable EPA's interpretation
that Sec. 3001(a), which requires the Administrator to promulgate
criteria for identifying and listing wastes that should be subject to
Subtitle C requirements, allows the use of conditional exemptions.
(Ibid.) The court also agreed with EPA that ``where a waste might pose
a hazard only under limited management scenarios, and other regulatory
programs already address such scenarios, EPA is not required to
classify a waste as hazardous waste subject to regulation under
Subtitle C.'' (Ibid. at 958.)
B. What Is Our Rationale for Today's Proposed Conditional Exemption?
In the MMR, EPA conditionally exempted stored waste military
munitions and transported from one military owned or operated facility
to another. However, waste military munitions treatment, and disposal
remain subject to RCRA Subtitle C. We take a comparable approach for
generators of LLMW in this proposed rulemaking in that we propose to
provide a conditional exemption for the storage, treatment,
transportation, and disposal of LLMW that is also subject to NRC or
Agreement State regulation. We base this proposal on the NRC or the NRC
Agreement State licensing process and regulatory requirements, and
their adequacy in addressing risks from radioactivity and RCRA
hazardous constituents. By promulgating a conditional exemption, we can
eliminate redundant or dual requirements where wastes are managed
safely and mismanagement is unlikely; the NRC-required safeguards are
in place (for example, inspection, monitoring, record keeping,
reporting); and penalties or other consequences may be imposed if the
governing regulatory framework is not followed.
In proposing a conditional exemption from RCRA Subtitle C
regulation for storage/treatment of NRC-licensee generated LLMW, we
evaluated certain key factors. First, we reviewed the licensing
requirements and NRC standards for the storage and treatment of LLW to
determine whether NRC regulation of stored low-level waste (LLW)
adequately protects against possible risks from RCRA hazardous
constituents in mixed waste. Although NRC regulation and oversight are
designed primarily for radiation risks, the NRC, the regulated
industry, and others have argued that these standards largely duplicate
RCRA requirements and thus, protect against chemical risks to human
health and the environment. Second, we compared NRC low-level waste and
EPA hazardous waste storage and treatment requirements. (See Ref. 4,
EPA's comparison of storage and treatment requirements, for details.)
Our analysis was done independently of similar studies performed by
USWAG, the Electric Power Research Institute, and the Nuclear
Management and Resources Council, Inc. (who represent members of the
power generation industry) regarding applicable NRC standards. (See
Ref. 6 and 16 for the industry studies.) These other studies concluded
that the technical design and operating standards of the NRC meet or
exceed RCRA standards in virtually all respects, though there were
differences noted in emphasis (performance based rather than
proscriptive requirements) and implementation of NRC licensing
requirements. Third, we reviewed the compliance history of licensed
facilities. We looked at the documentation of incidents involving the
storage and on-site treatment of radioactive wastes by LLMW generators
who are NRC licensed users of radionuclides. Our review of documented
information suggests that NRC licensed facilities almost universally
have good low-level waste management safety records. (See Ref. 3, EPA's
compliance record review.) Based on our evaluation of these factors, we
concluded that low-level mixed wastes stored and treated at these
facilities are not likely to be mismanaged, and that regulation under
RCRA Subtitle C does not increase protection to human health and the
environment for these wastes during on-site storage and treatment.
In addition to storage and treatment requirements, we reviewed NRC
requirements and the practices of low-level waste disposal facilities
to determine if they provide human health and environmental protection
similar to that achieved upon the disposal of low-level mixed waste at
RCRA Subtitle C disposal facilities. (Ref. 7, Technical assessment of
LLRWDFs) Our review suggests that NRC regulations for disposal
facilities provide adequate protection so long as the hazardous
constituents are treated to LDR treatment standards prior to disposal.
Therefore, compliance with LDR treatment standards is required to
obtain the conditional exemption for disposal of LLMW or eligible NARM.
Disposal facilities licensed by the NRC will be accepting for disposal
conditionally-exempt LLMW as a low-level waste. We believe that LLMW or
eligible NARM disposed at these facilities are not likely to be
mismanaged and, therefore, RCRA Subtitle C regulation is not necessary
to protect human health and the environment.
V. Low-Level Mixed Waste Storage and Treatment
We are proposing a conditional exemption from RCRA Subtitle C
requirements to provide regulatory flexibility related to storage and
treatment for (1) the on-site storage of low-level mixed waste if
specified conditions are met; and (2) the on-site treatment of low-
level mixed waste in qualified tanks or containers (40 CFR 262.34).
This regulatory flexibility applies to any generator of LLMW who
[[Page 63471]]
is an NRC licensee licensed to manage radioactive materials.
A. What Conditional Exemption for Stored or Treated Low-Level Mixed
Waste Are We Proposing?
We are proposing in today's action to conditionally exempt LLMW
from the regulatory definition of hazardous waste, found in Sec. 261.3,
while the waste is stored and/or treated on-site. The conditional
exemption is available only to NRC licensees who generate LLMW.
Generators must notify EPA of the storage units for which they are
claiming an exemption and meet other conditions listed below. During
storage or treatment of conditionally exempted LLMW, the generator will
not be required to have a RCRA storage permit for the conditionally
exempt waste. The conditional exemption proposed today applies only to
LLMW and does not affect other RCRA wastes a licensee may generate. A
RCRA permit may be required for management of those other wastes
depending on the circumstances. This proposal also describes which
wastes are eligible for the conditional exemption (Sec. 266.225), what
a generator must do to qualify for the exemption if specified
conditions are met (Sec. 266.230), and how the exemption will be
implemented (Sec. 266.240 and following).
Under our proposal if you fail to meet any of the conditions, your
LLMW is no longer exempted from the definition of hazardous waste. As a
hazardous waste, your LLMW would be subject to RCRA Subtitle C
regulation. Also, if a release or other incident of waste spill occurs
while the waste is being stored, your waste may be subject to
regulation as a hazardous waste. For example, you may be subject to the
provisions of RCRA Sec. 7003 which specify that in any situation where
an imminent and substantial endangerment to health or the environment
is caused by the handling of solid or hazardous wastes EPA can order
any person contributing to the problem to take steps to clean it up.
Violation of RCRA Sec. 7003 orders can result in significant penalties.
1. How Does the Proposal Facilitate Decay-in-Storage?
NRC generally allows research, medical, and other facilities to
store low-level wastes containing radionuclides with half-lives of less
than 65 days (or more under an amended license) until 10 half-lives
have elapsed and the radiation emitted from the unshielded surface of
the waste (as measured with an appropriate survey instrument) is
indistinguishable from background levels. This process is known as
decay-in-storage. Our proposal facilitates decay-in-storage by
supporting NRC license provisions related to short-lived radionuclides,
and NRC requirements to limit worker exposures to meet ALARA (as low as
reasonably achievable). Once the specified radionuclide decay has
occurred, the waste may then be disposed of as non-radioactive waste
after ensuring that all radioactive material labels are rendered
unrecognizable (see 10 CFR 35.92 and 10 CFR 20.2001).
The time frame for LLW decay-in-storage is based on the
radionuclides (and half-lives) specified in a low-level waste
generator's NRC license. Such management of LLW significantly reduces
worker exposures to radionuclides since containerized wastes are not
shipped for treatment and disposal while the short-lived radionuclides
are held in storage on-site for the purpose of radioactive decay. This
outcome is consistent with the proposed RCRA conditional exemption.
Several universities and medical facilities have indicated to us
that a conditional exemption during the decay-in-storage time period
would be a way of reducing risk, exposures, and regulatory inefficiency
in the management of their LLMW. Commenters on the ANPR confirmed this
information. We are proposing that the management of LLMW during on-
site storage be regulated under NRC's decay-in-storage requirements.
We anticipate that the requirements will provide regulatory
flexibility to academic, medical, research, and other facilities by
reducing overlapping RCRA and AEA requirements. For LLMW containing
short-lived radionuclides, today's proposed conditional exemption would
be temporary because it would be in effect only until the radioactive
component of the mixed waste has decayed to a point that it is no
longer subject to NRC license requirements. After the decay-in-storage
process is completed, the waste becomes subject to RCRA Subtitle C
requirements. We would appreciate comments regarding the standard to
use for determining when the decayed waste would reenter RCRA Subtitle
C management.
2. For What Time Period is a Storage Exemption Valid?
We are proposing that an exemption will be valid as long as the
mixed waste: (1) Remains on-site and (2) is subject to NRC regulation.
We are considering whether a general storage exemption time limit
should be imposed. A time limit may affect both facilities with
untreatable legacy wastes and future treatment and disposal capacity.
We invite comment on whether a time limit may be appropriate, and, if
so, on what basis that time limit might be established.
Under a decay-in-storage scenario, LLMW is no longer subject to NRC
regulations when the radioactive portion of the waste can be disposed
of as non-radioactive material in accordance with the generator's NRC
license. At that point the mixed waste would not be conditionally
exempt from RCRA Subtitle C. If the decayed waste still exhibits a RCRA
hazardous waste characteristic or is a listed hazardous waste, then it
must be shipped promptly off-site for treatment to meet LDR treatment
standards, if needed, and disposed at a RCRA Subtitle C facility. Thus,
the RCRA storage limit for a formerly mixed, now solely hazardous,
waste prior to shipment off-site for treatment and/or disposal begins
when: (1) The radionuclide with the longest half-life in a container
has decayed as specified in the license (generally ten half-lives but
sometimes fewer half-lives); and (2) the radiation emitted from the
unshielded surface of the waste is not above background levels as
measured by appropriate monitoring equipment as specified by NRC.
Some radionuclides take longer than 10 half-lives to decay to
levels that are indistinguishable from background. If we limited the
time for decay to either ten half-lives or when the waste no longer
registers above background levels, then some portion of LLMW that is
being stored may still emit radiation levels above background. To
minimize radiation exposures we have used ``and'' in the paragraph
above to ensure that the LLMW does not emit radiation that is above
background levels as measured by appropriate monitoring equipment. \1\
We invite comment on how waste being stored for decay under 10 CFR
20.2001(a)(2) and 10 CFR part 35 can be completely decayed while at the
same time reenter RCRA Subtitle C without a gap in time during which
the waste is not regulated as either hazardous or radioactive. Please
indicate in your comment what mixed wastes you generate that have
radionuclides with activity levels which would not qualify for the
conditional exemption we are proposing if it were based on whichever
occurred first--ten half-lives of decay or not registering above
background levels.
[[Page 63472]]
Also indicate how this limitation would affect your management of the
waste.
---------------------------------------------------------------------------
\1\ Note: The NRC licensee is not required to immediately
monitor the waste after decay of 10 half-lives. Prior to monitoring
there may be an interval when the waste is hazardous only. However,
the lower cost of diposing of hazardous rather than LLMW should
serve to encourage prompt monitoring and disposal.
---------------------------------------------------------------------------
3. What Are Your On-Site Treatment Options?
We are proposing to allow the on-site treatment of LLMW during a
storage exemption from hazardous waste regulation under the conditions
listed above for the storage conditional exemption. In addition, the
mixed waste must be: (a) treated on-site; and (b) physically or
chemically treated in a tank or container in accordance with the
generator's NRC license requirements. If these conditions are met, then
a RCRA treatment permit during storage will not be required.
RCRA allows accumulation and treatment of hazardous waste in a tank
or container within 90-270 days of generation of the waste without a
permit provided generators comply with the standards for storage tanks
and containers. An NRC license may allow solidification,
neutralization, or other stabilization of LLW in the tank or container.
If the waste also includes RCRA characteristic or listed hazardous
material, then a RCRA permit is normally required if the waste is not
treated within 40 CFR part 262 accumulation time limits. In this
proposal, we are not requiring a RCRA treatment permit from a generator
if the on-site treatment is allowed for LLW under the facility's NRC
license. Such treatment may, for example, allow cement to be added to a
legacy waste (see definitions at the beginning of this proposal) stored
in a container such that it will then be able to meet LDR requirements.
Or a mixed waste may be treated chemically to neutralize its
corrosivity so that it may be safely stored in a tank or container.
EPA's regulations governing on-site storage and treatment in tanks
and containers are generally the same as NRC's. Without the proposed
conditional exemption, treatment of legacy waste would require a
generator to obtain a permit to address an expired RCRA Part 262
accumulation time limit. We are proposing to allow the types of
treatment included in NRC licenses to manage the radioactive material
in the waste. We believe that additional RCRA requirements would not
increase protection of human health and the environment. Nevertheless,
more specific controls are appropriate for some forms of treatment,
such as thermal treatment (as defined in 40 CFR 260.10) or
incineration, because of the complexity of the treatment and the
specificity of RCRA requirements. (Thermal treatment is not now allowed
under RCRA without a permit even if done within 90 days of generation.)
For that reason, under the conditional exemption for on-site storage of
LLMW, we are not including on-site thermal treatment of LLMW by
generators without an appropriate RCRA permit.
B. What is Our Low-Level Mixed Waste Storage and Treatment Proposal?
We describe our proposal in the following sections which cover what
generators and wastes are eligible, what conditions must be met, and
how an exemption is claimed.
3. Which Generators and Wastes Will be Eligible for the Storage and
Treatment Exemption?
Generators of LLMW regulated by the NRC will be eligible for the
proposed storage exemption. The types of facilities that may be
affected include nuclear power plants, fuel cycle facilities,
pharmaceutical companies, medical and research laboratories,
universities and academic institutions, hospitals, and some industrial
facilities. We describe eligible wastes in Sec. 266.225 of this
proposal.
4. What Conditions Must You Meet as a Generator?
Conditions in Sec. 266.230 which you, as a generator, must meet to
qualify for the exemption include the following:
(a) You must have a valid NRC license. Our proposed exemption is
predicated on our finding that NRC oversight provides the regulatory
control necessary to ensure that the hazardous portion of an exempted
waste will not be mismanaged. It is the NRC license, issued and
enforced by an independent government agency, that is the basis of the
proposed exemption.
(b) You must comply with the requirements of your NRC license for
storing low-level mixed waste. We believe that adherence to NRC
licensing conditions is important to the safe storage of the hazardous
portion of the LLMW stream. As a result of comments we received on the
ANPR, we are now requesting comment on whether we should increase the
specificity of this condition by limiting it to the kinds of NRC
requirements that if violated may result in endangerment of human
health or the environment. For example, we could include violation of
those terms and conditions that result in filing a report under 10 CFR
Subpart M, Section 20.2201-2203. We seek comment on whether this
condition should be: broad (and include the loss of the exemption if
any LLW storage requirement of the NRC license is not met); or more
specific (and limit the loss of the exemption to those violations which
may result in an environmental impact).
(c) You must comply with Sec. 266.225 which requires that the
eligible waste be subject to regulation by the NRC. The proposal also
requires that the waste be generated ``on-site'' at the facility
seeking the exemption. (See 40 CFR 260.10 f.) For the purposes of this
conditional exemption, we consider your mixed waste to be on-site if
you can move your waste without a RCRA manifest from a storage unit at
the point of generation to another storage/accumulation area which you
own or operate (with the same RCRA ID number). For example, a LLMW
generator may transfer waste from one location to another storage
location so long as both the locations are owned by the same entity
such as a university, or pharmaceutical firm, and are operated under
the same RCRA ID number or same NRC license. Thus, under our proposal,
commercial mixed waste processing facilities will not be eligible for
this exemption for wastes received from their customers. Finally, the
proposal requires that the waste be compatibly stored in tanks, or
containers. We do not believe other storage units (for example, surface
impoundment units) are appropriate storage devices under this proposal.
Commenters on the ANPR suggested we extend the conditional exemption to
wastes stored ``off-site.'' We request comment regarding both the
definition of ``on-site'' and the appropriateness of extending a
conditional exemption to facilities that own/operate storage units that
do not meet our current definition of ``on-site.'' This conditional
exemption applies only to stored waste which is generated and owned by
the same facility. We also seek comment on whether the conditional
exemption should include a storage facility which serves as a
consolidation point for a single entity. For example, a university
storage facility that serves several noncontiguous laboratories on a
campus which have the same NRC license, or which have the same RCRA
hazardous waste generator identification number.
(d) You must notify us (the EPA Region or the RCRA Subtitle C
Authorized State Agency) by certified mail, return receipt requested,
that you claim the exemption for a storage unit containing low-level
mixed waste. Your notification must be signed by the owner, operator,
or other appropriate official of your facility. Notification of your
claim should be made either within 90 days of the effective date of
this rule in your State or within 90 days of when a storage unit is
first used to store low-level mixed waste for which
[[Page 63473]]
you claim a conditional exemption. This requirement provides us with a
record of who has made a claim for the exemption. Your notification is
self-implementing. You will not receive a notice of approval from EPA
or your State Agency.
(e) You must certify that facility personnel who manage stored LLMW
are appropriately trained. Personnel managing the hazardous portion of
the waste should be trained in identifying and providing initial
response to a release of chemical constituents as well as in
radioactive waste management. As part of the notification process, you
must certify that personnel managing the hazardous portion of stored
LLMW are appropriately trained. We are proposing that the basic
personnel training requirements found at 40 CFR 265.16(a)(3) satisfy
the training condition for chemical waste management.
(f) You must: inventory the LLMW at least annually; inspect the
mixed waste at least quarterly for compliance with the conditions of
this section; update your records of conditionally exempt LLMW at least
quarterly; and keep records of the findings of these inventories and
inspections. You must maintain records for three years after the waste
is sent for disposal or in accordance with NRC requirements whichever
is longer. An important part of assuring that you comply with the
conditions proposed in today's rule is our requirement that you perform
regular inspections of the facilities storing exempted waste, as well
as inventory the waste to prevent loss or other mismanagement. Records
of these activities must be kept long enough to assure us of consistent
compliance with exemption conditions.
(g) You must maintain an accurate emergency contingency plan which
you develop and provide to all local authorities who may have to
respond to an emergency. Your contingency plan must describe emergency
response arrangements with local authorities, describe evacuation
plans, list the names, addresses and telephone numbers of all facility
personnel qualified to work with local authorities as emergency
coordinators, and list emergency equipment. (The majority of mixed
waste generators have a plan that describes many of these emergency
response arrangements, see 40 CFR part 265, subpart D.)
We propose these conditions as the minimum necessary to ensure that
LLMW is properly managed, so as to avoid potential adverse impact on
human health or the environment. We believe that these conditions will
provide a strong incentive to properly manage the waste, and that the
regulatory framework imposed by the NRC makes mismanagement of these
wastes unlikely. Because of the importance of the conditions, we
propose that if you (as a generator) fail to meet any one of them, then
your waste will no longer be conditionally exempt and will be subject
to full RCRA Subtitle C regulation.
The exemption does not replace the permitting requirements
currently required for treatment, storage, and disposal facilities
(TSDFs) who manage other generator's wastes and who typically manage
much larger volumes of waste. By limiting the exemption to generators,
we believe that the likelihood of significant human health or
environmental consequences of mismanagement will be minimal due to the
amount of waste generated at these sites. Nevertheless, we request
comment on whether we should include in the conditional exemption for
storage those mixed waste treatment facilities that manage wastes from
other generators. Comments received on the ANPR generally did not agree
with including such a TSDF in the entities eligible for a conditional
exemption for storage of LLMW. (See docket for summary of ANPR
comments.) We are interested in additional information regarding the
safety of commercial TSDFs that could provide a basis for expanding the
scope of the exemption to include off-site storage at commercial TSDFs.
3. Whom Should You Notify if You Want to Claim an Exemption?
To claim a conditional exemption for stored low-level mixed waste
you, as the generator, must certify that the facility and waste meet
all the proposed conditions in Sec. 266.230 and must notify us (EPA or
the Authorized State Agency) of each storage unit where waste will be
stored for which you claim a conditional exemption. Such notification
will enable us to know which wastes and which storage units are
conditionally exempt. We propose that you, the owner or operator of a
facility generating low-level mixed waste, notify us in writing either
within 90 days of the effective date of the final rule in your State,
or within 90 days of when a storage unit is first used to store LLMW
for which you claim a conditional exemption. (See the list of
conditions a generator must meet to qualify for a conditional exemption
for stored LLMW.) This notification is self-implementing, although we
may use our inspection and information collection authorities to verify
whether you are meeting the conditions.
You must report in writing to us (or a RCRA Authorized State
Agency), with a copy to NRC, any failure to meet a condition within 30
days of learning of the failure. If the failure to meet the conditions
has the potential for endangering human health or the environment then
you, the generator, must notify us orally within 24 hours and take
steps outlined in your emergency contingency plan. This requirement is
to ensure the timely notification and response of emergency personnel.
An oral or written report regarding failure to meet the conditions does
not relieve you, the generator/licensee, of NRC requirements. You must
also notify the NRC if the failure triggers notification requirements
under NRC regulations for the radioactive material.
4. What Records Must You Keep for the Exemption?
You must keep records of your initial notification, as well as your
LLMW inventories and inspections. Records must be kept for three years
after the stored waste is sent for treatment or disposal, or in
accordance with NRC requirements, whichever is longer. You must update
your records regularly. At a minimum, you must inventory the waste
annually, inspect the waste quarterly, and update records of
conditionally exempt LLMW quarterly. An important part of assuring that
a generator is complying with the conditions proposed in today's rule
is requiring the generator to perform regular inspections of the units
storing exempted waste, as well as inventorying the waste to prevent
loss or other mismanagement. Records of these activities must be kept
to assure us of consistent compliance with exemption conditions.
5. How Can Your Stored Waste Lose the Exemption?
Your stored waste will lose a conditional exemption if, after
claiming a conditional exemption, you subsequently fail to meet one or
more of the conditions. If your stored waste no longer meets one or
more of the exemption conditions, your mixed waste may be fully
regulated under RCRA Subtitle C as a hazardous waste as described in
Sec. 266.235. (This consequence and its ramifications for mixed waste
management are discussed under the notification, and implementation and
enforcement sections of the proposed rulemaking.)
[[Page 63474]]
6. Can Your Exemption be Reclaimed if You Fail to Meet a Condition?
This proposed conditional exemption rulemaking envisions a self-
implementing process. The exemption is lost at the time of non-
compliance. EPA needs to take no action to remove the exemption.
However, if your waste loses the conditional exemption, you may reclaim
your exemption if you return to compliance with all conditions in
Sec. 266.230. You must send the RCRA program agency a written notice
that you are reclaiming your exemption. Your notice must do the
following:
Explain the circumstances of the failure which caused your
waste to lose the exemption;
Certify that your waste is in compliance with all
conditions as of the date you reclaim the exemption;
Demonstrate that the failure is not likely to recur
because of specific steps (list them) you have implemented in your
LLMW-related compliance activities; and
Include any additional information you would like us to
consider regarding your reclaim notice.
If subsequently we find that a reclaimed conditional exemption is
inappropriate because it is not protective of human health or the
environment, then we may terminate the conditional exemption which was
reclaimed.
C. How Will Implementation and Enforcement of the Conditional
Exemption for Storage and Treatment of LLMW Take Place?
1. Is This a Self-Implementing Rule?
Yes, a conditional exemption is in effect as of the date of the
claim, and is lost automatically when the generator fails to comply
with the conditions.
2. How Will We Enforce the Proposed Storage Exemption?
We will consider non-compliant facilities to be subject to RCRA
Subtitle C from the time of noncompliance. Utilities or other LLMW
generators that claim the conditional exemption, but fail to store and/
or treat the LLMW in compliance with the provisions of the exemption,
would no longer be exempt from the applicable provisions of RCRA.
Moreover, imminent and substantial endangerment provisions under
Sec. 7003 of RCRA will continue to apply to conditionally exempt mixed
waste as a safeguard in the unlikely event of a release which could
pose a health or environmental threat.
We are proposing the storage exemption because of the regulatory
framework in place governing low-level radioactive component of LLMW.
The NRC has a ``General Statement of Policy and Procedure for NRC
Enforcement Actions'' (NUREG-1600) which states the NRC's policy
regarding enforcement. This policy provides significant consequences
for violating NRC or license requirements and takes into consideration
the specific circumstances of a particular case. For example, if a
nuclear power plant is found to have violated the NRC license, or tie-
down conditions of the license (see definition at the beginning of this
preamble), the nuclear power plant (and the responsible person) may be
subject to substantial civil and criminal penalties. Based on these
provisions, licensed facilities have incentives to properly manage
stored waste.
D. What Background Information Did we Use for This Proposal?
To determine the protectiveness of NRC management requirements for
LLMW, we researched the LLW storage provisions of NRC and material
licenses, reviewed NRC compliance data on violations related to storage
of LLW, and compared the regulatory framework of EPA and NRC related to
waste management. Overall our comparison studies found that safeguards
were in place which would ensure the protection of human health and the
environment during storage of LLW and LLMW.
Review of NRC License Requirements
We researched NRC's regulatory and licensing framework under which
low-level waste (LLW), and therefore LLMW, is stored by waste
generators. We examined provisions concerning the on-site storage of
LLW to assess whether these requirements are protective of human health
and the environment with respect to potential releases of hazardous
waste constituents. We found that NRC and Agreement States regulate
licensees through the issuance of performance-based regulations,
regulatory guides, generic communications (Generic Letters and
Information Notices), and NUREGs. NRC uses these tools to guide
licensees on how to meet the intent of the regulations. These documents
work together to enable the NRC and Agreement States to ensure that
nuclear power facilities and other licensees are operating in a safe
manner. For example, on November 10, 1981 NRC issued Generic Letter 81-
38, ``Storage of Low-Level Radioactive Wastes at Power Reactor Sites,''
and enclosure, ``Radiological Safety Guidance for Onsite Contingency
Storage Capacity.'' In this generic letter, NRC discussed its position
on proposed increases in storage capacity for low-level wastes
generated by normal reactor operation and maintenance and stated that
the safety of the proposed increase in capacity must be evaluated by
the licensee under the provisions of 10 CFR 50.59. The NRC also
attached a radiological safety guide to this letter. This guide was
developed for the design and operation of interim contingency low-level
waste storage facilities, and stated that necessary design features and
administrative controls would be dictated by such factors as the waste
form, concentrations of radioactive material in individual waste
containers, a total amount of radioactivity to be stored, and
retrievability of waste. NRC also noted that this guidance document
should be used in the design, construction and operation of storage
facilities and that the NRC would judge the adequacy of 10 CFR Part
50.59 evaluations based on compliance with the guidance. (NRC also
referenced IE Circular No. 80-19, dated August 22, 1980, as providing
information on preparing 50.59 evaluations for changes to radioactive
waste treatment systems).
Though NRC regulations found in the Code of Federal Regulations
concerning the generation, storage, and treatment of LLW are
performance-based (for example, no releases/leaks), rather than
prescriptive as in RCRA (where types of drums and waste management are
specified to prevent leaks), the NRC-enforceable tie-down conditions
found in individual licenses based on our review provide adequate
protection to human health and the environment from exposure to
hazardous wastes during storage as well as RCRA regulatory
requirements. A compilation of the NRC documents that we reviewed can
be found in the docket for today's proposal. (See Ref. 3, EPA's
compliance history review.) A discussion of our evaluation of NRC's
licensing framework and how it provides protection of human health and
the environment when compared with the RCRA regulations is discussed in
a later paragraph.
Research on Compliance Records of NRC and Agreement State Licensees
In addition to comparing NRC's and our storage requirements, we
researched compliance records related to NRC radiation controls for
nuclear power plants and other licensees, to determine if there were
storage-related releases or mismanagement of LLW. To provide a baseline
for the comparison of NRC LLW violations, we queried two of EPA's
generator information management systems--the Biennial
[[Page 63475]]
Reporting System (BRS) and the Resource Conservation and Recovery
Information System (RCRIS)--to obtain the number of RCRA violations.
Using BRS data for 1995, 18,497 facilities were identified as
having generated hazardous waste (including small quantity generators).
These ``records'' were merged with the information from RCRIS and then
sorted by RCRIS violation area codes. The violations were sorted by
group (generator, other, treatment, and transporter) and by state.
Based on this process, we identified a total of 4,547 violations by a
total of 1,352 facilities (or 7.3% of the 18,497 facilities). Of the
4,547 violations, 3,355 resulted from the noncompliance with the
generator requirements (manifesting, record keeping, time-in-storage,
reporting, etc.), and of the 3,355 generator violations, 142 involved
mixed waste.
To review the NRC facility compliance records, we reviewed a number
of enforcement reports for both NRC enforced and Agreement State
enforced licensing programs. We did not review every licensee's record.
However, enough data were reviewed to demonstrate that the number of
violations reported (on a percentage basis) by NRC for both nuclear
power reactors (directly licensed by NRC) and material licensees
(generally licensed by Agreement States) compares favorably with the
percentage of violations reported by EPA. Fines, penalties, and other
consequences serve to deter violations. Based upon the compliance data,
the industries' record is good and mismanagement of stored mixed waste
is unlikely. We conclude that regulation under Subtitle C is unlikely
to significantly improve that record.
For further information on applicable NRC regulations refer to 10
CFR part 20 subpart I. Information regarding NRC's regulations, or
guidance documents may be obtained by either contacting the NRC Public
Document Room, at 2120 L Street, NW, Lower Level, Washington, D.C.
20037 (202-634-3273 or 800-397-4209, Monday through Friday, 8:30 a.m.
to 4:15 p.m.) or by visiting NRC's Internet web page at http://
www.nrc.gov.
Comparison of Regulatory and Management Requirements of EPA & NRC
We compared NRC documents used in license preparation with the
permitting framework established under RCRA. The technical design and
operating standards of the NRC licensing program meet or exceed RCRA
standards in virtually all respects, though there were differences in
certain procedural requirements and in areas unrelated to actual
discharge of hazardous waste from storage (e.g., unit closure
requirements). Based on our review, we do not believe these differences
undermine protection of human health and the environment, or that the
superimposition of RCRA specific standards significantly increases
protection. (See Ref. 4, EPA's comparison of EPA and NRC storage
requirements). Relevant NRC licensing criteria are in the docket for
today's rulemaking, and may also be obtained by contacting the NRC
public document room at 202-634-3273 or accessing the NRC web site
(http://www.nrc.gov). These criteria, while designed primarily to
minimize radiation risk, also address risk posed by byproduct material
in general, including hazardous constituents. Because of the unique
nature of mixed wastes, migration of hazardous constituents does not
occur except in the presence of radionuclides. Therefore, activities
performed by a licensee to safely store or address the release of the
radioactive portion of the mixed waste will also result in the safe
storage of the chemical components of the LLMW matrix.
The applicability of NRC licensing standards to mixed waste in
storage is the major reason for our belief that--in specified
circumstances--it is not necessary to also subject these wastes to RCRA
storage regulation.
Conclusions
These studies demonstrate that the NRC regulatory and licensing
program will adequately control risks from hazardous constituents as
well as radioactive material. There are safeguards in place based upon
the NRC regulatory framework during the conditionally-exempt storage of
LLMW. As stated by the court in the MMR ``where a waste might pose a
hazard only under limited management scenarios, and other regulatory
programs [the NRC] already address such scenarios, EPA is not required
to classify a waste as hazardous waste subject to regulation under
Subtitle C.''
E. What Was the Response of Commenters to the ANPR?
On March 1, 1999, we published and advance notice of proposed
rulemaking (64 FR 10063) for three reasons. First, we wanted to
introduce potential strategies for making our regulations more flexible
for generators that treat and/or store LLMW on site. Second, we asked
members of the regulated community and general public for feedback on
our strategies and whether we should consider other approaches for
providing relief from the dual, EPA and NRC, regulation of mixed waste.
Lastly, we asked LLMW generators to provide us with additional
information on the volumes, composition, and management practices
(including procedures and associated costs of treatment and storage) of
their mixed waste.
We received comments from 69 commenters who represented academia,
TSDFs, contractors, federal agencies, medical institutions, industrial
users, the nuclear power industry, the public, state governments, and
trade groups/law firms.
Availability of Comment Summary
Copies of all the public comments received by EPA, along with our
comment summary document are available for viewing in either hard copy
or electronic format by following the instructions presented in the
beginning of this document. ( See Ref. 5, a summary of comments
received on the ANPR.) A detailed response to significant comments
received on the ANPR and the proposal will be available in the docket
for the final rulemaking.
1. What Comments Did We Receive Concerning a Conditional Exemption for
Storage?
We received a favorable response from most commenters concerning a
conditional exemption for storage. The vast majority (87%) of the
commenters supported the concept of providing regulatory flexibility to
generators of LLMW. Many of these commenters made suggestions for
either increasing or decreasing the level of flexibility and the degree
to which EPA should remain involved in the implementation and
enforcement of any conditional exemption. Other commenters (6%)
provided suggestions for improving the effectiveness of the proposed
approaches, but remained silent as to whether they supported the
overall concept. The remaining commenters (7%) opposed EPA's concept
for various reasons.
We received 47 comments supporting the concept of a conditional
exemption for on-site storage of LLMW at nuclear power plants. Several
commenters, primarily universities, suggested the conditional exemption
should be extended to wastes stored ``off-site.'' Thirty-four (72% of
the supportive commenters) commenters believed that the scope of the
conditional storage exemption should include all material licensees
that have either a NRC or Agreement State license for LLMW. Several
commenters noted that non-reactor facilities generate most of the mixed
waste in the United States and
[[Page 63476]]
are faced with the same compliance and management issues as reactor
facilities.
We also received comments from six commenters that the conditional
exemption for storage should not be extended to commercial TSDFs
because these facilities provide such services and have RCRA Subtitle C
permits to do so. As such, they require no relief. Commenters stated
that: such facilities are in the business of managing LLMW for
compensation and should be regulated accordingly; and the duration of
storage at such facilities may be driven by the time requirements under
the facility's RCRA permit and an exemption that would void those time
frames could potentially affect the facility's ability to control waste
inventory.
2. What Were the Comments on Decay-In-Storage?
We received 32 comments on the proposed conditional exemption for
Decay-in-Storage (DIS). All commenters supported relief in this area.
Two commenters opposed the DIS proposal laid out in the ANPR. Both of
these commenters, stated that they preferred a strategy with more
flexibility to manage wastes that (1) have longer half-lives than those
prescribed by the NRC, (2) are difficult to dispose of, (3) do not yet
meet NRC's criteria of ``cannot be distinguished from background''
after 10 half lives, and (4) begin decay at different times.
We received 23 comments on when LLMW would reenter the RCRA system.
Seventeen commenters supported the strategy to bring waste back into
the RCRA system once the LLMW had either ``decayed'', ``decayed to
background levels'', or ``decayed to insignificant levels.'' One
commenter noted that often non-detectable background levels are not
specifically established by the NRC and vary from state to state, so
background levels at one facility may be different than background
levels at another facility. This commenter also stated that since AEA
low-level waste requirements protect the waste after it decays, as well
during the decay process, there should be no urgency to revert back to
RCRA management. A different commenter echoed the same concern that
often ``indistinguishable from background'' is not the same as ``no
radioactive material in waste'' which is a requirement prior to
acceptance at many commercial waste treatment facilities. This
commenter added that EPA should make sure that once the waste decays to
NRC license levels (indistinguishable from background) it must be
accepted by commercial treatment facilities, even if the radiation
survey finds extremely small concentrations of radioactive material in
the waste.
3. What Comments Did We Receive Concerning Treatment of Waste in
Storage?
We received 36 comments regarding the scope of the exemption. Of
these comments, 11 commenters supported the conditional exemption, 23
supported the conditional exemption with recommendations to expand the
exemption, and two specifically opposed the conditional exemption. One
commenter believed that the treatment of mixed waste should be
performed on-site in a tank, container, or containment building in
accordance with the generator's NRC license requirements. Other
commenters believed that EPA should not limit the exemption to
treatment in containers, tanks, or containment buildings. One such
commenter supported a treatment exemption for treatment in enclosed
units with filtered exhaust systems. Other commenters noted that simple
treatments, such as neutralization of acids and bases, ion exchange,
small scale distillation, and similar measures performed by qualified
and authorized personnel should be included without restriction.
Another commenter noted that the definition of ``tank or container''
should include, but not be limited to, small-volume containers such as
carboys, liquid scintillation vials, and other commonly-used
containers.
4. What Comments Did We Receive Concerning Possible Conditions for a
Storage Exemption?
We received numerous comments regarding the possible conditions
that must be met to qualify for an exemption. The most significant
conditions discussed by the commenters involved the notification and
identification of units, and noncompliance. We discuss these categories
of comments below.
a. What did commenters say concerning notification and identification
of units?
We received comments from 22 commenters regarding the proposal to
establish notification requirements for LLMW facilities applying for
conditional exemption from RCRA hazardous waste regulations. Eleven
commenters endorsed the proposal. Another seven commenters recommended
modifications to the proposal. Four commenters opposed the proposal,
maintaining that the Agency identification number in RCRA or facility
designation in existing NRC licensing requirements served this purpose.
(See ``Summary of Comments from March 1, 1999 ANPR'' in docket.)
Of the 11 commenters who endorsed the proposal, two commenters
agreed that requiring the owner/operator to notify EPA within 90 days
is a reasonable requirement. Another commenter pointed out that
notification was essential to help prevent confusion regarding the
regulatory status of a particular unit, particularly during an EPA
inspection. The other nine commenters contended that the proposal
establishing the notification requirement and the proposal requiring
the owner/operator to possess a valid NRC and Agreement State license
are the only two conditions that are necessary to exempt facilities
from RCRA regulations. Of the seven commenters who suggested
modifications to the proposal, four believed that the notification
requirements should be kept as simple as possible.
b. What were commenters views concerning non-compliance and RCRA
enforcement?
Sixteen commenters addressed the proposal dealing with violations
and the related proposal to include a reporting requirement as a
condition of the exemption. One commenter endorsed the overall
proposal, while seven commenters either sought clarifications about the
proposal or suggested modifications to it. Eight commenters opposed the
proposal.
Of the seven commenters who sought clarifications about the
proposal, four commenters said we should consider revocation of the
conditional exemption only for serious or repeat violations, and
especially in instances where environmental and health and safety
issues were involved. Of the eight commenters who opposed the proposal,
six believed that notifications should be limited to events that are
reportable under the conditions of the applicable NRC license.
c. What did commenters say about notification of violations & reporting
requirements?
Two commenters supported reporting of noncompliance with the
conditions of the exemption. One commenter agreed that any releases
with potential for significant environmental impact should be reported
to EPA as is currently required for radionuclides and other hazardous
materials. One commenter agreed with the proposed requirement for oral
reporting within 24 hours for violations of the NRC license that
results in endangerment to human health and the environment, noting
that
[[Page 63477]]
this provision is consistent with existing NRC requirements. However,
this commenter did not agree with the requirement for a written report
within 5 days, noting that the standard NRC requirement for submitting
a written report to NRC is 30 days. The commenter recommends that the
reporting requirements should not be more stringent than NRC
requirements.
VI. Transportation and Disposal Conditional Exemption For Mixed
Waste and Eligible NARM
Regarding transportation and disposal, we are proposing regulatory
flexibility related to the manifest, transportation, and disposal of
treated LLMW or eligible NARM. In the sections below, we will discuss
the following topics: the regulatory relief we are proposing; the
applicability of the proposal; the point at which the exemption would
apply; implementation and enforcement aspects of the proposal; the
rationale behind the requirements that we are proposing; the technical
analysis we have conducted on the proposed option; and stakeholder
issues.
A. What Regulatory Relief are we Providing for Transportation and
Disposal?
We are proposing to conditionally exempt LLMW or eligible NARM from
RCRA Subtitle C hazardous waste manifest, transportation, and disposal
requirements if all of the proposed conditions are met. To be eligible
for the exemption, the RCRA Subtitle C exempted waste must be managed
as a low level radioactive waste (LLW) or NARM waste in accordance with
NRC, or Agreement State regulations. This proposal is based on our
determination that LLMW or eligible NARM mixed waste, if managed
pursuant to the NRC or Agreement State regulations for manifest,
transportation and disposal of LLW, would provide sufficient protection
of human health and the environment during the manifest, transportation
and disposal of a treated RCRA hazardous waste (See section VI. G. for
details).
With today's action, we anticipate that MW generators and treaters
would have considerably more disposal capacity available to them.
Currently, there is only one commercial mixed waste disposal facility
while there are three LLRWDFs licensed by the Agreement States.
Consequently, commercial MW generators, with an estimated annual waste
generation rate of approximately 140,000 cubic feet of LLMW, would be
able to move those wastes that can be treated to meet LDR standards to
disposal.
The conditions for the transportation and disposal exemption are
listed in Sec. 266.315 which includes the following:
Meet LDR treatment standards in accordance with one of the
following:
Treatment at a RCRA-permitted mixed waste treatment
facility;
Treatment on site under the provisions of the conditional
exemption from the RCRA storage and treatment requirements proposed
today for NRC or Agreement State licensees; or
Without treatment, if the ``as generated'' hazardous waste
mixed with LLW or eligible NARM meets the LDR treatment requirements.
Send a notification package to the following agencies and
receive written confirmation that they have received the package:
--The RCRA program agency with jurisdiction over your MW;
--The RCRA program agency in the State where the NRC or Agreement
State-licensed low level radioactive waste disposal facility (LLRWDF)
receiving your waste is located; and
--NRC or Agreement State Agency regulating/licensing the LLRWDF
receiving your waste for disposal.
Meet NRC 10 CFR 71.5 or Agreement State transportation
requirements, and NRC 10 CFR 20.2006 or Agreement State manifest
requirements even if you self-regulate under the authority of Atomic
Energy Act.
Ensure that the exempted waste (meeting LDR treatment
standards) is disposed at a LLRWDF pursuant to NRC or Agreement State
regulations in accordance to 10 CFR 61. (We are requiring that the
RCRA-exempt LLMW, or eligible NARM, be disposed in containers that meet
the waste packaging, waste form and waste integrity requirements of
NRC.)
Retain all records related to the conditional exemption
(including the necessary LDR records) as specified in Sec. 266.365.
Exempted waste would continue to be regulated by NRC or Agreement
State during subsequent transportation and disposal. We believe NRC or
Agreement State regulations for the manifest, transportation, and
disposal provide adequate protection for human health and the
environment from the risks posed by LLMW treated to LDR treatment
standards. For transportation, as discussed in VI.E.3., treating waste
to LDR treatment standard levels reduces toxicity and mobility of
hazardous constituents remaining in the waste. Thus, transportation of
the treated waste according to the requirements for low level
radioactive waste would be adequate. In addition, the exempted waste
must not be in a liquid form, as specified by NRC or Agreement State
regulations for the disposal of LLW. Therefore, if spilled during
transportation, the exempted waste could be contained relatively
easily. As a result, the likelihood of exempted waste contaminating the
environment and endangering human health during transportation would be
low.
We also believe that LLMW, or eligible NARM, meeting LDR treatment
standards poses insignificant risks when disposed of in LLRWDFs
according to the requirements set by NRC or Agreement State according
to 10 CFR 61. Our technical analysis showed that NRC or Agreement State
requires adequate controls to protect against radiation hazards at
LLRWDFs. We believe that these landfills would also protect against the
chemical hazards of LLMW in the absence of RCRA disposal requirements,
so long as the LLMW, or eligible NARM, meets the LDR treatment
standards and is disposed at a LLRWDFs licensed by NRC or an Agreement
State. (See discussion in
VI. G.).
B. Applicability of the Proposal
1. To What Types of Waste Does This Rule Apply?
The conditional exemption for disposal applies only to LLMW (a RCRA
hazardous waste as defined in 40 CFR part 261 mixed with a low level
radioactive waste as defined in 10 CFR 61.2) or eligible NARM (as
defined in this proposal--a RCRA hazardous waste mixed with a NARM
waste which meets the acceptance criteria of a LLRWDF licensed by NRC
or an Agreement State). The exemption does not apply to a RCRA
hazardous waste mixed with high level radioactive waste, or transuranic
waste.
We are proposing to include eligible NARM waste in the conditional
exemption at the request of a state agency regulating the radioactive
material. (See Ref.11.) NARM waste is not regulated by NRC. Neither is
NARM currently regulated under RCRA Subtitle C authority. In practice,
NARM waste has been regulated by the States under State law, or by DOE
under DOE Orders. Most of the states are currently regulating NARM
waste under their radiation control program. NARM waste mixed with a
RCRA hazardous waste is managed under both RCRA and state radiation
control programs in most states. Because of this dual regulation, we
are proposing that the exemption
[[Page 63478]]
also apply to eligible NARM waste. However, we are requiring that the
NARM waste meet the acceptance criteria of a LLRWDF licensed by NRC or
an Agreement State in accordance with 10 CFR 61. This restriction is
necessary because our technical analysis is based in part on licensing
requirements under 10 CFR 61. We are seeking comments and supporting
information concerning the applicability of this transportation and
disposal proposal to eligible NARM waste.
2. Who Could Benefit From this Proposal, and What is the Profile of
Their Waste?
All generators of LLMW or NARM waste can potentially benefit from
this proposal, if their MW meets all the specified conditions. Some
examples of these generators are listed at the beginning of the
preamble in Table 1 under ``Who is Eligible for This Rule''. We
estimate that this rulemaking could apply to the LLMW generated and
stored by over 1,000 industrial facilities and laboratories in the U.S.
Approximately 108,000 cubic feet of LLMW is generated annually by these
facilities, and an additional 4,000 cubic feet of legacy waste is
currently in long-term storage without options for treatment and/or
disposal. In addition, DOE generates approximately 400,000 cubic feet
annually, with 4.4 million cubic feet of legacy waste in storage. (See
Ref.14 and 17 for details on waste volumes and cost-benefit analysis.)
According to the available information, DOE operations currently
face mixed waste disposal capacity issues similar to those experienced
by the commercial sector. This proposal would only provide partial
relief for DOE due to concerns expressed by the States regarding
disposal of the RCRA-exempted LLMW at DOE's LLRWDFs (see VI. H).
However, DOE has been working with the States to establish additional
disposal capacity for its LLMW.
3. What Other Regulatory Relief Provisions May Apply?
Generators of LLMW or NARM that is not eligible for the proposed
conditional exemption for transportation and disposal may petition EPA
to get their specific waste stream delisted from RCRA Subtitle C under
the RCRA Delisting Program (Contact the EPA Regional delisting
coordinator for details.)
C. What is the Point of Exemption?
We are proposing that LLMW or eligible NARM be exempted from RCRA
Subtitle C requirements once the generator has met all pre-transport
requirements under Sec. 266.315. Specifically, the point of exemption
occurs when the waste is placed on the transportation vehicle bound for
disposal at an NRC or Agreement State-licensed LLRWDF. A shipment
``bound for disposal'' includes any shipment originating from the
generator that is transported by one or more transporters. However, the
shipment must not go to any other facility en route to the designated
LLRWDF, other than to a transfer facility meeting the requirements of
40 CFR 263.12. The exempted waste would not have to be managed
according to RCRA Subtitle C requirements during transportation and
final disposal at the LLRWDF. We are proposing the point of exemption
as described above for the following reasons:
The exempted waste will continue to be managed in
accordance to the AEA because of the radioactive component of the
waste.
The risks posed by exempted waste when transported and
manifested are adequately addressed by the NRC transportation and
manifest requirements.
The risks posed by the exempted waste when disposed of in
a LLRWDF are adequately addressed by the requirements set by NRC or an
Agreement State in accordance with 10 CFR 61.
The exemption would reduce the generator's requirements to
comply with duplicative regulations during transportation and disposal,
in that NRC regulations have been shown to be as protective as RCRA
regulations.
In conclusion, we set the point of exemption as proposed primarily
because we believe that transportation, tracking, and disposal of waste
meeting the LDR treatment standards can be safely managed according to
similar regulations of NRC. The end result is that regulatory burden
can be reduced because NRC regulations provide comparable protection.
D. Implementation and Enforcement
1. How Will the Transportation and Disposal Conditional Exemption Be
Implemented?
We are proposing that the transportation and disposal conditional
exemption be self-implementing. No prior governmental approval or
review of documentation is required before a generator's qualified
waste exits RCRA Subtitle C manifest, transportation, and disposal
requirements. This basic framework is consistent with most other
hazardous waste exemptions and exclusions, such as the LDR program,
where generators and treaters can certify that their hazardous waste
meets LDR treatment standards and qualifies for land disposal, without
prior governmental approval. Furthermore, it is also consistent with
provisions discussed in the HWIR99 notice related to the concentration
based exemption and exclusions from the definition of solid waste found
in 40 CFR 261.4(b).
We are proposing self-implementation for the transportation and
disposal conditional exemption because we believe that there is no
substantial advantage to be gained from requiring approval for an
exemption. Furthermore, the waste exiting RCRA requirements would
continue to be managed under an alternate regulatory program (NRC or
Agreement State regulations) that would provide comparable protection
for human health and the environment. This would also be true for
generators like DOE who self-regulate under the AEA, because their
waste would also be disposed at a LLRWDF regulated by NRC or Agreement
State. Therefore, we believe that under the proposed self-implementing
method, the waste will continue to be properly managed while the
regulatory burden is reduced. In addition, self-implementation has the
following advantages:
The exemption can take effect more quickly since approval
from the RCRA program agency is not necessary;
It reduces the generator's burden in claiming the
exemption;
It does not impose burden, or time restrictions on the
RCRA program agency to review the notification package while
maintaining jurisdiction; and
However, self-implementation does not mean that the RCRA program
agency does not have a role in overseeing the conditional exemption.
The RCRA program agency will be notified of the exemption, and will
have access to all documentation related to a claim (See VI.E.2 of this
preamble).
While the RCRA regulatory agencies may review a generator's
exemption claim, the lack of such a review would not be an indication
of their approval of the exemption claim. That is, the confirmation
that the RCRA program agency has received the exemption notification
package would not imply that they have reviewed or approved it.
Therefore, the exempted waste will still lose its exemption whenever it
is discovered that any of the required conditions is not met.
The RCRA program agency may conduct inspections and review the
records to determine whether the
[[Page 63479]]
generator is in compliance with the conditions of this exemption. The
RCRA program agency can use this information to support enforcement
action. Concerned citizens can bring to the regulator's attention any
circumstance that might aid authorities in monitoring and enforcement
efforts, or file a citizen suit under RCRA section 7002 against a
generator for failure to comply with the conditions for exemption.
2. What Happens if Your Waste No Longer Meets the Conditions of the
Transportation and Disposal Conditional Exemption?
When any exemption condition is not met, your waste loses its
exemption status and may be fully regulated under RCRA subtitle C as a
hazardous waste. You could also be subject to enforcement actions which
could result in fines and penalties. RCRA subtitle C sections 3008
gives us the authority to commence enforcement actions and assess fines
and penalties. Examples of activities that could lead to an enforcement
action against you include misclaiming of a conditional exemption,
failure to meet the conditions of the exemption, or providing erroneous
information to the disposal facility.
3. Are There any Additional Requirements You Must Meet?
Yes, the additional requirements of the transportation and disposal
conditional exemption are listed under the proposed sections
Sec. 266.325(b) and Sec. 266.330(b). Under these sections, you are
required to notify the LLRWDF of the exempt status of your waste before
you ship it to the facility for disposal (see VI.E.2.d). These
requirements are obligations that you are required to meet at all
times. While your exemption status would not change if a requirement
was violated, you could be subject to RCRA enforcement actions which
could result in fines and penalties.
4. Can Your Exemption be Reclaimed if You Fail to Meet a Condition?
This proposed conditional exemption rulemaking envisions a self-
implementing process. The exemption is lost at the time of non-
compliance. EPA needs to take no action to remove the exemption.
However, if your waste loses the conditional exemption, you may reclaim
your exemption if you return to compliance with all conditions in
Sec. 266.315. You must send the RCRA program agency a written notice
that you are reclaiming your exemption. Your notice must do the
following:
Explain the circumstances of the failure which caused your
waste to lose the exemption;
Certify that your waste is in compliance with all
conditions as of the date you reclaim the exemption;
Demonstrate that the failure is not likely to recur
because of specific steps (list them) you have implemented in your
LLMW-related compliance activities; and
Include any additional information you would like us to
consider regarding your reclaim notice.
If subsequently we find that a reclaimed conditional exemption is
inappropriate because it is not protective of human health or the
environment, then we may terminate the conditional exemption which was
reclaimed.
Alternatively, we could specify a waiting period for reclaiming a
disposal exemption. The waiting period would allow the regulatory
agency time to confirm that the violation has been corrected, and is
not likely to recur. This may be prudent when a conditional exemption
has been lost. Generally, it takes time to schedule and conduct
confirmation inspections. Self-implementation of your reclaimed
exemption may not allow the RCRA program agency time to confirm that an
infraction has been corrected. As a result, waste could be
inappropriately shipped off-site for disposal. Therefore, we are
seeking comment on whether to provide for a 90-day waiting period
before your reclaimed exemption for disposal is final.
5. What Can a LLRWDF do to Reduce the Potential Applicability of RCRA
Authorities?
As discussed in VI.G. we believe that disposal of LLMW, treated to
LDR standards, in a designated LLRWDF is protective of human health and
the environment, and we do not expect the exempted waste to pose a risk
once properly disposed. We believe a LLRWDF can greatly reduce the
potential applicability of RCRA authorities by taking steps to ensure
that the exempted waste has achieved the required LDR treatment
standards. During our discussion with the LLRWDFs (Ref.9), they
indicated that they would consider conducting independent waste
analysis to ensure that the waste accepted do meet the LDR treatment
standards. Additionally, we would encourage open communication between
the waste generators and the LLRWDFs regarding waste information.
E. What Conditions Must You Meet Prior to Claiming the Transportation
and Disposal Exemption?
This section discusses the rationale behind the conditions of the
exemption.
1. Why Are we Requiring LDR Treatment?
The hazardous constituents in waste eligible for the exemption must
first be treated to meet the RCRA LDR treatment standards specified in
40 CFR 268.40--268.48. The treated waste also must meet the definition
of non-wastewater as defined in 40 CFR 268.2(d). We believe that LLMW
or eligible NARM waste should meet LDR treatment standards, and be
managed in accordance with NRC or Agreement State requirements for LLW
to ensure protection of human health and the environment.
Like any hazardous waste destined for land disposal, LLMW must meet
LDR treatment standards prior to its disposal at a mixed waste disposal
facility (with a RCRA hazardous waste disposal permit and an NRC or
Agreement State license for radioactive waste disposal). Compliance
with the LDR treatment standards ensures that the toxicity and mobility
of the hazardous waste constituents is reduced. Our LLMW transportation
and disposal conditional exemption is based upon our determination that
the LLMW, or eligible NARM waste, which meets the LDR treatment
standards (thereby substantially reducing the toxicity and mobility of
the hazardous constituents in the waste) is rendered ``nonhazardous''
when disposed in accordance with NRC or Agreement State regulations.
In the Hazardous and Solid Waste Amendments (HSWA) of 1984,
Congress prohibited land disposal of hazardous waste unless the waste
undergoes treatment to minimize threats to human health and the
environment. The statute requires that treatment standards established
by EPA will substantially diminish the toxicity or mobility of
hazardous waste such that short-and long-term threats to human health
and the environment are minimized. See RCRA section 3004(m) 42 U.S.C.
6912(a), 6921, and 6924. Over the last 15 years, EPA has responded to
the statutory mandate by developing through a series of rulemakings
treatment standards for hazardous waste based on the best demonstrated
available technology (BDAT) for treating the waste. With the
promulgation of the most recent ``Phase IV'' Rule (63 FR 28556, May 19,
1998), EPA has promulgated treatment standards for
[[Page 63480]]
most hazardous wastes. This effort will continue as we promulgate new
hazardous waste listings or otherwise identify new hazardous wastes.
Furthermore, hazardous wastes (other than wastewaters) meeting the
LDR treatment standards, with a few exceptions, must be disposed of at
a RCRA Subtitle C hazardous waste disposal facility. However,
characteristic wastes that are rendered non-characteristic may be
disposed of as non-hazardous solid waste provided that they meet LDR
treatment standards, including standards for underlying hazardous
constituents (Sec. 268.2(i)). Wastes that have been delisted
(Sec. 260.22) may also be disposed of as solid waste.
Please note: In the following sections the discussion on
existing LDR treatment requirements are meant to provide reference
information for the reader. We are not taking comment on any
existing LDR requirements.
In the following sections of VI.E.1.a, we discuss different types
of RCRA hazardous wastes and summarize the existing applicable RCRA LDR
treatment standards for them.
a. What are the existing RCRA LDR treatment requirements for various
types of LLMW?
In the following discussion, we provide information regarding
existing RCRA LDR treatment requirements for various types of waste. A
table identifying the types of RCRA hazardous waste commonly found in
LLMW is provided as background material in the RCRA Docket (Ref. 10)
i. LLMW that is a listed hazardous waste (F, K, P, and U waste)
LLMW that contains, or is mixed with or derived from, a hazardous
waste listed in 40 CFR Part 261, subpart D has to be treated to meet
the LDR treatment standards specified for these waste streams in 40 CFR
268.40 before it is eligible for the transportation and disposal
exemption. Based on the available data, the listed hazardous waste
codes most commonly associated with LLMW are F001--F005, the codes for
spent solvent wastes.
ii. LLMW exhibiting hazardous characteristics (D001-D043)
Currently, a characteristic LLMW becomes a low-level radioactive
waste and is managed as such once it has been decharacterized. Under
this situation, a generator would not need to claim the transportation
and disposal exemption, nor meet the associated conditions in order to
dispose the resulting non-RCRA hazardous, low level radioactive waste
in a low level radioactive waste disposal facility. However, if a
characteristic MW was treated but not decharacterized, then it
continues to be a MW. You would then need to claim the MW
transportation and disposal exemption and meet the associated
conditions for this resulting MW in order to dispose of it in a LLRWDF.
In addition, the underlying hazardous constituents (UHCs) must always
be identified and treated to meet the Universal Treatment Standards
(UTS) levels specified in 40 CFR 268.48.
Under current regulations, a waste exhibiting the characteristics
of ignitability (D001), corrosivity (D002), reactivity (D003), or
toxicity (D004-D043) must be treated to the applicable LDR treatment
standards specified for those waste codes in 40 CFR 268.40 before it
can be disposed on land. If meeting the LDR treatment standards also
enabled the treated waste to become decharacterized, then the resulting
waste can be disposed as non-hazardous waste. However, if meeting the
LDR treatment standards does not enable the treated waste to become
decharacterized, then the resulting waste must be disposed of as
hazardous waste. (This is the case for some characteristic wastes
exhibiting the characteristic of toxicity, such as Selenium.) In order
for a characteristic waste exhibiting toxicity to be decharacterized,
the toxic constituent must be treated to below the ``Maximum
Concentration of Contaminants For The Toxicity Characteristic'' listed
under Sec. 261.24. On the other hand, the LDR treatment standards are
technology based and therefore do not always achieve the levels listed
in Sec. 261.24. Therefore, a decharacterized LLMW becomes a LLW and
does not need to claim the MW transportation and disposal exemption. On
the other hand, a treated but not decharacterized LLMW continues to be
a LLMW and would have to claim the exemption in order for it to be
disposed in LLRWDF.
In addition, the UHCs must also be identified and treated to meet
the UTS levels specified in 40 CFR 268.48. In 1998, EPA promulgated the
LDR Phase IV Rule, revising UTS for nonwastewater forms of 12 metals
(63 FR 28559-28572). The rule also required treatment of UHCs
reasonably expected to be present in the toxicity characteristic (TC)
waste to UTS levels.
iii. Mixed waste debris
Debris, as defined in 40 CFR 268.2(g), contaminated with RCRA
hazardous waste and radioactive debris can be treated according to an
alternative LDR treatment standards under Sec. 268.45 (57 FR 37221,
Aug. 8, 1992). The treated debris can then be disposed on land. The
three major types of treatment methods under the LDR alternative
treatment standards for debris consist of destruction, extraction, and
immobilization. Under LDR regulation, any hazardous debris treated by
the destruction and extraction methods are considered non-hazardous
waste. As such, a MW debris meeting the requirements for extraction and
destruction treatment methods can be managed as radioactive waste
alone. Therefore, you would not need to claim the transportation and
disposal exemption, nor meet the associated conditions in order to
dispose this resulting non-RCRA hazardous, radioactive waste debris in
a LLRWDF. However, for a MW debris treated via the immobilization
treatment methods, the resulting waste remains a RCRA hazardous waste.
Therefore, you would need to claim the exemption and meet the
associated conditions in order for you to dispose the immobilized MW
debris in a LLRWDF. Alternatively, a listed hazardous debris treated
through the immobilization technology becomes a non-hazardous waste
under Sec. 261.3(f)(2) if the Regional Administrator determines that it
is no longer hazardous, after a ``contained-in'' determination is made.
Characteristic debris treated by immobilization technology can also
become a non-hazardous waste if you, the generator, can demonstrate
that the immobilized debris is no longer hazardous. If your treated
debris is no longer hazardous, then you would not need to claim a
conditional exemption in order to dispose the waste at a LLRWDF. Also,
mixed waste debris treated to meet the treatment standards found in
Sec. 268.40 can be disposed of at LLRWDFs if the proposed conditions
were met.
iv. Hazardous soil contaminated with radioactivity
Under current LDR treatment requirements, soils contaminated with
RCRA hazardous waste must be treated to meet the universal treatment
standards at Sec. 268.48 before disposal in a RCRA hazardous waste
landfill. In addition, we also promulgated alternative treatment
standards for soils under the LDR Phase IV Rule (63 FR 28602-28622, May
26, 1998) to provide flexibility for remediation activities. The
alternative treatment standards for soils can be found in Sec. 268.49.
Contaminated soils treated to meet the RCRA LDR treatment standards
must be disposed in a RCRA hazardous waste disposal facility, unless
they are found to no longer be a hazardous waste. When the treated
waste continues to be
[[Page 63481]]
a hazardous waste, you would need to claim the exemption proposed today
in order to dispose the treated soils at a LLRWDF. However, under
current LDR regulations, the treated soils can be disposed in a RCRA
non-hazardous waste disposal facility if it is determined that the
treated soils are no longer a RCRA hazardous waste. Under this
situation, the resulting soils become a radioactive waste, and you do
not need to claim the exemption proposed here today in order to dispose
it in a LLRWDF.
The alternative treatment standards allow contaminated soil to be
treated to remove 90% of the hazardous constituent concentrations, but
not below 10 times the UTS level for those constituents. In the LDR
Phase IV Rule, we determined that the technology-based ``90 percent
reduction capped by 10 x UTS'' treatment standard for contaminated soil
is sufficiently stringent to satisfy the core requirement of RCRA
Section 3004 (m) that short and long-term threats to human health and
the environment are reduced, taking into account the need to encourage
remediation of contaminated soil which involves excavation and
treatment of the soil. In the case of this exemption, soils placed in a
NRC-regulated LLRWDF must be containerized in addition to complying
with the applicable LDR treatment standards. We request comment on
whether, for any reason, this conditional exemption should apply only
to hazardous soils contaminated with radioactive waste and treated to
LDR standards derived from the original waste codes, rather than to
soils treated to alternative soil treatment standards.
v. Hazardous and radioactive waste managed in lab packs
As an alternative to the otherwise applicable LDR treatment
standards, lab packs containing hazardous and radioactive wastes are
eligible for the exemption provided the following requirements are met:
The lab packs comply with the applicable provisions of 40
CFR 264.316 and 40 CFR 265.316;
The lab pack does not contain any of the wastes listed in
Appendix IV to part 268;
The lab packs are incinerated in accordance with the
requirements of 40 CFR part 264, subpart O or 40 CFR part 265, subpart
O; and
Any incinerator residues from lab packs containing D004,
D005, D006, D007, D008, D010, and D011 are treated in compliance with
the applicable LDR treatment standards specified for such wastes.
vi. LDR variance from a treatment standard
Today's proposal does not change the provisions for a variance from
a treatment standard at Sec. 268.44. You may continue to petition for a
variance from the LDR treatment standards as discussed under
Sec. 268.44 if the established LDR treatment standards is not
appropriate for your specific waste.
b. How do you determine whether your hazardous and radioactive waste
meets the LDR treatment levels?
You must comply with the same requirements as those required under
the current LDR program to determine whether your waste meets the LDR
treatment standards prior to disposal. (See the LDR waste determination
and testing requirements at sections 268.7(a) and 268.7(b) for
hazardous waste generators and treatment facilities, respectively.
c. What can you do to reduce radiation hazards when testing your
hazardous and radioactive waste to show compliance with LDR treatment
levels?
Recognizing the public's concern over potential radiation exposure
from mixed waste testing (for example, as noted in public comments on
the HWIR95 proposal), we developed, in close coordination with NRC, a
mixed waste testing guidance titled ``Joint NRC/EPA Guidance on Testing
Requirements for Mixed Radioactive and Hazardous Waste'' to address
this concern. [Interested readers can get a copy of the guidance by
accessing EPA's mixed waste web site (www.epa.gov/radiation/mixed-
waste/).] The primary purpose of this guidance document is to help NRC
or Agreement State licensees and others in characterizing their mixed
waste in accordance with RCRA regulations while keeping radiation
exposure as low as reasonably achievable (ALARA). The guidance
emphasizes flexibility in the RCRA testing requirements so that the
ALARA concept can be incorporated.
2. Why is Notification a Condition for the Exemption?
a. Why must you notify the appropriate RCRA program agency of your
claim of the exemption?
The notification package, referred to in Sec. 266.325-Sec. 266.330
of this proposed rule, lets your RCRA program agency know about your
exemption claim. The notification is especially important because as
proposed, the regulation would be self-implementing. The information
contained in the notification package would provide your RCRA program
agency a general understanding of the nature and volume of your waste.
The certification that your waste meets the LDR treatment standard
provides your RCRA program agency the assurance that one of the
critical conditions of the exemption has been met. Information
regarding the disposal facility allows your RCRA program agency to
confirm such disposal. This information would allow the agency to
document, verify, and track your exemption compliance status. They can
plan inspections and review exemption-related records to ensure that
you are following all the conditions of the transportation and disposal
exemption. They can also consider the need for possible enforcement
actions if an exemption is improperly claimed. However, your RCRA
program agency would be under no obligation to review the notification
notice or approve the exemption claim.
b. Why must you also notify both the RCRA program agency and NRC or
Agreement State in the State where your waste will be disposed?
We require you to notify the RCRA program agency and NRC or
Agreement State at the state where the NRC or Agreement State-licensed
LLRWDF is located so that they are properly informed and can take
prompt and informed action, when necessary. Further, we believe that
knowledge of the exemption claims should enable the regulatory
agencies, in the state where the LLRWDF resides, to take a more
proactive role in protecting their interests. The state regulators
expressed concerns that disposal facilities might receive shipments
that do not meet the transportation and disposal exemption conditions
(Ref. 11).
In the event that they need to investigate any problem at the
disposal facility in their State, knowledge of the exemption would
allow them to communicate with the appropriate regulatory agencies and
obtain additional information necessary for their investigation.
Knowledge of the exemption would also facilitate and expedite
communication among regulatory agencies in different states and under
different regulatory authorities. LLRWDFs are licensed and regulated by
NRC or Agreement State, which in some instances can be a separate
regulatory agency from the RCRA agency within a state. Therefore, we
are proposing that notification packages be sent to NRC or Agreement
State and the RCRA program agency in the state where the RCRA-exempted
waste is to be disposed. We believe this condition will not create much
additional burden for you because you
[[Page 63482]]
already have to prepare the same notification package for their RCRA
program agency. This additional notification would only require you to
make and send copies of the same paper work that has already been
created. Therefore, we believe this notification condition can be
accomplished with minimum cost and burden while providing substantial
benefit.
c. Are you required to include the LDR test results and other related
material in your notification package?
No, we believe it is not necessary to submit detailed LDR
compliance data, such as the waste analysis plan and testing data, in
your notification package. The purpose of the notice is simply to
inform the regulatory agencies of the exemption claim and provide a
general description of the claim (for example, your identity,
description and volume of the waste, and disposal location). In
addition, because this rule is self-implementing, we do not see the
advantage of including detailed information such as the waste analysis
plan and laboratory testing results in the notification package. This
is because the implementing authority is not required to make a formal
decision regarding the exemption under the self-implementing scheme.
The inclusion of detailed LDR compliance data would unnecessarily
create additional burden and increase the cost of the regulation.
This aspect of the proposal is consistent with the existing RCRA
program. The LDR program does not require generators to submit detailed
waste testing information to the States. Rather, these types of
information must be kept at the generator's site for at least three
years. Under the transportation and disposal conditional exemption, the
LDR compliance testing data would also be kept on site for three years
from the time the exemption is claimed. Therefore, the RCRA program
agency would always have access to the detailed information regarding
LDR compliance.
d. Why do you have to notify the LLRWDF receiving your exempted waste
of the exempted status of your waste?
We are requiring you to notify the LLRWDF for two reasons. The
first reason is to let the LLRWDF know that the shipment contains the
exempted waste so that they can take actions that they deemed necessary
to protect their facilities. The second reason is to allow future
identification of a shipment that had contained an RCRA-exempted waste.
Clearly, a LLRWDF's willingness to receive the exempted waste is
essential in achieving regulatory relief for the disposal of hazardous
and radioactively contaminated waste under this proposal. One major
input that we received from the owners/operators of LLRWDFs during our
meeting with them in December 1998 (Ref. 9) is that they want to screen
out potentially problematic shipments by testing for chemical
constituents. They also want to ensure that the exempted wastes meet
the LDR treatment standards and other conditions for exemption proposed
today. The notification procedure would allow them to protect their
facilities from non-compliant wastes.
Secondly, we are requiring that the generator record the shipment
number, from block number 5 of NRC's Uniform Low-Level Radioactive
Waste Manifest Form 540, of a radioactive waste shipment that contains
RCRA-exempted mixed waste on the notification letter to the LLRWDF
receiving the RCRA-exempted waste. We want to provide the LLRWDFs and
any regulatory agency a method of identifying, if necessary, a batch of
LLW shipment that contained or contains RCRA-exempted waste. After
meeting LDR treatment standards, a RCRA-exempted mixed waste would be
managed as a radioactive waste. Therefore, without proper
documentation, it would not be possible to identify, when necessary,
whether a given radioactive waste transported to a LLRWDF contained the
RCRA-exempted waste. We believe this identification is necessary to
facilitate any actions regarding the RCRA-exempted waste at LLRWDF.
3. What Are the Conditions for Manifesting and Transporting the
Exempted Waste?
a. Why is it appropriate to manifest and transport the RCRA-exempted
mixed waste only according to NRC, or an Agreement State's, manifest
and transportation requirements?
We are proposing that only NRC or Agreement State's manifest and
transportation requirements be followed for the shipment of the
exempted waste. We are proposing to conditionally exempt LLMW or
eligible NARM which meets the LDR treatment standards from RCRA
hazardous waste manifest and transportation requirements because we
believe transportation of this waste according to the requirements for
transporting a low level radioactive waste is protective of human
health and the environment.
The waste first must be treated to meet LDR treatment standards
before it is exempted. During treatment most of the organics in the
waste will have been destroyed and the metals stabilized. The LDR
treatment standards compliant waste would also no long exhibit any of
the ignitible, reactive, and corrosive characteristics. Thus, we
believe that the packaging and transportation requirements for a
radioactive waste would be adequately protective for the transportation
of a waste meeting LDR treatment standards. The Department of
Transportation (DOT) supports this assessment. NRC or Agreement State's
transportation regulations for low level radioactive waste incorporate
the DOT requirements for transporting radioactive material. The DOT's
Hazardous Material Regulations (HMR; 49 CFR 100-199) contain
requirements for the transportation of hazardous materials. This
regulation include packaging, labeling, documentation, placarding, and
other requirements. The HMR contain criteria for 9 hazardous classes,
some of which are subdivided into divisions. Hazardous materials
subject to the HMR, must at least be packaged in strong tight
containers that can survive transportation. Performance-oriented
packaging is usually required for most hazardous materials. In our
discussion with the DOT, they agree that when the RCRA component has
been treated thus removing the flammable, corrosive, and reactive
properties, then the radioactive waste component would be the primary
hazard present and the waste would be shipped accordingly. Therefore,
we believe the transportation of the LDR treatment standards compliant
waste according to the requirements for radioactive material is
appropriate.
We also believe the NRC or Agreement State's manifest requirements
for low level waste satisfy the tracking needs for the RCRA exempted
waste and ensure the arrival of the exempted waste at the appropriate
LLRWDF. Even though the RCRA exempted waste is not required to be
manifested as RCRA hazardous waste, a mechanism is still needed to
track the movement of this waste. This is because disposal of the RCRA
exempted waste in NRC or Agreement State-licensed LLRWDF is a critical
condition of the exemption. We must be able to track this waste from
the generator to NRC or Agreement State-licensed LLRWDF.
Since the exempted waste remains subject to NRC or Agreement
State's manifest regulations, we conducted a detailed comparison
between the RCRA and NRC's manifest regulations for the purpose of
tracking the movement of the RCRA exempted waste. (Ref. 12) We
determined that NRC's waste tracking requirements are at least as
stringent as
[[Page 63483]]
the RCRA requirements. Most notably, both the RCRA and NRC manifests
were developed to be consistent with the shipping paper requirements of
DOT (See 49 CFR 172.200). Therefore, the RCRA and NRC manifests share
many basic elements. In addition, both manifest regulations require
closed-loop notification and tracking, exception reporting, and
mandatory record keeping of manifests. NRC's regulations, however, go
beyond RCRA requirements in several areas, such as requiring longer
manifest retention times in certain cases and specifying more stringent
schedules for generators to investigate shipments for which they have
not received the LLRWDF's acknowledgment of receipt. Given these
observations, we believe that NRC's requirements for tracking of low-
level waste would more than meet our needs to ensure that the exempted
waste arrives at NRC or Agreement State-licensed LLRWDF. Therefore, we
are not imposing additional RCRA tracking requirements in this
proposal.
b. Why do generators who self-regulate under the AEA have an additional
condition to meet?
We are requiring generators who self-regulate their radioactive
waste management activity under the AEA authority, such as DOE, to
follow 10 CFR 71, and 49 CFR 100-199 transportation requirements and 10
CFR 20 manifest requirements as an additional condition to claim the
exemption. Generators and transporters regulated by NRC, or an
Agreement State, and DOT are already required to follow these
transportation and manifest regulations. For generators who self-
regulate under the AEA, this additional condition would ensure the
consistent application of the manifest and transportation requirements
for the RCRA-exempted radioactive waste.
Secondly, this condition provides a vehicle for taking enforcement
action against a facility who self-regulates under AEA if NRC or DOT
manifest and transportation regulations are violated. By self-
regulating under AEA, DOE is not subject to NRC, or DOT enforcement
authority for the management of radioactive material, although we
understand that DOE works with both agencies to resolve issues of
concern. We believe, however, that enforcement is an important aspect
of this regulation. By establishing transportation and manifest
requirements as a condition for generators who self-regulate under AEA,
we are providing an external enforcement mechanism for the RCRA-
exempted waste that would otherwise not exist. Therefore, facilities
like DOE would be subject to RCRA enforcement actions if they violated
this condition. We did not place this requirement as a condition for
the exemption for generators subject to NRC or DOT regulations because
they would be subject to NRC or DOT enforcement actions if they
violated NRC or DOT manifest or transportation requirements.
As the exemption is contingent upon waste disposal in a NRC or
Agreement State licensed LLRWDF, it is important that a mechanism is in
place to track all exempted waste in transit and confirm that the
exempted waste arrived at the appropriate disposal facility. We do not
believe this condition would impose an unreasonable burden on these
facilities, as other generators and transporters are all required to
comply with these manifest and transportation requirements. In
addition, it is also critical that the mechanism used is enforceable.
Therefore, we believe this proposed condition provides these facilities
with an opportunity to take advantage of the proposal while bearing a
reasonable regulatory burden.
4. Why Must the Exempted Waste Be Disposed Only in a LLRWDF Licensed by
NRC in Accordance with 10 CFR 61?
We are proposing that the RCRA-exempted waste be disposed of only
in a LLRWDF licensed by NRC or Agreement State in accordance to 10 CFR
61 to ensure the protection of human health and the environment from
the disposal of the RCRA-exempted waste at these facilities. This is
because our evaluation is based on the review and analysis of LLRWDFs
licensed and operated by NRC or Agreement State in accordance to 10 CFR
61.
We limited our evaluation of the LLRWDFs to only those licensed by
NRC or Agreement State due to concerns raised by the States. The States
were concerned about DOE's self-regulating status under AEA. Under such
regulatory framework, state radiation control programs do not have
regulatory oversight authority for the RCRA-exempted radioactive waste.
The NRC or Agreement State has primary responsibility for exercising
regulatory authority over the possession and transfer of radioactive
material by commercial entities, and some non-DOE Federal facilities.
In contrast, DOE is responsible for regulating its own activities under
the AEA. The States are concerned that they would lose control over the
management of the RCRA-exempted radioactive waste, and lose enforcement
authority once it exits RCRA Subtitle C jurisdiction (see VI. H. for
further discussion). In most cases, this proposed regulation would need
to be adopted by the States before it can be implemented, so it is
necessary to ensure that the States' concerns are addressed. We believe
that restricting the disposal of the RCRA-exempted radioactive waste to
a NRC or Agreement State licensed LLRWDF would address the States'
concern regarding DOE's self-regulating status. This approach would
ensure that all RCRA-exempted radioactive waste would remain under an
external regulatory framework and enforcement authority. In addition,
this approach would not exclude DOE from taking advantage of the
transportation and disposal exemption if DOE disposes of its exempted
waste in LLRWDFs licensed by NRC or Agreement State. This approach
allows us to accommodate DOE's waste while addressing the States'
concern.
Alternatively, DOE can consider petitioning the States for
developing site-specific, risk-based exemption levels through the site-
specific risk-based variance approach, if adopted, discussed in section
VI.F.2 of this preamble. A site-specific risk-based variance would
enable DOE to work directly with mixed waste authorized States to
develop appropriate risk levels and exemption conditions.
In addition, this exemption does not apply to disposal at on-site
disposal units at environmental clean up activities sites such as
disposal units at Uranium Mill Tailings Remediation and Control Act
(UMTRCA) sites and Formerly Utilized Sites Remedial Action Program
(FUSRAP) sites. This is because the technical analysis that was
conducted for this proposal was based on the LLRWDFs that are designed
and operated according to 10 CFR 61 and associated technical guidance
documents prepared by NRC. The disposal units at UMTRCA or FUSRAP sites
are not subject to 10 CFR 61 requirements and NRC or Agreement State
licensing process for LLRWDFs. However, the proposed exemption is
applicable to remediation wastes from UMTRCA and FUSRAP activities that
are hazardous wastes contaminated with radioactivity, and are disposed
at LLRWDFs licensed and operated in accordance to 10 CFR 61. provided
that the generators meet all the proposed conditions for exemption.
5. What Is the Purpose of the Records That You are Required To Keep?
The records would provide your RCRA program agency with information
during inspections and audits to determine whether you are complying
with all of the conditions of the exemption. These records could also
be
[[Page 63484]]
used in possible enforcement actions. Since the exemption is self-
implementing, it is particularly important that you keep all of the
required records and make them available to the regulatory agency, when
requested.
6. How Is the Public Involved?
a. What Is the role of the public in the proposed transportation and
disposal exemption?
The public can play an important role under today's proposal.
During the rulemaking process, the public will have the opportunity to
provide comments on the proposal. We welcome and encourage the public
to provide comments on today's proposed rule to help us address their
concerns. In addition, the public will also have an opportunity to
voice their opinions when a state develops regulations to adopt a final
rule. At any time, the public can also participate by bringing to the
RCRA program agency's attention any circumstance that they are aware of
which might aid oversight authorities in their monitoring and
enforcement efforts. Furthermore, the public can request information
concerning a particular facility's operational records from a state
regulatory agency if they have a reason to believe that mismanagement
at a facility may pose a risk to human health or the environment. The
public can also bring a citizen suit against a generator for failure to
comply with the conditions of the Rule.
b. How can the public obtain information about the exemption and stay
involved?
We recognize the need to enable communities to become more active
participants in local environmental issues by providing easy access to
information. As the exemption is self-implementing, we do not see the
advantages of notifying the public since there is no formal decision-
making opportunity, prior to the exemption, that the public could
participate in.
Many State environmental agencies have mechanisms, such as
telephone hotlines, printed or electronic media, to keep the public
informed and to answer questions about public safety and environmental
issues. We believe these established procedures and information
repositories are sufficient to keep the public informed of the disposal
activities of LLRWDFs, and encourage state environmental agencies to
utilize these mechanisms. Depending on the structure of the State
program, the State agencies may decide to provide public access to
relevant information at the State or local level (for example, public
libraries, or fire stations).
F. What is EPA's Site-Specific, Risk-Based Variance Alternative for
Disposal?
We are proposing an alternative approach which would be based on
site-specific risk modeling. We are proposing this alternative because
the States have expressed interest in site specific risk-based
exemption levels which are more suitable for an individual disposal
site. By using a site-specific risk-based approach, a state can choose
to customize and establish the exemption levels for a LLRWDF under
consideration based on the specific characteristics of the disposal
site. Under this approach, we are proposing that the regulated
community work directly with the States in developing the site-specific
risk-based exemption levels using the risk target level specified by
EPA.
For the transportation and disposal conditional exemption, we are
proposing to use the current LDR treatment standards instead of
modeling to develop new national risk-based levels. However, under
RCRA, we can generally grant exemptions and variances from RCRA
requirements, if an alternate practice will not adversely impact human
health and the environment.
We are asking for public comments on the approach of a state
approved site-specific, risk-based alternative to allow the disposal of
hazardous waste contaminated with radioactivity in any LLRWDFs
including DOE's LLRWDFs. This approach could be pursued by States, an
owner/operator of a LLRWDF (NRC or Agreement State licensee or DOE
sites), or a consortium of generators of LLMW or eligible NARM. In
pursuing this option, a petitioner must demonstrate that the site-
specific risk-based exemption levels are protective of human health and
the environment as defined by EPA at the disposal location. In these
situations, a site-specific risk-based variance petition developed in
consultation with and approved by the State RCRA agency may be a
desirable alternative to the conditional exemption proposed today.
When developing the site-specific risk-based levels, the petitioner
should account for the following factors:
Climatological and hydro-geological information;
Information on hazardous constituents of concern in the
LLW, or NARM contaminated waste (the number of constituents can be
targeted by restricting the RCRA waste codes);
Potential human and environmental receptors;
At a minimum, national risk protection goals identified by
EPA;
Potential routes of exposure (i.e., direct and/or
indirect); and
Potential exposure media:
--Groundwater (at a minimum);
--Air, if disposing of bulk waste instead of containerized waste; and
--Surface water, if groundwater-to-surface water connectivity is a
concern.
When developing the site-specific risk-based variance approach, the
public participation process found at Sec. 268.44(e) would be necessary
to provide an opportunity for the public to understand and comment on
the site-specific risk levels. (See 62 FR 64507, Dec. 5, 1997 for
additional discussion for public involvement.)
Today, we are soliciting comments on whether the States, the
regulated community, or non-NRC or Agreement State licensees (for
example, DOE) would be interested in pursuing the development of site-
specific risk-based exemption levels. We seek comments on the site-
specific risk-based variance approach, and the types of guidance
documents needed by EPA for site-specific risk modeling. We also seek
comments on whether this approach would be preferred over the proposed
conditional exemption.
G . How Did we Conduct our Technical Assessment for the Disposal of
Treated Waste at Low-Level Radioactive Waste Disposal Facilities?
Our proposed conditional exemption for disposal relies on the
benefit derived from the LDR treatment requirements, and the protection
offered by LLRWDFs licensed pursuant to 10 CFR 61. Our evaluation of
NRC regulations at 10 CFR 61, NRC technical guidance documents, and NRC
or Agreement State licensing requirements for LLRWDFs (see Technical
Background Document, Ref. 7) forms the basis of our finding that the
NRC or Agreement State disposal requirements per 10 CFR 61, and EPA
disposal requirements provide comparable protection for human health
and the environment. This finding is based on the following:
The reduced toxicity and mobility of RCRA hazardous
constituents when LLMW or eligible NARM wastes are treated to LDR
treatment standards.
Our analysis of NRC regulation licensing requirements for
``near-surface'' disposal of LLW.
Protection provided against chemical risks to human health
and environment when LLMW or eligible
[[Page 63485]]
NARM meets the LDR treatment standards and is disposed of in LLRWDFs
subject to 10 CFR 61 regulations and the NRC licensing requirements.
Based on this analysis, we concluded that disposal in a LLRWDF
would be protective in lieu of RCRA regulation so long as the waste
meets RCRA LDR treatment standards and is disposed at a facility
meeting the NRC or Agreement State low-level waste disposal regulations
according to 10 CFR 61.
The following sections discuss our evaluation of low-Level waste
disposal requirements of LLRWDFs, licensed by NRC, for the disposal of
LLMW or eligible NARM that has met RCRA LDR treatment standards. For
additional discussion, see the Technical Background Document in the
RCRA Docket for this proposal. (Ref. 7)
1. How Did We Assess Low-Level Radioactive Waste Disposal Facilities?
We compared low-level mixed waste disposal of hazardous waste in
the RCRA Subtitle C program to disposal at LLRWDFs licensed by NRC or
an Agreement State. Hazardous waste under RCRA must first be treated
according to the LDR treatment standards before the hazardous waste can
be placed or managed on the land, and the treated waste continues to be
managed as a hazardous waste.
The suitability of disposal of eligible hazardous waste
contaminated by LLW or NARM as part of this technical assessment,
relies on waste treatment and the placement of waste in an engineered
disposal cell meeting the waste disposal facility performance standards
specified under 10 CFR Part 61. Our approach recognizes that compliance
with LDR treatment standards is integral to the overall protection
scheme developed for disposal of eligible hazardous waste contaminated
with NRC or Agreement State-regulated radionuclides. In our technical
assessment, we also consider disposal facility siting-engineering
design-management-control factors that will provide sufficient
protection against chemical risks for eligible hazardous waste
contaminated by LLW or NARM meeting RCRA LDR treatment standards. In
evaluating risks, we considered whether the NRC requirements (10 CFR
Part 61) for low-level waste disposal could meet the same general
criteria of protection from chemical hazards as a hazardous waste
meeting Subtitle C landfill requirements in 40 CFR Part 264. The
technical analyses we conducted between RCRA hazardous and low-level
waste landfills considered many practices including the following:
siting/location, waste packaging/containerization, landfill engineering
design, disposal cell/unit management requirements, post-closure care,
and institutional controls.
Numerous possible exposure pathways exist based on the combination
of sources, exposure medium, exposure routes, and receptor types. For
this analysis, we evaluated many possible exposure combinations,
selecting the most plausible ones (for example, ground water)based on
unit, media, and exposure combinations (landfill ground water
drinking water) and eliminated other pathways based on waste
form, unit, and management for example, the least plausible ones
(landfill overland human ingestion).
The proposed requirement of complying with LDR treatment standards
and disposal of waste in low-level radioactive waste landfills licensed
by NRC or Agreement State were the main factors leading to the
elimination of all but groundwater pathways for human exposure. Under
the LDR requirements, hazardous waste must meet constituent-based
concentrations or technology standards. These requirements result in
either reduced constituent concentration, toxicity, and mobility. We
believe that the RCRA LDR treatment standards for LLMW or eligible NARM
waste and the NRC or Agreement State requirements for LLW disposal
including the limit on liquid content of LLW disposal in LLRWDFs,
chemical compatibility requirements for disposal, and cover system
minimizes the possibility of leaching, volatilization, and gaseous
diffusion. In addition, containerization of low-level waste (the waste
form and structural integrity requirement of NRC or Agreement State)
inhibits leachate generation, particle air dispersion, and run on-
runoff from landfill. Also, NRC or Agreement State siting requirements
restrict siting of disposal facilities at locations where presence of
onsite water bodies and off-site groundwater and surface water
connectivity would be of concern.
2. What Was the Technical Assessment we Conducted?
a. Which low level waste disposal facilities were considered for this
analysis?
Our technical assessment analyzed five disposal facilities under
NRC or Agreement State or Agreement State regulation that could be
candidates for accepting LLMW or eligible NARM which meets the LDR
treatment standards:
The Chem-Nuclear Systems disposal site in Barnwell, South
Carolina (available to all States except North Carolina and those
belonging to the Northwest and Rocky Mountain Compacts).
The U.S. Ecology disposal site in Richland, Washington
(available to States in Northwest Compact and Rocky Mountain Compact).
The Envirocare disposal facility in Clive, Utah
(commercial facility not belonging to any Low-Level Waste Compact).
The U.S. Ecology disposal facility in Ward Valley,
California (future site for states in Southwest Compact).
The Hudspeth County, TX facility in Sierra Blanca, Texas
(future site for Texas Compact).
The disposal status at the last two facilities is
currently uncertain. However, as part of our technical assessment, we
evaluated them along with the three existing licensed low-level waste
disposal facilities.
b. How were the sites evaluated?
We evaluated these sites using technical and administrative
criteria. The administrative criteria include NRC regulations,
guidance, and actual license conditions for site operation and
management. The technical portion of the analysis considered
climatological, geological, and soil properties. In addition to the
site environmental properties, they were also evaluated for siting,
landfill unit engineering and construction criteria, closure, and
institutional post closure controls (Ref. 7).
i. Are the locational requirements comparable between EPA and NRC
regulations?
The locational requirements between RCRA and NRC are generally
comparable, with NRC being more restrictive in specific areas. Both
programs have very similar restrictions for seismic areas and flood
plains. The NRC also bans location of disposal facilities in
environmentally sensitive locations, such as wetlands and coastal high
hazard areas (10 CFR 61.50(a)(5)). The NRC does mandate restrictions
for ground water surface water connectivity on-site and potential
restrictions on off-site surface water impact from either ground water
connectivity or overland mechanisms (10 CFR 61.50(a)(8)). The NRC also
ensures that the disposal facility should not exploit natural resources
that would result in not meeting performance objective (for example,
potable ground water). The NRC required performance analysis of the
disposal site for radiation hazards
[[Page 63486]]
factors in: presence of a receptor, duration of transport, and dose to
the receptor. The NRC also requires the ability to characterize,
monitor, and model the facility (10 CFR 61.50(a)(2)) leading to avoid
siting of a disposal facility in areas of complex subsurface geology
(e.g. active karst or fractured rock).
ii. Are the treatment and liner/container requirements comparable
between EPA and NRC?
In general, the treatment and container requirements are comparable
between RCRA and NRC. LLW that is Class A waste must be stabilized
according to 10 CFR 61.56(b). NRC also requires that the Class A waste
be treated to reduce the potential hazards from the non-radiological
constituents to the maximum extent practicable (10 CFR 61.56(a)(8)).
These requirements are similar to RCRA hazardous waste treatment
requirements applicable to some hazardous waste streams (for example,
metal-containing waste, and macro/micro encapsulated debris). Also, as
noted earlier, RCRA requires that hazardous waste be treated to LDR
treatment standards before the hazardous waste can be landfilled. Both
NRC and EPA restrict the liquid content of the waste destined for
disposal in landfills. The NRC restricts the free liquid contents to 1%
by volume or less. The EPA regulations require use of a specified test
showing that under the specified pressure, there is no visible sign of
liquid release.
In some instances, the NRC is more restrictive by requiring
disposal of waste as containerized waste. NRC regulations require that
waste be packaged such that waste form and structural integrity be
maintained until the Class A radionuclides decay. However, except for
liquid waste disposal, EPA does not require containerization of waste.
NRC container requirements require that steel drums or high-integrity
containers (HICs) be used to store and dispose LLW and must meet the
American Society of Testing Methods (ASTM) performance requirements
related to, among other things, structural integrity and resistance to
corrosion. In addition to minimizing contact with water, NRC requires
disposal of a containerized waste in a disposal cell. RCRA does not
require disposal of hazardous waste as containerized waste. However,
RCRA requires that landfills be constructed with a double liner and
leachate system that at least include a 3-foot thick (91cm)
1 x 10-7 permeability lower liner soil component, and
requires that the cover be no more permeable than the landfill's liner
system. These RCRA requirements would likely achieve the purpose of the
NRC containerization requirements to prevent contact between waste and
water and to reduce the potential generation of waste leachate.
iii. Are the landfill design requirements comparable between EPA and
NRC regulations?
EPA and NRC take different approaches to landfill design. While EPA
relies on prescriptive regulations for cover and liner design and
construction, NRC relies heavily on the performance requirements of its
cover system, containerization, and environmental setting. The NRC
mandate requires that the engineered landfill design system integrates
both the site properties (climate, soil geology) along with the
performance of the cover system. This integration grants flexibility to
the final engineering design, resulting in site-specific landfill unit
designs. The integrated disposal systems might include concrete vaults
(especially in humid environments of the country--for example, Chem-
Nuclear facility at Barnwell, SC) which have a thick cover that might
include geo-materials or even a liner. Overall, our analyses indicated
a grouping of the cover systems by their performance and that the
Subtitle C and LLRWDF engineered systems are comparable (Ref. 7).
NRC requires that the landfill be designed to limit human exposure
to a specified level of radioactivity. Unlike RCRA, NRC does not set
detailed design specifications for liners, covers, or monitoring in
order to prevent releases to groundwater. Instead, AEA landfills are
designed to provide assurance that concentrations of radioactive
material which may be released to ground water, surface water, air,
soil, plants, or animals must not result in exposures to humans above
specified health-based levels (10 CFR 61.41). NRC has landfill
performance requirements which include that the landfill must be
designed to limit human exposure to a specified level of radioactivity
and intrusion by humans and animals (10 CFR 61.14(b)). Unlike RCRA, NRC
does not set detailed design specifications for liners, covers or
monitoring in order to detect and mitigate releases to groundwater.
Instead, LLRWDFs are designed to provide assurance that concentrations
of radioactive material which may be released to the general
environment in ground water, surface water, air, soil, plants or
animals must not result in exposures to humans above specified health-
based levels (10 CFR 61.41).
RCRA has certain minimum technical design requirements for landfill
covers and liners. These requirements were established to help ensure
that disposal requirements of hazardous wastes would limit potential
human exposure to hazardous constituents and provide for protection of
human health and the environment (3004(a)). For example, RCRA requires
that the liner system be composed of an upper liner component such as a
geomembrane, a 3 foot thick (91cm) 1 x 10-7 permeability
lower liner soil component, and a double leachate collection systems
between these liners (40 CFR 264.301(c)), and that the cover be no more
permeable than the landfill's liner system (40 CFR 264.310(a)(5)).
Because the cover can be no more permeable than the liner, RCRA
requires that the cover will at least be of a 3-foot thick layer with
1 x 10-7 permeability.
Some of the chemical constituents in LLMW or eligible NARM could
have physical/chemical properties indicating a high potential for
mobility in the subsurface or in groundwater. While this situation is
theoretically possible, our analysis indicates that LDR requirements
and NRC waste disposal requirements (and NRC guidance) for minimizing
water infiltration through the cap and contact with the waste (10 CFR
61.50(a)(4), 10 CFR 61.51(a)(4)) will prevent significant releases of
chemical constituents from the waste into the groundwater and thus
provide for sufficient protection of human health and the environment.
The protection of groundwater against chemical releases at LLRWDFs
through requirements of this proposed rulemaking is further described
below in section v.
iv. How do institutional controls minimize long-term risks?
Post-closure care under RCRA regulations can last for 30 years or
more, during which time the ownership of the property remains in
private hands. After the post-closure period, the site is available for
redevelopment. Under AEA, facility maintains active care for up to 100
years and the facility is in governmental control. The longer active
institutional control under AEA should result in better maintenance of
the facility and governmental control is a source of long-term control.
In some states (for example, New York,) RCRA post closure and financial
assurance are required for up to 100 years, much like that required
under AEA.
The post-closure monitoring requirements differ between NRC and
EPA. RCRA requires that post-closure groundwater monitoring be
conducted at all RCRA landfills to assess the potential release of
chemical
[[Page 63487]]
constituents from the landfill, and that groundwater monitoring be able
to allow for the detection of chemical contamination at the point where
the constituents could migrate from the landfill to the hydraulically
down gradient limit of the landfill which extends down into the
uppermost aquifer under the landfill (40 CFR 264.95,
264.97(a)(3)301(c)). NRC also requires that groundwater monitoring be
conducted to allow for early detection and mitigation of radiological
contamination. However, the regulations are flexible regarding the
location of ground water monitoring wells and the extent of the buffer
zone surrounding the unit (10 CFR 61.12(b) and 10 CFR 61.53(c)). In
practice, ground water monitoring wells are located throughout the
facility and not only at the property boundary. The number and exact
locations of monitoring wells might not be the same as specified in
RCRA (10 CFR 264.95(a)), but they are located in a manner allowing
early detection of radionuclides release and appropriate mitigation to
provide sufficient protection against contamination of groundwater.
Because the NRC monitoring requirements may only require analyses
for radiological constituents (and not for chemical constituents),
releases of chemical constituents may not be detected (on-site or off-
site). If a joint release of radiological and chemical contamination
occurs from an LLRWDF into the groundwater, by the time the
radiological release is detected, the chemical release may have
traveled farther and be beyond the site boundary, if the chemical
constituents are more mobile in the subsurface environment than the
radiological constituents. While these situations are theoretically
possible, we concluded that the various NRC waste disposal
requirements, coupled with LDR requirements would minimize releases of
chemical constituents from the waste into the groundwater and thus
provide for protection of human health and the environment. The
protection of groundwater against chemical releases at LLRWDFs through
requirements of this proposed rulemaking is further described below in
section v.
v. How is the protection of ground water against chemical release at
LLRWDFs addressed in this proposal?
Low-level radioactive waste disposal facilities licensed by NRC or
Agreement States are not required to do groundwater monitoring for
chemical constituents. These facilities, however, require monitoring of
groundwater for release of radionuclides, must report any releases to
regulatory agencies, and take action to clean up such releases if of
concern.
As discussed above in sections I-iv, low-level radioactive waste
disposal facility siting, design, operation and closure are subject to
requirements comparable to those for RCRA hazardous waste disposal
facilities. Some hazardous waste disposal requirements are more
specific than the low-level waste disposal requirements for the
potential release of chemical constituents. For example, under RCRA, a
double liner and leachate collection system, groundwater monitoring for
chemical release, corrective action, and financial responsibility is
necessary for hazardous waste disposal. These requirements are not
found in NRC regulations. NRC regulations, however, require ground
water monitoring, corrective measures, and financial assurance for the
disposal of radioactive waste. NRC's facility siting criteria and waste
containerization restrictions provide similar outcomes for waste
management compared with EPA's requirements for a double liner and
leachate collection based on our discussions with NRC and Agreement
States. Also, if the radiation hazard becomes a groundwater concern,
then the licensed facility must take corrective measures during the
operating life of the facility and closure and post-closure care
periods. In addition, the disposal facility must provide funds to the
regulatory agency overseeing operations of the facility to State to
address such concerns once the State becomes responsible for the health
and environmental safety at the facility.
In certain instances, 10 CFR Part 61 requirements are stricter (for
example, minimizing water/waste contact) thus reducing potential for
generation of leachate. Additionally, NRC LLW disposal regulations
require that the waste be processed into a form which satisfies the
detailed waste characteristics and waste form criteria specified under
10 CFR 61. At a minimum, according to 10 CFR 61.56(a), all wastes
disposed at LLRWDFs must be processed into a solid form or packaged in
absorbent material ensuring that liquid content of the low-level waste
is less than 1.0% by volume found in 10 CFR 61.56(b)(2). A series of
technical requirements for these Class B or C LLW, including
compressive strength, leach resistance, biodegradation resistance and
immersion testing, is found in the NRC Waste Form Technical Position,
Revision 1 (January 24, 1991).
We have conducted technical analyses to determine the possibility
of a chemical release at the LLRWDFs. We have also conducted a
comparison between the drinking water standards and the LDR treatment
standards (that is, UTS levels) to determine the potential impact to
ground water in the event of a chemical release. Our finding from both
analyses indicates that the potential for a chemical release causing a
threat to the ground water is not significant. The analysis we
conducted was of the screening nature and not all-inclusive for
chemical constituents. The analysis was developed for the approximately
90 chemical constituents known to be present in LLMW or eligible NARM
waste based on our evaluation of the industry-provided data ( Ref. 10).
The information is further limited to chemical constituents where
values exist for MCL and LDR treatment standards. From the list of 90
MW constituents, 66 have values for MCL and 48 have values for UTS. The
constituents lacking UTS values are predominantly pesticides, but also
include some chlorinated solvents and inorganics (Ref. 7). We used
dilution-attenuation factors (DAFs) to allow for the comparing of waste
treatment levels to ground water drinking values. The use of DAFs
reflect subsurface transport (for example, advection and dispersion)
and fate (for example, sorption on solids and precipitation) phenomena.
DAFs were available for 44 of the constituents, with 23 originating
from the TC rule and the rest coming from HWIR95 proposal. We used a
DAF of 100 for the TC constituents and nationally based values for non-
TC constituents from other rulemaking efforts (TC Rule 55 FR 22684,
June 1, 1990). We believe that the waste analysis sample population is
representative of the mixed waste universe, as identified in the
nuclear power industry-provided data , and represents the effectiveness
of LDR treatment with regard to the drinking water MCL benchmark. Even
though the analysis is not inclusive for all chemicals, the treatment
for an identified chemical (for example, incineration of benzene) would
be similarly effective for another similar constituent (styrene).
A critical exemption condition under this proposal requires that
the LDR treatment standards are met. This requirement will reduce the
chemical contents in the waste to a fairly low level. Once disposed,
the likelihood of the chemical constituents to leach out to the ground
water would be substantially reduced due to the protection provided by
treatment and the disposal system.
[[Page 63488]]
First, we calculated what the potential concentrations would be in
leachate released from LDR treatment standard compliant hazardous waste
contaminated by LLW or NARM at LLRWDFs licensed by the NRC or an
Agreement State, and assessed what the leachate concentrations would be
at receptor wells in the vicinity of these LLRWDFs. We then compared
the drinking water standards with the leachate concentrations which we
calculated at these receptor wells, and concluded that the potential
threat to drinking water would be very low, if any.
Our comparison between the drinking water standard and the leachate
concentrations which we calculated for all constituents shows that the
two levels compare well (for 75% of 44 constituents the ratio is <1)
(Ref. 7). For eight out of 44, the ratio is less than 10, for four
constituents (benzo(a)pyrene, ethylene dibromide, hexachlorobenzene,
and dioxin), it is greater than 10 and in the case of
dibromochloropropane, it is greater than 10, but less than 200.
However, based on the mixed waste treatment practices and the available
waste volume data (with the LLMW generation rate of 108,000 cubic feet
per year), we believe that these constituents with a ratio of greater
than 1, are not generally present in these LLMW, and if present the
waste volumes are small compared to the quantities of low-level waste
disposed of in a disposal cell at LLRWDFs (Ref.7). Furthermore,
generally, the volume of the containerized, exempted (solids only)
waste disposed at these LLRWDFs licensed by NRC is expected to be quite
small relative to the total quantities of containerized LLW that would
be disposed in disposal cells at these facilities. (Ref: 7). Therefore,
we believe any potential release would be minor.
We evaluated NRC's LLRWDF siting, disposal unit engineering design,
containerization requirement, and post-closure care practices. NRC
siting regulations require that the disposal site provides long term
stability and waste isolation. Final cover requires capping of a
disposal unit such that infiltration of rain water and contact of waste
with infiltrated water is minimal. The final cover system, consisting
of compacted clay, high density polyethylene layer, and a vegetative
layer would reduce entry of water into the disposal unit. The
requirement for containerization of the waste also controls the
potential for waste/liquid contact and subsequent leachate production.
In addition, the landfill bottom design promotes short liquid/waste
residence time. Thus, the contact of liquid with the waste would be
minimal and that would act to minimize any hazardous constituent
concentration in the leachate (and hydraulic head--a function of the
presence of a water column and its thickness). These requirements
significantly reduce the likelihood for potential leachate generation
at LLRWDFs licensed by the NRC or Agreement States.
These findings and the technical analysis discussed above led us to
conclude that in the unlikely event of a chemical release, subsequent
groundwater contamination is not likely to be of significant concern.
To further verify our analyses, we discussed with state regulators, in
states where the LLRWDFs are located, regarding any past releases from
the existing LLRWDFs. Based on our investigation, we understand that
there have been no releases of radionuclides, above the regulatory
limits, detected in the ground water at offsite, commercial LLRWDFs
since 10 CFR 61 has been promulgated in 1982. The LLRWDFs that were
operational at that time were required to be upgraded to meet these
regulations. Since then, the two low-level waste disposal facilities at
Richland, WA and Barnwell, SC (that were operating before the
promulgation of the NRC regulations at 10 CFR 61) have been
retrofitted, and their licenses have been amended pursuant to 10 CFR 61
required standards. In conclusion, we believe that the disposal of
LLMW, meeting LDR treatment standards, in NRC or Agreement State
licensed LLRWDFs will not pose a threat to ground water and cause
concern for health risks. We recognize that some members of the public
may still be concerned about potential chemical releases at LLRWDFs.
Therefore, we are soliciting comments on whether we need to consider,
as a condition for the exemption, groundwater monitoring for chemical
releases. We are also requesting groundwater monitoring data from
LLRWDFs.
vi. Why would corrective measures and financial responsibility
provisions beyond those under 10 CFR 61 be unnecessary?
We believe NRC's waste form requirements and low-level waste
disposal cell design and capping requirements in combination with the
condition that the waste meet LDR treatment standards will minimize
water entry, leachate generation, and releases. Also, NRC requires
corrective measures to address groundwater contamination if of concern.
In the event of a release, based on our discussion with an Agreement
State, we understand that both the radioactive and chemical components
would be remediated because they are mixed together. This is especially
true if the concentrations exceed regulatory limits such as safe
drinking water levels or other alternate levels. Therefore, we believe
that the Agreement States would also require a facility during active
life, closure, and post closure phase to be responsive to releases and
subsequent health concerns related to chemical constituents. Hence, a
``corrective action'' requirement similar to that required under RCRA
Subtitle C is not necessary.
With regard to remediation, NRC's requirements for reporting and
taking corrective measures for radiological releases (including mixed
waste for the hazardous constituents) specify that a NRC-licensed
facility respond to and institute remedial action for a release of
radioactive waste. Also, in 10 CFR 61.53(b) a LLRWDF is required to
have plans for taking corrective measures. When promulgating the
exemption from RCRA Subtitle C for petroleum contaminated media and
debris, EPA determined that subjecting contaminated media to RCRA C-
based corrective action was not appropriate or necessary because an
alternative regulatory program (RCRA Subtitle I) would provide the
requisite degree of protection to human health and the environment (55
FR 11836). Our proposal to exempt LLRWDFs that accept exempted waste
for disposal from RCRA corrective action requirements is similar to the
petroleum contaminated media exemption. Based on our review of NRC
corrective requirements for potential radiological releases, including
mixed waste, we believe that those NRC requirements for addressing
releases associated with mixed waste are adequate. The likelihood of a
potential chemical release after the disposal of relatively small
quantities of RCRA-exempted waste (especially containing hazardous
constituents at or below the LDR treatment levels) of very low
concentration is negligible (based on our UTS/MCL comparison) (Ref. 7).
We, therefore, would expect imposition of RCRA Subtitle C-type
corrective action to be unnecessary.
With regard to financial assurance, the LLRWDFs are financially
responsible for clean up of groundwater during operations, if it poses
a health threat. In addition, 10 CFR 61 requires LLRWDFs to establish
financial assurance that will provide funding for closure and post-
closure care. The NRC or Agreement States are unlikely to require clean
up of radionuclides alone
[[Page 63489]]
in the event of mixed waste contamination. Therefore, we do not believe
that additional RCRA-like financial assurance is necessary to address
the unlikely event of chemical contamination of groundwater resulting
from disposal of the exempted waste at LLRWDFs.
In addition to the NRC-required corrective measures pursued by the
LLRWDF or the Agreement State, we retain our broad RCRA authority,
specifically, under RCRA 7003. Under this authority, we can bring suit
and require the responsible party(ies) to take necessary action. And,
under 40 CFR 302.4, we have independent response authority under
CERCLA, if a release of a hazardous substance is in excess of a
``reportable quantity.''
We request comment on whether for any reason under this conditional
exemption, we should require LLRWDFs to provide RCRA-like financial
assurance for cleanup of RCRA hazardous constituents.
vii. What are the uncertainties of our technical analysis?
This section identifies the primary sources of uncertainty
associated with the comparative and technical analysis described above,
and qualitatively describes how each may influence the results of these
analyses. Sources of uncertainty identified in our analyses include the
following:
Much of the data that we used to assess the protectiveness
of radioactive waste disposal regulations of NRC and EPA regulations
for hazardous waste landfills were not directly measured. For example,
we relied on existing reports and waste surveys; no independent field
study supported the technical work. Some of the most important and
sensitive parameters which we considered in our analyses include those
that describe waste composition; waste management practices; and site
characteristics. While not specifically addressed in our technical
approach, the parameters and exposures considered include physiologic
and behavioral exposure characteristics of the receptors; the physical,
chemical, and biochemical properties of the hazardous waste
contaminants; and toxicological effects indirectly factored in using
MCL and DAF benchmarks.
EPA did not have chemical constituent groundwater
monitoring data from wells surrounding LLRWDFs. This information would
help us to assess whether chemical constituent releases have occurred
at these facilities. While information was available on radioactive
constituents, the lack of chemical data results in the inability to
evaluate the relationship for fate and transport and the potential risk
to receptors for all possible constituent combinations. For example,
chemical constituents present could be either more or less mobile than
the radioactive constituents present, resulting in either an over-or
underestimation of chemical hazards.
LDR treatment to ground water protectiveness was of the
screening nature and not all-inclusive. The information is limited to
chemical constituents where values exist for MCL, LDR treatment
standards, and DAFs. The gaps in this data for where an MCL, UTS, or
DAF does not exist may result in either an overestimation or
underestimation of the potential chemical hazard to receptors.
We did not conduct a quantitative risk-based analysis
geared to the sites where disposal may occur. We also did not
quantitatively estimate the risk of developing cancer from the
potential exposure to chemical contaminants in the waste. The lack of a
quantitative risk analysis leads to sources of uncertainty in assessing
the most sensitive potential toxicological effects, exposure routes,
and constituents of concern within the waste. While our analysis did
factor in site-specific data, we did not address future siting of
LLRWDFs because of the difficulty of siting new facilities as seen in
recent site rejections (for example, Ward Valley in CA, Nebraska site).
As a result, our technical analyses might overestimate or underestimate
the potential chemical hazard to receptors.
The technical analysis did not specifically assess risks
to sensitive subpopulations and environments. The likelihood that
landfills are located in certain environmental areas where constituents
might move significantly with groundwater is uncertain. The waste
treatment, packaging, waste form requirement, and the existence of
physicochemical limitations (e.g., interactions between contaminants
and aquifer material), biological and chemical degradability of other
constituents that may be present (e.g., sandy or other porous soils),
soil organic matter and clay content, soil exchange capacity, dissolved
organics or organic acids in the groundwater, competing cations,
changes in soil environmental conditions such as organic waste matrix,
pH, redox potential or soil solution composition over time, and other
physical and chemical characteristics of the ground water and
geological medium, might significantly increase/decrease the mobility
of chemical constituents in groundwater in the short term (seasonal
variation) as well as long term (for example 10,000 years).
The likelihood that the NRC licensing process will apply
more stringent groundwater protection requirements and criteria to
mitigate radiological releases to the groundwater is given. With regard
to mitigating chemical releases to the groundwater, if any, by the
licensing agency we understand that the licensing agency would require
remediation of radioactive material in groundwater and work with any
other regulatory authorities to ensure that non-radioactive material
contamination is also addressed.
The extent to which State requirements will address some
of the key landfill design factors discussed above is uncertain.
There are potentially significant uncertainties regarding whether
and how exposure will occur. Also, our comparison between land disposal
regulations for NRC and EPA presents simplifications of reality. The
different approaches used by the two programs lead to a certain degree
of uncertainty in making the comparative analyses used in this study.
In addition, the variations in site-specific conditions and
implementation of the permit/license are virtually impossible to
completely account for when determining protection of human health and
the environment. The comparison was intended to approximate real-world
conditions and processes, and their relationships. Because of the
nature of our technical approach, the analysis we have pursued for this
proposal did not include all parameters or equations commonly seen in a
detailed risk-based modeling approach. Consequently, the technical
approach was based on various assumptions and simplifications, and as a
whole could result in either an overestimation or underestimation of
the potential comparative protectiveness between the EPA hazardous
waste and NRC LLW disposal systems.
3. What Did We Conclude From our Technical Analyses?
We evaluated NRC's LLRWDF siting, disposal unit engineering design,
containerization requirement, and post-closure care practices. We found
that as a whole these attributes provide comparable protection to that
provided by a RCRA hazardous waste landfill. NRC siting regulations
require that the disposal site provides long term stability and waste
isolation. Final cover requires capping of a disposal unit such that
infiltration of rain water and contact of waste with infiltrated water
is minimal.
[[Page 63490]]
The final cover system, consisting of compacted clay, high density
polyethylene layer, and an evapotranspiration (that is, evaporation of
water from top layers of cover and water removal by vegetation used as
an integral part of the final cover) rate greater than the rate of
precipitation would all but eliminate the entry of water into the
disposal unit. The requirement for containerization of the waste also
limits the potential for waste/liquid contact and subsequent leachate
production. In addition, the landfill bottom design promotes short
liquid/waste residence time; thus, the contact of liquid with the waste
would be minimal, minimizing hazardous constituent concentration in the
leachate and hydraulic head (a function of the presence of a water
column and its thickness). At the NRC or Agreement State regulated
facilities, the likelihood of water and waste contact is highly
unlikely and therefore, potential for leachate generation is
significantly reduced, thus mitigating the need for a liner and
leachate collection. We found many similarities between the two
programs (Ref. 7):
Locational requirements for siting of disposal units;
Prohibition on the disposal of free liquids;
Treatment of waste to reduce health hazards;
Disposal of waste in an engineered landfill; and
Extended period of institutional control.
There were a few differences between the two programs:
Hazardous waste landfills must have a liner and leachate
collection, while AEA only requires leachate collection;
Most low-level waste disposal can only occur as
containerized waste (in containers with a structural integrity of 100-
300 years), while hazardous waste disposal does not specify containers,
although the liner could be viewed as a form of containerization;
Since hazardous waste disposal regulations do not require
containerization of solid waste, the potential for particulate
emissions exists; and
NRC-requires institutional control for a minimum of one
hundred years under State control; while EPA-requires post closure care
for 30 years.
In addition, the adoption and enforcement of both the EPA and NRC
regulations by the States tends to make the State programs under both
EPA and NRC more protective than the Federal requirements. States
generally consider site-specific concerns (such as sensitive
populations or the local economy) in the design of their regulations
and the implementation of the state programs.
States may also consider site-specific concerns such as protection
of surface water, wetlands or endangered species. Thus, a State program
may be more stringent than the RCRA federal program or less stringent
(depending on the site performance assessment) as allowed under the
NRC. As part of the State-implemented conditional exemption, a State
may require groundwater monitoring for potential chemical releases or
inspect the LLRWDF-generated groundwater monitoring data for detecting
releases of radionuclides and use this information as a surrogate or
indicator for releases of hazardous constituents with similar fate and
transport characteristics.
In conclusion, even though EPA and NRC waste disposal regulations
follow different approaches, we believe that both ultimately achieve a
high level of protection.
H. Key Stakeholder Issue
In 1995, we published in the Federal Register, a notice of proposed
rulemaking (referred to as the HWIR95), which, among other things,
requested comments on several options for conditional exemption from
RCRA Subtitle C management requirements (60 FR 66344; December 21,
1995). One option we suggested (60 FR 66344, 66400-66401) would have
exempted mixed waste from Subtitle C hazardous waste disposal
regulations if they were treated to meet risk-based chemical
constituent concentration levels and were managed in disposal
facilities subject to controls imposed under the AEA. In response to
the HWIR95 proposal, the Department of Energy (DOE) submitted
alternative proposals for our consideration, which would have allowed
certain treated mixed wastes generated by DOE to be conditionally
exempted from RCRA Subtitle C hazardous waste disposal requirements, if
such mixed wastes were disposed in a DOE self-regulated LLRWDF. Several
State RCRA Agencies and Attorneys' General expressed concern over DOE's
proposals, and also were opposed extending the HWIR95 risk-based exit
levels to DOE mixed waste (see public comment in RCRA docket in
response to the HWIR95 proposal-Ref. 15). In particular, States were
concerned that they would no longer have regulatory jurisdiction over
DOE's RCRA-exempted radioactive waste once the wastes are disposed in
DOE's self-regulated LLRWDF. We encouraged DOE to work with the States
to resolve this issue, since States would be the implementing agencies
of a proposed RCRA exemption in most cases. The States and DOE held
discussions over a period of one year without reaching a resolution.
DOE has subsequently suspended the alternative proposals it had
submitted. DOE has also been working with the States to discuss its
LLMW disposal options and plan LLMW disposal capacities. The planning
of DOE's LLMW disposal facilities would eventually provide DOE with
relief to its LLMW disposal dilemma.
Given that the issue between the States and DOE was not resolved,
we tried in this proposal to provide some regulatory relief to DOE for
its LLMW while respecting the States' need to retain oversight of DOE
generated LLMW. We are, therefore, proposing to allow the exemption to
be applicable to all generators of LLMW or eligible NARM including DOE.
However, we limited the disposal of the RCRA-exempted waste to only
those LLRWDFs licensed and regulated by NRC or Agreement State. In this
way, DOE could utilize the conditional exemption for disposal while the
NRC or Agreement State radioactive material control programs would
retain the oversight of the RCRA-exempted waste. In addition,
commercial LLRWDFs have indicated that they would be willing to
consider accepting DOE conditionally exempt waste for disposal, if such
acceptance does not conflict with their agreement with the State low-
level waste compacts.
VII. Regulatory Impacts
We anticipate that implementation of this rule will result in
incremental benefits (from cost savings and risk reductions) and some
incremental costs. These costs are expected to be much smaller than the
overall benefits of the rule. (Ref. 14 and 17.)
We have based our assessment on the best data available; full
references and details are available in the Regulatory Impact Analysis
which accompanies today's proposal. We have also assumed that
generators will be willing and able to dispose of their waste in
LLRWDFs, within the scope of existing limitations on capacity and
acceptance criteria.
Significant uncertainties make it unusually difficult to estimate
the impacts of this rulemaking. In addition to uncertainties about the
quantities of LLMW generated in the U.S. there are also questions about
the eventual disposition of these wastes. Although this rulemaking
creates opportunities for disposal of much of this waste, these
opportunities also depend on as-yet undetermined action by State
regulatory
[[Page 63491]]
agencies, LLRW disposal facilities, and the generators themselves.
These uncertainties and assumptions, however, do not affect the
Agency's assessment of positive net benefits stemming from this rule;
they only affect the magnitude of that net benefit. To the extent that
any generators can take advantage of storage or disposal provisions of
this proposal, net benefits will accrue.
Sections A and B below provide further detail on benefits and costs
associated with this rule; Section C addresses economic impacts. We
base assessment of benefits and costs on a comparison of waste
management after implementation of this proposal as a final rule
compared with waste management in the absence of this rule.
A. What Are the Regulatory Benefits of This Rule?
In 1990, EPA, NRC and the Oak Ridge National Laboratory conducted a
survey of commercially generated low-level mixed waste (Ref. 8). A
report of the survey findings was published in 1992 under the title:
National Profile on Commercially Generated Low-Level Radioactive Mixed
Waste. As stated in the Executive Summary ``The * * * objective of the
work was to compile a national profile on the volumes, characteristics,
and treatability of commercially generated low-level mixed waste * * *
by major facility categories * * * [including] academic, industrial,
medical, and * * * government facilities and nuclear utilities.'' Based
on this research, and site visits in 1998 (see docket to ANPR), we
believe that there are a number of LLMW generators, who could benefit
from this proposed regulatory relief. Based on the 1992 Study (which
was weighted to develop a statistically valid estimate of the nation)
we estimated that the national generation rate of mixed waste was
108,000 cubic feet per year and that 4,000 cubic feet of mixed waste
was in storage for various reasons. (Ref. 14 and 17.) Nuclear utilities
accounted for roughly 10 percent of the total commercially generated
LLMW volume in the United States. ``The industrial category was
estimated to be the largest generator and accumulator of mixed waste,
with over 36% of the generation and nearly 57% of the storage, of the
total mixed waste in the United States in 1990.'' (Ref. 8, p. 40).
Based on our discussions with the regulated community, we understand
that commercial generators of LLMW have taken a number of steps,
including pollution prevention, waste minimization, and source
reduction (such as using water-based scintillation cocktails as opposed
to the solvent-based formulations), to reduce quantities of LLMW they
generate. Also, nuclear power plants have instituted steps for
controlling the use of organic solvents (for example, establishing
procedures to track quantities of organic solvents purchased, used, and
left over/discarded). Therefore, despite industrial growth over the
intervening years, we believe that the LLMW volumes generated today
would not be much different from those reported in 1992. Some federal
facilities also generate LLMW. The total volume of LLMW generated
annually by DOE facilities far exceeds the volume generated by the
commercial sector.
Benefits from this rule may accrue in the following areas:
Permitting cost savings: Those generators needing RCRA
permits only for storage or treatment of their mixed wastes will save
these permitting costs and associated corrective action costs.
Decay in Storage cost savings: The rule would allow
facilities to store certain wastes while their radioactivity decays.
These wastes could then be treated and disposed as hazardous waste,
which is less expensive than LLMW treatment and disposal. EPA estimates
aggregate cost savings from these waste streams will be between
$800,000 and $2,600,000 per year.
Other disposal cost savings: This rule would facilitate
disposal of wastes in LLRWDFs, possibly saving between $100,000 and
$800,000 each year. EPA has not estimated savings resulting from
reduced storage costs.
Other cost savings: Generators of mixed waste and Federal/
state RCRA regulating agencies are expected to save administrative
burden and costs because of this regulatory relief.
Risk Reductions: EPA anticipates that generators will take
advantage of relaxed storage restrictions to allow certain LLMW to
undergo decay in storage. NRC or Agreement State approves this process
which allows certain short-lived radionuclides in these wastes to
decay. The remaining decayed waste no longer meets the definition of
radioactive under the AEA. Since EPA does not expect these wastes to be
treated or handled during the radioactive decay process, waste handlers
in treatment and transportation will not be exposed to this
radioactivity. This decrease in exposure translates to an unquantified
risk reduction, attributable to the relaxed RCRA storage restrictions
in this proposed rule.
DOE may also save on transportation and disposal costs, to the
extent that they choose to meet the conditions for exemption and
dispose of wastes in commercial disposal facilities licensed by NRC or
an Agreement State. DOE would not gain permitting or storage cost
savings, since these regulations do not currently apply to DOE
facilities.
B. What Are the Costs of This Rule?
Generators, who are not meeting regulatory requirements for
disposal, may incur some increased spending for treatment and disposal
relative to their current costs under RCRA hazardous waste management
if this rule is implemented, but not relative to costs of meeting
existing RCRA Subtitle C regulations. This is because this rule will
open up disposal capacity for wastes which currently do not meet the
waste acceptance criteria of the existing LLMW disposal facility.
Without this rulemaking, these legacy wastes might simply continue to
be stored on site indefinitely, leaving the generators in violation of
RCRA permit requirements. These generators would incur not only storage
costs, but costs associated with being in violation of RCRA.
Generators taking advantage of disposal exemptions will incur
costs to meet notification conditions. EPA has not quantitatively
estimated costs of compliance with these notification conditions;
but expects these costs to be smaller than the administrative cost
savings that accrue to generators under this proposed rulemaking.
Under this rule, there will also be some increased costs to EPA and
state agencies overseeing management of mixed wastes. We expect these
entities to incur costs associated with notification conditions for
generators/treaters of LLMW (that meets the LDR treatment standards);
sending their waste for disposal at LLRWDFs and related implementation
costs. This will result in a small increase in costs for these
regulating bureaus. As a whole, costs to EPA and state agencies are
likely to be far lower, since these regulatory agencies will have
reduced administrative costs as noted in section A above.
C. What Are the Economic Impacts of This Rule?
By allowing LLMW to be disposed as LLW, this rule may have impacts
on the national market for disposal of LLW, although we have not
specifically modeled these impacts. The larger the volume to be added
to the disposal market, the greater the effects are likely to be. The
largest volumes of LLMW potentially to be disposed at commercial
LLRWDFs are those generated by the Department of Energy, including
wastes from site cleanup/remediation activities.
Overall, we expect aggregate economic impacts to be positive for
all
[[Page 63492]]
LLMW generators and LLW disposal facilities. Some generators may find
increased costs for treating and disposing of wastes which were
previously stranded on-site; without the rule, these facilities would
incur permitting costs, continuing storage costs, and potentially the
costs of being in violation of RCRA. The only possible negative impact
may fall upon the single mixed waste disposal facility which currently
accepts some LLMW for disposal. By allowing LLRWDFs to dispose of the
LLMW that meets Land Disposal Restrictions, this rule will introduce
some competition into the market for disposal of LLMW. Most of the
wastes affected by this proposed rule, however, are unlikely to have
been disposed at the existing facility (see the Regulatory Impact
Analysis for complete explanation. Ref. 14 and 17).
VIII. State Authorization
As of December 1998, a total of 40 states and one territory were
authorized for implementing RCRA mixed waste regulations. In States
(and territories) that have not received final authorization to
implement the RCRA program, the final rule would apply upon the
effective date. Since this rule is not being promulgated under HSWA
statutory authority, it would not apply under RCRA in States with final
authorization until those States amend their laws and become authorized
for it. Moreover, because this rule will likely be considered less
stringent than the current RCRA program (since the proposed rulemaking
suggests some additional flexibility for disposal or permitting),
States will not be required to adopt it.
We, however, encourage States to adopt this conditional exemption.
The conditional exemption provides a regulatory enforcement mechanism
for States to bring against generators who may be out of compliance
with the conditions. Under this regulatory framework, States would
retain their regulatory oversight and RCRA enforceability provisions
over the non-compliant claimant. A LLMW generator not meeting the
conditions for exemption from hazardous waste storage requirements and
those for exemption from the definition of hazardous waste when LLMW
disposal occurs at LLRWDFs licensed by the NRC or an Agreement State
may be subject to the penalties under the RCRA hazardous waste
enforcement program.
If States where LLRWDFs licensed by the NRC are located (for
example, South Carolina, Utah, and Washington) have concerns regarding
post-disposal releases of hazardous constituents in LLMW, these States
could address these concerns when adopting this rule. (See Section 3009
of RCRA.) A State may add a requirement for ground water monitoring for
potential chemical releases, or use the LLRWDF-generated groundwater
monitoring data for release of radionuclides as surrogate or indicator
data for releases of hazardous constituents with similar fate and
transport characteristics.
IX. Relationship With Other RCRA and Environmental Programs
A. What is the Relationship of This Proposal With Other RCRA Regulatory
Programs?
Below, we discuss how this proposed rule would affect other
relevant RCRA regulatory programs.
1. Does This Proposal Change How You Determine if a Waste is Hazardous?
No, the proposed rule is a conditional exemption from the RCRA
definition of hazardous waste. It does not change the general
requirements to determine if a waste is hazardous. Under current RCRA
regulations, if you generate a solid waste, you must first determine if
it is a hazardous waste as outlined in 40 CFR 262.11, Hazardous Waste
Determination. A generator of LLMW must also determine if the waste is
excluded from regulation under 40 CFR 261.4, Exclusions. Next, a
generator must determine whether the waste meets the regulatory
description for a listed hazardous waste in subpart D of part 261,
Lists of Hazardous Wastes. If the waste is not a listed hazardous
waste, the generator must then determine if the waste exhibits a
characteristic defined in subpart C of part 261.
LLMW that meets the LDR definition of non-wastewaters and exhibits
toxicity characteristic must be treated to meet the LDR treatment
standards and decharacterized to meet the TC regulatory limits at
Sec. 261.24 before it can exit RCRA Subtitle C and be disposed of as a
nonhazardous solid waste. Under the proposed conditional exemption
addressing disposal of LLMW, LLMW that is a TC waste must be treated to
meet the LDR treatment standards, but not the TC regulatory limit in
instances where the TC limit is lower than the LDR treatment level.
2. Can a LLMW or Eligible NARM be a Non-Hazardous Waste Under this
Proposal?
LLMW or eligible NARM meeting the LDR treatment standards in a
``pure untreated form'' (that is, as generated waste) would be a
conditionally exempt non-hazardous waste under this proposal. For the
waste to maintain a non-hazardous waste status, the generator must meet
all the other conditions for exemption proposed today.
3. How Will the RCRA-Exempted Waste Differ From Wastes Delisted per 40
CFR 260.22?
The evaluation criteria used for delisting vary from today's
proposal to conditionally exempt LLMW or eligible NARM from the RCRA
definition of hazardous waste. In today's proposed conditional
exemption the evaluation criteria are national and categorical. This
contrasts with the evaluation criteria for delisting which are based
upon a designated waste stream and are case specific. In delisting, we
evaluate the processes generating a specific waste stream to determine
the constituents likely to be present, as well as the potential
variability in the waste.
4. Will My Waste Analysis Plan of My RCRA-Permitted TSDF Change?
No, if you are an owner or an operator of RCRA-permitted or interim
status TSDF, also licensed by the NRC for managing LLW, and plan to
claim a conditional exemption, you remain subject to the waste analysis
and waste analysis plan requirements of part 268. DOE treatment
facilities treating LLMW to meet the proposed conditions for exemption
are also subject to the waste analysis and waste analysis plan
requirements of part 268.
If you are not a RCRA-permitted hazardous waste treatment facility
and elect to employ the proposed exemption procedures following
promulgation of a final LLMW rule, you must submit a RCRA part B permit
application.
5. Will the Proposed Rule Change How the RCRA Closure Requirements
Apply to My Disposal Facility?
If you're a disposal facility subject to NRC regulations for
disposal of LLW and you accept conditionally exempt LLMW the hazardous
waste facility closure requirements do not apply. If, however, it has
been determined that your disposal unit received RCRA-exempt mixed
waste from a generator who has violated the conditions for exemption,
the disposal cell where the exempted waste has been placed for
permanent disposal may become a RCRA regulated Subtitle C unit subject
to the requirements of 40 CFR parts 264 or 265, including closure
requirements, until you completed clean closure of the unit or unless
all of the wastes in the unit were delisted. You would normally be
required to complete closure
[[Page 63493]]
activities within 180 days after receiving the final volume of
hazardous waste. (See Time Allowed for Closure in 40 CFR 264.113(b) and
265.113(b).) However, RCRA closure requirements would allow you to
delay closure of your waste management units, while continuing to
receive the RCRA-exempted low-level mixed waste, if you meet certain
conditions. (See ``delay of closure'' options at 264.113(d) and
265.113(d).
We believe that the availability of a delay-of-closure option
provides much of the flexibility needed to allow for the uninterrupted
management of exempt waste, while providing assurance that the
protections afforded by the closure regulations for RCRA Subtitle C
units, such as evaluation of soil and groundwater at closure, are not
lost.
To minimize applicability of RCRA hazardous waste management
requirements, owners/operators of a NRC or Agreement State licensed
LLRWDF may consider some precautionary measures. For example, you may
require LLMW generators to provide you with any documentation (e.g.,
test results, process knowledge) that the generators have used to make
their LDR determination. Alternatively, you may require LLMW generators
to provide a representative LLMW sample for independent waste testing
and analysis to verify that the waste indeed meets the LDR treatment
levels. This would assist you to assure that a LLMW generator has not
mis-characterized the waste and/or to document compliance with
exemption requirements in the event a RCRA program agency exercises its
enforcement authority with regard to your facility.
6. How Does the Conditional Exemption Relate to RCRA Air Emission
Standards?
Under this proposal LLMW or eligible NARM meeting LDR treatment
standards is not likely to release volatile air emissions. Thus, it
would be exempt from RCRA Subtitle C regulations, including the air
emission standards. Once a LLMW or eligible NARM is no longer regulated
as hazardous, any unit in which the waste is managed (assuming no other
hazardous waste management in that unit) is no longer subject to RCRA
Subtitle C regulations, including 40 CFR Parts 264 and 265, Subparts
AA, BB, and CC.
B. What is the Relationship of this Rule to Other Environmental
Programs?
1. How are CERCLA Actions Affected by this Proposal?
The affect of today's proposed regulations on Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA)
actions depends on whether the waste will be managed on or off the
CERCLA site. Off-site disposal of CERCLA remediation waste must comply
with all conditions of today's proposal to take advantage of the
exemption provided. These wastes must go to a LLRWDF that is in
compliance with the 10 CFR Part 61 regulations and is licensed by the
NRC or Agreement State.
Management of mixed waste during on-site remediation waste must
meet all applicable, or relevant and appropriate requirements of
Federal or State environmental laws or justify a waiver from those
standards. This proposal requires that the disposal facility be
licensed and overseen by the NRC or Agreement State. On-site CERCLA
response action must comply with the substantive provisions of
environmental regulations and standards, but not the administrative
provisions. As such no permit or license is required for on-site
activities. In accordance with the National Contingency Plan and the
statute, today's proposed regulation is not expected to be an
applicable requirement at most CERCLA sites managing LLMW. However,
relevant and appropriate determinations are a site-specific
determination and these may or may not be deemed relevant and
appropriate given site-specific conditions. In general, we expect that
most CERCLA sites will meet both the substantive provisions of the RCRA
Subtitle C landfill requirements as well as the 10 CFR 61 requirements
for a LLRWDF.
2. How Might Clean Air Act Regulations be Affected?
This rule will not affect Clean Air Act regulations. LDR treatment
of LLMW or eligible NARM remains subject to the air emission standards
applicable to hazardous waste treatments under RCRA.
3. How Might Clean Water Act Regulations be Affected?
This rule will not affect Clean Water Act regulations. Any water
discharges from LDR treatment of LLMW or eligible NARM remain subject
to water discharge standards applicable to hazardous waste treatment
under RCRA.
X. Regulatory Assessment Requirements
A. Executive Order 12866: Determination of Significance
Under Executive Order (E.O.) 12866, (58 FR 51,735 (October 4,
1993)) the Agency must determine whether the regulatory action is
``significant'' and therefore subject to OMB review and the
requirements of the Executive Order. The Order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action.'' While
this notice of proposed rulemaking establishes few regulatory
requirements, it could ultimately result in a rule that would satisfy
one or more of the remaining criteria. Therefore, this action is a
``significant regulatory action'' under the terms of E.O. 12866. As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
the public record.
Under the terms of E.O. 12866, EPA is to prepare for any
significant regulatory action an assessment of its potential costs and
benefits. If that action satisfies the first of the criteria listed
above, this assessment must include, to the extent feasible, a
quantification of these costs and benefits, the underlying analyses
supporting such quantification, and an assessment of the costs and
benefits of reasonably feasible alternatives to the planned regulation.
This proposed rulemaking is expected to yield net benefits to society,
because of reduced waste management and administrative costs for both
generators of mixed waste and regulatory agencies, and reduced worker
exposures. A summary description of costs and benefits associated with
this proposal appears in section VII. An initial regulatory impact
analysis has been prepared and is available in the docket for today's
proposed rulemaking. EPA is requesting comment on the costs and
benefits of any of the possible regulatory changes discussed in this
proposed rulemaking, as well as on appropriate methodologies
[[Page 63494]]
for assessing them. We would like to hear from States, Tribes, members
of the public, and the regulated community.
B. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to the Office of Management and Budget (OMB), in a
separately identified section of the preamble to the rule, a federalism
summary impact statement (FSIS). The FSIS must include a description of
the extent of EPA's prior consultation with State and local officials,
a summary of the nature of their concerns and the agency's position
supporting the need to issue the regulation, and a statement of the
extent to which the concerns of State and local officials have been
met. For final rules subject to Executive Order 13132, EPA also must
submit to OMB a statement from the agency's Federalism Official
certifying that EPA has fulfilled the Executive Order's requirements.
This proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government as specified in Executive Order 13132,
because it will not impose any requirements on States or any other
level of government. As explained above, today's proposal would provide
regulatory flexibility for generators and treaters of Low Level Mixed
Waste by establishing a conditional exemption from RCRA Subtitle C
requirements, which States would not be required to adopt. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
C. Executive Order 12898: Environmental Justice
Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' as well as through EPA's April 1995, ``Environmental
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda
Report'' and National Environmental Justice Advisory Council, EPA has
undertaken to incorporate environmental justice into its policies and
programs. EPA is committed to addressing environmental justice
concerns, and is assuming a leadership role in environmental justice
initiatives to enhance environmental quality for all residents of the
United States. The Agency's goals are to ensure that no segment of the
population, regardless of race, color, national origin, or income,
bears disproportionately high and adverse human health and
environmental effects as a result of EPA's policies, programs, and
activities.
To address this goal, EPA considered the impacts of this proposed
rulemaking on low-income populations and minority populations. EPA
believes that due to low estimated waste volumes stored under the
storage exemption, any potential risk resulting from this proposal
would be very small. In addition, this waste would be stored according
to another regulatory authority (NRC) which offers comparable
protection. Under the disposal proposal, the exempted waste would be
disposed following NRC regulations which provide comparable protection
and low risk. The Agency does not currently have data on the
demographics of populations surrounding facilities which generate low-
level mixed waste that potentially could be affected if today's
proposed rule were finalized. However, we believe that the LLMW
generators storing the waste and the LLRWDFs do not appear to be
concentrated in areas where the minority or the disadvantaged groups
reside. Therefore, we believe there would not be disproportionately
high and adverse environmental or economic impact on any minority or
low-income group, or on any other type of affected community. Any
minority group or low-income group affected by alternatives described
in this proposed rulemaking has an opportunity to review and comment on
the proposal.
D. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) is
determined to be ``economically significant'' as defined under E.O.
12866, and (2) concerns an environmental health or safety risk that EPA
has reason to believe may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children, and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This proposed rulemaking is not subject to E.O. 13045 because it is
not an economically significant rule as defined by E.O. 12866. We do
not expect this rule to disproportionately affect children because we
do not expect children to be entering LLMW storage areas which are
locked and have limited access requirements imposed by NRC. Similarly,
disposal facilities must meet NRC regulations for public safety thus
reducing the likelihood of exposure of the nearby population including
children.
E. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under E.O. 13084, EPA may not issue a regulation that is not
required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. This order requires EPA to provide to the Office of
Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, E.O. 13084 requires EPA to
develop an effective process that permits elected officials and other
representatives of Indian tribal governments ``to provide
[[Page 63495]]
meaningful and timely input in the development of regulatory policies
on matters that significantly or uniquely affect their communities.''
Today's proposal does not significantly or uniquely affect the
communities of Indian tribal governments. There is no impact to tribal
governments as the result of generator's choosing to claim a
conditional exemption for storage units containing low-level mixed
waste. Accordingly, the requirements of section 3(b) of Executive Order
13084 do not apply to this rule.
F. The Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996) whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant economic
impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act (RFA) to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule will not have a significant economic impact on a
substantial number of small entities. EPA has examined this proposed
rulemaking's potential effects on small entities as required by the
Regulatory Flexibility Act and has determined that this action will not
have a significant economic impact on a substantial number of small
entities. The overall economic effect of this regulation has been
determined to be a net savings to all regulated entities who choose to
avail themselves of a conditional exemption for storage or disposal of
the mixed wastes they generate. Since this rule will not impose
additional costs on any entities, I hereby certify that this rule will
not have a significant economic impact on a substantial number of small
entities. This rule, therefore, does not require a regulatory
flexibility analysis.
G. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under Sec. 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, Sec. 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of Sec. 205 do not
apply when they are inconsistent with applicable law. Moreover,
Sec. 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
Sec. 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements. The UMRA excludes from the definition of ``Federal
private sector mandate'' duties that arise from participation in a
voluntary federal program and also generally excludes from the
definition of ``Federal intergovernmental mandate'' duties that arise
from participation in a voluntary federal program. The Agency's
analysis of compliance with the Unfunded Mandates Reform Act (UMRA) of
1995 found that the proposed rulemaking imposes no enforceable duty on
any State, local, or tribal governments or the private sector. Thus,
today's proposal is not subject to the requirements of Sec. 202 and
Sec. 205 of UMRA.
H . National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub L. No. 104-113, Sec. 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (for example, materials specifications, test
methods, sampling procedures, and business practices) that are
developed or adopted by voluntary consensus standards bodies. The NTTAA
directs EPA to provide Congress, through OMB, explanations when the
Agency decides not to use available and applicable voluntary consensus
standards. This proposed rulemaking does not involve technical
standards. In 1997, EPA in cooperation with NRC developed a testing
guidance for sampling and testing of mixed waste. Facilities subject to
this rulemaking may continue to use that guidance which allows analysis
of smaller samples, thus reducing exposure of workers to radiation
hazards.
I. Paperwork Reduction Act
Under the implementing regulations for the Paperwork Reduction Act,
an agency is required to certify that any agency-sponsored collection
of information from the public is necessary for the proper performance
of its functions, has practical utility, is not unnecessarily
duplicative of information otherwise reasonably accessible to the
agency, and reduces to the extent practicable and appropriate the
burden on those required to provide the information (5 CFR 1320.9). Any
proposed collection of information must be submitted, along with this
certification, to the Office of Management and Budget for approval
before it goes into effect.
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An
Information Collection Request (ICR) document has been prepared by EPA
(ICR No. 1922.01) and a copy may be obtained from Sandy Farmer, OPPE
Regulatory Information Division; U.S. Environmental Protection Agency
(2137); 401 M St., S.W.; Washington, D.C. 20460 or by calling (202)
260-2740.
This information collection is required to provide documentation of
conditional exemption from RCRA Subtitle C requirements. The exemptions
from RCRA Subtitle C under today's proposed action would require no
government approval before being effective. As such, information
collection, maintenance and reporting issues are especially important
due to the self-implementing nature of this action. Successful
implementation of
[[Page 63496]]
today's proposal will depend upon the documentation, certification and
verification provided by the information collection.
The general authority for this proposal is Sec. 2002(a), 3001,
3002, 3004, 3006 and 3007 of the Solid Waste Disposal Act of 1970, as
amended by the Resource Conservation and Recovery Act of 1976 (RCRA),
as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA),
42 U.S.C. 6912(a), 6921, 6922, 6924, and 6926. To the extent that this
rule imposes any information collection requirements under existing
RCRA regulations promulgated in previous rulemakings, those
requirements have been approved by the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and
have been assigned OMB control numbers 2050-0009 (ICR no. 1573, Part B
Permit Application, Permit Modifications, and Special Permits); 2050-
0120 (ICR 1571, General Facility Hazardous Waste Standards); 2050-0028
(ICR 261, Notification of Hazardous Waste Activity); 2050-0034 (ICR
262, RCRA Hazardous Waste Permit Application and Modification, Part A);
2050-0039 (ICR 801, Requirements for Generators, Transporters, and
Waste Management Facilities under the Hazardous Waste Manifest System);
2050-0035 (ICR 820, Hazardous Waste Generator Standards); and 2050-0024
(ICR 976, 1997 Hazardous Waste Report).
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR parts 9 and 48 CFR chapter 15. This
rule proposes new information collection requirements subject to OMB
review under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et
seq. Facilities must notify EPA or the Authorized State of their claim
for conditional exemption for a storage unit to be eligible for a
conditional exemption for stored low-level mixed waste. If they do not
choose to claim a conditional exemption, generators will have to comply
with the existing Subtitle C recordkeeping and reporting requirements
for the low-level mixed wastes they generate. This rule also proposes
notification requirements for generators or treaters of LLMW and
eligible NARM seeking a conditional exemption from the definition of
hazardous waste which would allow disposal of the waste meeting the
conditions for exemption in low-level radioactive waste disposal
facilities licensed by NRC or NRC Agreement States. If the generator or
treater of LLMW chooses not to claim an exemption, they remain subject
to the existing hazardous waste disposal requirements including
compliance with LDR treatment standards.
Some of the proposed requirements contained in today's action
entail new reporting and recordkeeping requirements for members of the
regulated public, if such change is adopted. EPA is interested in
comments on any and all aspects of potential paperwork requirements,
and in particular on how they should be structured to fulfill the
requirements that they have practical utility, are not unnecessarily
duplicative of other available information, and are the least
burdensome necessary to ensure that the disposal of conditionally
exempted low level mixed waste is safely managed.
If generators choose to avail themselves of the regulatory
flexibility discussed in this proposal, they will be subject to
notification and recordkeeping requirements described above. However,
such notification and recordkeeping would replace the paperwork burden
required for treatment and storage permits for their low-level mixed
wastes if they did not claim a conditional exemption. States (but not
Tribes) would have additional recordkeeping requirements for
generators' claims for conditional exemption notices for storage units,
and review of the self-implementing reinstatement notices for
generators who fail to meet all the conditions for storing mixed waste
and correct any violations.
We have prepared a full Information Collection Request (ICR) in
support of today's action. The total annual public burden associated
with this exemption is estimated to average 3.6 hours per respondent.
The reporting burden is estimated to average 1.9 hours per respondent
annually, and includes time for reading the regulations and preparing
and submitting notifications. The recordkeeping burden is estimated to
average 1.7 hours per respondent annually, and includes the time for
recording the results of inventories and inspections and maintaining
records pertaining to the mixed waste exemption.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
Comments are requested on the need for this information, the
accuracy of the provided burden estimates, and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques. Send comments on the ICR to the
Director, OPPE Regulatory Information Division; U.S. Environmental
Protection Agency (2137); 401 M St., S.W.; Washington, DC 20460; and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th St., N.W., Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence. Since OMB is required to make a decision concerning the
ICR between 30 and 60 days after November 19, 1999, a comment to OMB is
best assured of having its full effect if OMB receives it by December
20, 1999. The final rule will respond to any OMB or public comments on
the information collection requirements contained in this proposal.
XI. List of Comments Being Requested By EPA in This Proposal
In this proposal, we are seeking comment on several issues that
concern stakeholders potentially affected by this rule, and the public.
Please note, even if you commented on the Advance Notice of Proposed
Rulemaking (64 FR 10063-73, March 1, 1999), EPA is seeking your
comments on this proposal. Even if you submitted comments on the March
1, 1999 ANPR, you must submit comments on this revised and expanded
proposal by the deadline listed above in order to have your comments
considered for this proposed rulemaking. Below, we provide a list of
these comment requests, cross-referenced with the applicable section of
the proposal.
Storage
--We seek comment on ways we propose to address the issue of dual
regulation of LLMW storage, treatment, transportation, and disposal.
(III.A.)
--We would appreciate comments regarding the standard to use for
determining when the decayed waste
[[Page 63497]]
would reenter RCRA Subtitle C management. (V.A.1.)
--We invite comment on whether a time limit may be appropriate, and, if
so, on what basis that time limit might be established. (V.A.2.)
--We invite comment on how waste being stored for decay under 10 CFR
20.2001(a)(2) and 10 CFR part 35 can be completely decayed while at the
same time reenter RCRA Subtitle C without a gap in time during which
the waste is not regulated as either a hazardous or radioactive. Please
indicate in your comment what mixed wastes you generate that have
radionuclides with activity levels which would not qualify for the
conditional exemption we are proposing if it were based on whichever
occurred first-- ten half-lives of decay or not registering above
background levels. Also indicate how this limitation would affect your
management of the waste. (V.A.2).
--We seek comment on whether this condition should be: broad (and
include the loss of the exemption if any LLW storage requirement of the
NRC or Agreement State license is not met); or more specific (and limit
the loss of the exemption to those violations which may result in an
environmental impact). (V.B.2.(b))
--We request comment regarding both the definition of ``on-site'' and
the appropriateness of extending a conditional exemption to facilities
that own/operate storage facilities that do not meet our current
definition of ``on-site.''(V.B.2.(c))
--We also seek comment on whether the conditional exemption should
include a storage facility which serves as a consolidation point for
single entity. (V.B.2.(c))
--We request comment on whether we should include in the conditional
exemption for storage those mixed waste treatment facilities that
manage wastes from other generators. (V.B.2)
--We are interested in additional information regarding the safety of
commercial TSDFs that could provide a basis for expanding the scope of
the exemption to include off-site storage at commercial TSDFs. (V.B.2)
Disposal
--We are seeking comment and supporting information concerning the
applicability of this proposal to hazardous waste contaminated with
NARM. (VI.B.1)
--We are seeking comment on whether to provide for a 90-day waiting
period during reclaiming of an exemption. (VI.D.4)
--We request comment on whether, for any reason, this conditional
exemption should apply only to hazardous soils contaminated with
radioactive waste and treated to LDR standards derived from the
original waste codes, rather than to soils treated to alternative soil
treatment standards. (VI.E.1)
--We are asking for public comments on the approach of a state approved
site-specific, risk-based alternative to allow the disposal of
hazardous waste contaminated with radioactivity in any LLRWDFs
including DOE's LLRWDFs. (VI.F.)
--We seek comments on the site-specific risk-based variance approach,
and the types of guidance documents needed by EPA for site-specific
risk modeling. (VI. F.)
--We also seek comments on whether this approval would be preferred
over the proposed conditional exemption. (VI. F.)
--We are soliciting comments on whether we need to consider, as a
condition for exemption, groundwater monitoring for chemical releases.
(VI. G.)
--We are requesting groundwater monitoring data from LLRWDFs. (VI. G.)
--We request comment on whether for any reason under this conditional
exemption, we should require LLRWDFs to provide RCRA-like financial
assurance for cleanup of RCRA hazardous constituents. (VI. G.)
XII. Supporting Documents
1. EPA--Consent Decree. HWIR Settlement Agreement, April 11,
1997.
2. EPA--Side-bar letter to EEI/USWAG dated April 7, 1997.
3. ``Review of Waste Management Practices and Compliance History
at Nuclear Power Plants and Other Entities that Generate Low-Level
Mixed Waste.'' April 12, 1999.
4. ``Comparison of the EPA's RCRA Requirements and the NRC's
Licensing Requirements for the On-site Treatment (In Tanks and
Containers) and Storage of Low-Level Mixed Wastes at Nuclear
Facilities'', September 30,1999.
5. Comment Summary Document--Approach to Reinventing Regulations
of Storing Mixed Low-Level Radioactive Waste; Advance Notice of
Proposed Rulemaking (ANPR), September 21,1999.
6. Report to Utility Solid Waste Activities Group and Utility
Nuclear Waste Management Group on Comparative Assessment of the
Environmental Protection Agency's Regulations for Hazardous Waste
Tank Systems (40 CFR part 265, Subpart J) and Comparable Nuclear
Regulatory Commission Requirements, July 1988.
7. Technical Evaluation on Document for the Disposal of Mixed
Waste at Low-Level Radioactive Waste Disposal Facilities, Draft
Technical Background Document, July1999.
8. National Profile on Commercially Generated Low-Level
Radioactive Mixed Waste, NUREG/CR-5938, December 1992.
9. Meeting Notes for EPA Meeting with Low-Level Radioactive
Waste Disposal Facilities, December 7, 1998.
10. RCRA Hazardous Constituents and Waste Codes Associated with
Mixed Waste, December 1997.
11. Joint State/EPA Workshop on Mixed Waste Rulemaking, October
7-9, 1998, Meeting Summary.
12. Comparison of NRC and EPA's Waste Tracking and Related
Record Keeping Requirements, July 1999.
13. Technical Alternatives Considered for Evaluating
Protectiveness of Low-Level Waste Disposal Facilities, July 21,
1999.
14. Regulatory Impact Analysis: Relief from Regulatory
Requirements for Storage and Disposal of Mixed Waste, July 1999.
15. Summary of Public Comments on ``Contingent Management of
Mixed Waste'' Submitted in Response to the 1995 HWIR Proposal, July
1999.
16. The Management of Mixed Low-Level Radioactive Waste in the
Nuclear Power Industry, NUMARC/NESP-006, Nuclear Management
Resources Council, Inc., Washington, D.C., January 1990.
17. Regulatory Impact Analysis: Relief from Regulatory
Requirements for Storage and Disposal of Mixed Waste, Background
Documents, August 1999.
List of Subjects in 40 CFR Part 266
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements, Waste treatment and disposal.
Dated: October 29, 1999.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble 40 CFR part 266 is
proposed to be amended as follows:
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
1. The authority citation for part 266 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921,6922, 6924, 6926, 6927,
and 6934.
2. Part 266 is amended by adding subpart N to read as follows:
Subpart N--Conditional Exemption for Low-Level Mixed Waste Storage,
Treatment, Transportation and Disposal
Terms
Sec.
266.210 What special definitions apply to this subpart?
Storage Conditional Exemption and Eligibility
266.220 What does a conditional exemption for stored mixed waste
do?
[[Page 63498]]
266.225 What stored mixed wastes are eligible?
266.230 What must you do to qualify for a storage exemption?
Treatment
266.235 What waste treatment does this exemption allow?
Loss of Conditional Exemption
266.240 How could you lose your conditional exemption?
266.245 If you lose the exemption, can it be reclaimed?
Record Keeping and Reentry Into RCRA
266.250 What records must you keep besides those required by your
NRC or Agreement State license?
266.255 When is your low-level mixed waste no longer eligible for
the Storage Conditional Exemption?
Transportation and Disposal Conditional Exemption
266.305 What does the Transportation and Disposal Conditional
Exemption do?
266.310 Is your waste eligible for the Transportation and Disposal
Conditional Exemption?
266.315 What are the conditions you must meet?
Treatment Standard for Disposal
266.320 What treatment standard must your waste, either as-
generated or treated, meet?
Notification, Transportation, and Manifest
266.325 Before shipping exempt waste, whom must you notify?
266.330 How must you notify them?
266.335 Must you wait for any approvals?
266.340 What if the information in your notification changes?
266.345 What are the transportation and manifest conditions you
must meet?
266.350 When does the exemption take effect?
Disposal Facility
266.355 Where must you dispose of exempt waste to keep this
exemption?
266.360 Must your waste be containerized before disposal at the
LLRWDF to keep this exemption?
Record Keeping
266.365 What records must you keep at your facility and for how
long?
266.370 When must you make records available?
Loss of Conditional Exemption
266.375 How will your RCRA program agency verify your
Transportation and Disposal Conditional Exemption?
266.380 How could you lose your Transportation and Disposal
Conditional Exemption?
266.385 If you lose the Transportation and Disposal Conditional
Exemption can it be reclaimed?
Subpart N--Conditional Exemption for Low-Level Mixed Waste Storage
and Disposal
Terms
Sec. 266.210 What special definitions apply to this subpart?
This subpart uses the following special definitions:
Agreement State means a state that has entered into an agreement
with the NRC under subsection 274b of the Atomic Energy Act of 1954, as
amended (68 Stat. 919), to assume responsibility for regulating within
its borders source, special nuclear, or byproduct material in
quantities not sufficient to form a critical mass.
Eligible NARM means NARM that meets the acceptance criteria of a
LLRWDF licensed by NRC or an Agreement State in accordance with 10 CFR
part 61 and is contaminated by hazardous waste, and therefore, is
eligible for the transportation and disposal conditional exemption.
Facility as defined in 40 CFR 260.10.
Hazardous waste means any material which is defined to be hazardous
waste in accordance with 40 CFR 261.3, ``Definition of Hazardous
Waste.''
Land Disposal Restriction (LDR) treatment standards means treatment
standards, under 40 CFR part 268, that a RCRA hazardous waste must meet
before it can be disposed on land in a RCRA hazardous waste disposal
landfill.
License means a license issued by the Nuclear Regulatory
Commission, or NRC Agreement State, to users that manage radionuclides
regulated by NRC, or NRC Agreement States, under authority of the
Atomic Energy Act of 1954, as amended.
Low-Level Mixed Waste (LLMW) is a low-Level radioactive waste
containing a RCRA hazardous waste component.
Low-Level radioactive waste (LLW) is a radioactive waste containing
source, special nuclear, or by-product material which is not classified
as high-level radioactive waste, transuranic waste, spent nuclear fuel,
byproduct material as defined in section 11(e)(2) of the Atomic Energy
Act or NARM. (See also NRC definition of ``waste'' at 10 CFR 61.2)
Low-Level Radioactive Waste Disposal Facility (LLRWDF) means a
disposal facility licensed by the NRC or an Agreement State for the
disposal of low-Level waste.
Mixed Waste means a waste that contains both RCRA hazardous waste
and source, special nuclear, or by-product material subject to the
Atomic Energy Act of 1954, as amended.
Mixed Waste Treatment Facility means a waste treatment facility
permitted by EPA or an Authorized State to treat hazardous waste and
licensed by the NRC or an Agreement State to manage radioactive waste.
Naturally Occurring and/or Accelerator-produced Radioactive
Material (NARM) means radioactive materials not covered under the AEA
that are naturally occurring or produced by an accelerator. The
naturally occurring radioactive material (NORM) is defined below. NARM
is regulated by the States under State law, or by DOE under DOE Orders.
Naturally Occurring Radioactive Material (NORM), a subset of NARM,
refers to materials not covered under the AEA whose radioactivity has
been enhanced usually by mineral extraction or processing activities.
NRC means the Nuclear Regulatory Commission. or its duly authorized
representative (for example, an NRC Agreement State that regulates
management of low-Level waste).
RCRA program agency means EPA, or the state agency authorized to
implement the RCRA program.
We, within this subpart, means the EPA, or the EPA Regional Office.
You means a generator, treater, or other handler of low-level mixed
waste except for the storage exemption provisions in Sec. 266.220-
266.255 where it means only a generator.
Storage Conditional Exemption and Eligibility
Sec. 266.220 What does a conditional exemption for stored mixed waste
do?
A conditional exemption exempts certain low-Level mixed waste from
the regulatory definition of hazardous waste in Sec. 261.3 during
storage if you, as the generator, have a storage unit and waste which
meet specified conditions in Secs. 266.225 through 266.255.
Sec. 266.225 What stored mixed wastes are eligible?
Low-Level mixed waste defined in Sec. 266.210 is eligible for a
conditional exemption if managed subject to NRC or Agreement State
regulations, and if it is:
(a) Generated at your facility (Mixed waste generated at another
facility and shipped to your facility for storage or treatment requires
a storage permit and is ineligible for the storage exemption.);
(b) Stored on-site in a tank or container meeting the requirements
of your NRC or Agreement State license for storing low-Level waste; and
(c) Stored in compliance with chemical compatibility requirements
of a tank or container (See Sec. 264.177, or
[[Page 63499]]
Sec. 264.199 of this chapter), or (Sec. 265.177, or Sec. 265.199 of
this chapter).
Sec. 266.230 What must you do to qualify for a storage exemption?
You must meet all the following conditions.
(a) Have a valid NRC or Agreement State license.
(b) Comply with the requirements of your license for storing low-
Level mixed waste.
(c) Meet the eligibility requirements of Sec. 266.225.
(d) Notify us (EPA) by certified mail, return receipt requested,
that you claim a conditional exemption for a storage unit containing
low-Level mixed waste. You must notify us of your claim either within
90 days of the effective date of this rule in your State, or within 90
days of when a storage unit is first used to store LLMW for which you
claim a conditional exemption.
(e) Certify that facility personnel who manage stored mixed waste
have been trained in a manner that ensures that the low-Level mixed
waste is safely managed and includes training in chemical waste
management and hazardous materials incidence response as outlined in
the personnel training standards found in 40 CFR 265.16(a)(3).
(f) Inventory your stored low-level mixed waste at least annually;
inspect it at least quarterly for compliance with the other conditions
of the paragraph; update your inventory records of conditionally exempt
LLMW quarterly; and maintain records for three years after the waste is
sent for disposal, or in accordance with NRC requirements, whichever is
longer.
(g) Maintain an accurate emergency plan and provide it to all local
authorities who may have to respond to an emergency. Your plan must
describe emergency response arrangements with local authorities;
describe evacuation plans; list the names, addresses, and telephone
numbers of all facility personnel qualified to work with local
authorities as emergency coordinators; and list emergency equipment.
(See 40 CFR part 265, subpart D.)
Treatment
Sec. 266.235 What waste treatment does this exemption allow?
Allowable treatment of your low-Level mixed waste includes only on-
site treatment within a tank or container covered by the provisions of
your NRC or Agreement State license. The treatment may include
solidification, neutralization, or other forms of stabilization, but
excludes thermal treatment, such as incineration.
Loss of Conditional Exemption
Sec. 266.240 How could you lose your conditional exemption?
(a) The conditional exemption applies only while all the conditions
are met. (See Sec. 266.230)
(b) You automatically lose your exemption for failure to meet any
of the conditions. (See Sec. 266.230).
(c) You must report to us and the NRC or Agreement State in writing
of any failure to meet a condition within 30 days of learning of the
failure. If the failure may endanger human health or the environment,
you must also notify us, EPA or RCRA program agency orally within 24
hours. Failures that endanger human health or the environment include,
but are not limited to, discharge of a CERCLA reportable quantity or
other leaking or exploding tanks or containers, or detection of
radionuclides or hazardous constituents in the leachate collection
system of a storage area. If the failure may endanger human health or
the environment, you must follow the provisions of your emergency
contingency plan.
Sec. 266.245 If you lose the exemption, can it be reclaimed?
(a) You may reclaim your exemption if:
(1) You again meet the requirements of Sec. 266.230; and
(2) You send us, the RCRA program agency, a notice that you are
reclaiming the exemption. The notice must do the following:
(i) Explain the circumstances of each failure.
(ii) Certify that you have corrected each failure that caused you
to lose the exemption and that your waste again meets all the
conditions as of the date you specify.
(iii) Demonstrate that each failure is not likely to recur because
of specific steps (list them) that you have implemented in your LLMW
compliance activities.
(iv) Include any other information you want us to consider when we
review your notice reclaiming the exemption.
(b) We may terminate a reclaimed conditional exemption if we find
that your claim is inappropriate based on factors such as: you have
failed to correct the problem; you explained the circumstances of the
violation unsatisfactorily; or you failed to show that the violation is
unlikely to recur. In reviewing a reclaimed conditional exemption under
this section, we may add requirements to the exemption to ensure and
document proper storage to protect human health or the environment.
Record Keeping and Reentry Into RCRA
Sec. 266.250 What records must you keep besides those required by your
NRC or Agreement State license?
You must keep your initial notification records and records of your
LLMW inventories and inspections. At a minimum you must inventory waste
annually, inspect quarterly, and update your records of conditionally
exempt LLMW at least quarterly. You must maintain storage records for
three years after the waste is sent for disposal, or in accordance with
NRC requirements under 10 CFR part 20, whichever is longer.
Sec. 266.255 When is your low-Level mixed waste no longer eligible for
the Storage Conditional Exemption?
(a) When your LLMW has met the requirements of your NRC or
Agreement State license for decay-in-storage and can be disposed of as
non-radioactive waste, then the conditional exemption for storage no
longer applies. At that point your waste is subject to hazardous waste
regulation as ``newly generated'' hazardous waste under the relevant
sections of 40 CFR Parts 260-271.
(b) When your waste is transported off-site for any reason other
than to a LLRWDF under the Disposal Conditional Exemption at
Sec. 266.305, it is no longer eligible for the Storage Conditional
Exemption.
Transportation and Disposal Conditional Exemption
Sec. 266.305 What does the Transportation and Disposal Conditional
Exemption do?
The conditional exemption for transportation and disposal gives
you--the mixed waste generator, treater, or other handler--an alternate
way to manage your low-Level mixed waste. If this waste meets Land
Disposal Restrictions treatment standards, and is subject to NRC or
Agreement State's transportation, manifest and disposal regulations, it
will be exempted from RCRA Subtitle C hazardous waste manifest,
transportation and disposal regulations. Currently, low-Level mixed
waste meeting LDR treatment standards must be managed in accordance
with both NRC or Agreement State's and RCRA Subtitle C's
transportation, manifest and disposal regulations. To obtain and keep
the Transportation and Disposal Conditional Exemption, you must meet
all conditions under the Transportation and Disposal Conditional
Exemption at all times.
[[Page 63500]]
Sec. 266.310 Is your waste eligible for the Transportation and
Disposal Conditional Exemption?
To be eligible for this exemption, your waste must be:
(a) A low-Level radioactive waste, or NARM waste as defined in
Sec. 266.210 which meets the acceptance criteria of a LLRWDF licensed
by the NRC or an Agreement State in accordance with 10 CFR part 61; and
(b) A RCRA hazardous waste as defined in 40 CFR 261.3.
Sec. 266.315 What are the conditions you must meet?
You must do the following to obtain and keep the Transportation and
Disposal Conditional Exemption:
(a) Meet and continue to meet LDR treatment standards per
Sec. 266.320.
(b) Have received written confirmation that you have notified the
designated regulatory agencies of the exemption per Sec. 266.325(a),
Sec. 266.330(a), and Sec. 266.340.
(c) Even if you self-regulate under the Atomic Energy Act, you must
manifest and transport the waste according to NRC regulations per
Sec. 266.345.
(d) Ensure the exempted waste is containerized per Sec. 266.360,
and disposed at a designated LLRWDF per Sec. 266.355.
(e) Keep and submit records of the exemption as required under
Sec. 266.365, and Sec. 266.370.
Treatment Standard For Disposal
Sec. 266.320 What treatment standard must your waste, either as-
generated or treated, meet?
Your LLMW or eligible NARM must meet, or be treated to meet, LDR
treatment standards specified in Secs. 268.40-268.49 of this chapter.
The waste must also meet RCRA definition of non-wastewater as specified
in 40 CFR 268.2(d) of this chapter prior to disposal.
Notification, Transportation and Manifest
Sec. 266.325 Before shipping exempt waste, whom must you notify?
(a) You must notify the following parties, in writing, every time
you intend to claim an exemption for a newly generated waste stream (a
waste stream whose RCRA hazardous waste codes differ from those of the
previously claimed waste streams):
(1) The RCRA program agency (EPA or state) regulating your low-
level mixed waste activities;
(2) The RCRA program agency (EPA or state) in the state where the
LLRWDF is located; and
(3) The NRC or Agreement State regulating the LLRWDF where the
waste will be disposed.
(b) You must also notify the LLRWDF receiving your waste, in
writing, every time you plan to ship any exempted waste to the LLRWDF.
Sec. 266.330 How must you notify them?
(a) You must notify all parties in Sec. 266.325(a) by sending your
notification by certified mail with return receipt requested. A
``return receipt'' is any document that demonstrates the receipt of the
notification package by the regulatory agencies. It can be the receipt
of delivery by the U.S. Postal Service, or a mail delivering service.
Include at least the following in the notice:
(1) A dated cover letter signed by an officer or authorized
employee that claims the exemption and includes the following:
(i) Your facility's name, address, and RCRA ID number.
(ii) The RCRA hazardous waste codes.
(2) A brief, general description of the process or operation that
generated the waste.
(3) The quantity of each waste stream you will ship for disposal
and an estimate of the average monthly, maximum monthly, average
annual, and maximum annual quantities of the waste for which you are
claiming an exemption.
(4) Name, address, and NRC or Agreement State license number of the
LLRWDF that has agreed to receive your waste.
(5) A certification for compliance with LDR treatment standards as
follows:
(i) A generator at Sec. 268.7(a)(3)(i) of this chapter.
(ii) Treatment facilities at Sec. 268.7(b)(4) of this chapter.
(6) A certification signed by you, or your authorized
representative, that the information contained in the notification
package is true, accurate, and complete.
(b) You must notify the LLRWDF by certified mail with return
receipt requested. Include at least the following:
(1) The cover letter described in Sec. 266.330(a)(1).
(2) The shipment number that will appear on block number 5 of NRC
or Agreement State's Uniform Low-Level Radioactive Waste Manifest Form
540.
Sec. 266.335 Must you wait for any approvals?
Your exemption is self-implementing. The parties you notify needn't
review your notification or approve the exemption. You may ship waste
that meets LDR treatment standards to the LLRWDF once certified mail
receipts have come back to you from all parties required to be
notified.
Sec. 266.340 What if the information in your notification changes?
(a) Submit any change in any information submitted under
Sec. 266.330 to all parties you notified initially.
(b) Do it within 10 business days of first learning of a change.
Sec. 266.345 What are the transportation and manifest conditions you
must meet?
Even if you self-regulate under the authority of the Atomic Energy
Act, you must meet the NRC or Agreement State transportation
requirements in 10 CFR 71.5, and the NRC or Agreement State manifest
requirements in 10 CFR 20.2006. Your exempted waste is not subject to
the RCRA hazardous-waste transportation and manifest requirements.
Sec. 266.350 When does the exemption take effect?
Your waste becomes exempt from RCRA Subtitle C manifest,
transportation and disposal once you do the following:
(a) Your waste meets LDR treatment standards;
(b) You have received return receipts that you have notified the
specified regulatory agencies;
(c) You have manifested the waste according to NRC or Agreement
State manifest regulation at 10 CFR 20.2006; and
(d) You have placed the waste on a transportation vehicle bound for
an LLRWDF licensed by NRC or an Agreement State.
Disposal Conditions
Sec. 266.355 Where must you dispose of exempted waste to keep this
exemption?
You must dispose of your RCRA-exempted waste in a LLRWDF licensed
by NRC or Agreement State under 10 CFR part 61.
Sec. 266.360 Must your waste be containerized before disposal at the
LLRWDF to keep this exemption?
You must arrange to have your exempted waste containerized before
it is placed in a disposal cell. The container can not be cardboard or
fiberboard boxes.
Record Keeping
Sec. 266.365 What records must you keep at your facility and for how
long?
You must keep records as follows:
(a) You must continue to follow existing applicable record keeping
requirements under Secs. 264.73 and 268.7 of this chapter in order to
demonstrate
[[Page 63501]]
that your waste has met LDR treatment standards prior to your claiming
the exemption.
(b) You must keep a copy of all notifications required under
Sec. 266.330, sent to parties listed in Sec. 266.325 of this subpart
for as long as the Mixed Waste exemption continues to be active, and
for the three years that follow.
(c) You must keep a copy of return receipts of the notification
package from all those parties for as long as the Mixed Waste exemption
continues to be active, and for the three years that follow.
(d) You must keep a copy of all of NRC or Agreement State's
radioactive waste manifests which included a shipment of the exempted
waste, and you must attach the accompanying cover letter as described
in Sec. 266.330(a)(1) to it. Keep these records until closure of the
disposal facility, or closure of your facility if it happens before the
disposal facility closure.
(e) You must keep a copy of any notice to any regulatory agency
that tells of any change to your initial notification for as long as
the Mixed Waste exemption continues to be active, and for the three
years that follow.
(f) For generators who self-regulate under the Atomic Energy Act,
in addition to the records specified in Sec. 266.365(a) through (e),
you must keep all other documents related to tracking the waste as
required under 10 CFR 20.2006.
Sec. 266.370 When must you make records available?
Make all records relative to your exemption available to your RCRA
program agency in these cases:
(a) Immediately during an on-site inspection.
(b) Within five business days when and as requested by EPA.
Loss of Conditional Exemption
Sec. 266.375 How will your RCRA program agency verify your
Transportation and Disposal Conditional Exemption?
Your RCRA program agency may inspect your facility, audit your
records regarding the exemption, obtain samples and perform any other
activities authorized under RCRA including under section 3007, 42
U.S.C. 6927 or other information gathering authority. In an enforcement
action, the burden of proof to establish compliance with this subpart
falls on you. Nothing in Subpart N shall be interpreted or applied to
restrict any inspection or enforcement authority under RCRA, 42 U.S.C.
6901 et seq. Notwithstanding any other provisions of these regulations,
actions may also be brought pursuant to Section 7003 of RCRA, 42 U.S.C.
6973, relating to imminent and substantial endangerment.
Sec. 266.380 How could you lose your Transportation and Disposal
Conditional Exemption?
(a) If you fail to satisfy any conditions listed under Sec. 266.315
you will lose your manifest, transportation, and disposal exemption.
When you lose your exemption, you must immediately manage your waste as
RCRA hazardous waste and you may be subject to enforcement action and
fines and penalty under RCRA.
(b) If you fail to satisfy the requirements listed under
Sec. 266.325(b) and/or Sec. 266.330(b), you may be subject to
enforcement action and fines and penalty under RCRA. However, you will
not lose your manifest, transportation, and disposal exemptions.
(c) If you fail to satisfy any of the conditions and requirements
under the Transportation and Disposal Conditional Exemption you must
notify all parties listed in Sec. 266.325(a) in writing, with return
receipt requested, of the violation within 30 days of learning of the
violation.
Sec. 266.385 If you lose the Transportation and Disposal Conditional
Exemption can it be reclaimed?
(a) You may reclaim your exemption if:
(1) You again meet the requirements of Sec. 266.315; and
(2) You send us, the RCRA program agency, a notice that you are
reclaiming the exemption. The notice must do the following:
(i) Explain the circumstances of each failure.
(ii) Certify that you have corrected each failure that caused you
to lose the exemption and that your waste again meets all the
conditions as of the date you specify.
(iii) Demonstrate that each failure is not likely to recur because
of specific steps (list them) that you have implemented in your LLMW
compliance activities.
(iv) Include any other information you want us to consider when we
review your notice reclaiming the exemption.
(b) We may terminate a reclaimed conditional exemption if we find
that your claim is inappropriate based on factors such as: you have
failed to correct the problem; you explained the circumstances of the
violation unsatisfactorily; or you failed to show that the violation is
unlikely to recur. In reviewing a reclaimed conditional exemption under
this section, we may add requirements to the exemption to ensure and
document proper waste management to protect human health or the
environment.
[FR Doc. 99-29068 Filed 11-18-99; 8:45 am]
BILLING CODE 6560-50-p
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