Joint NRC/EPA Guidance on Testing Requirements for Mixed Radioactive and Hazardous Waste

NUCLEAR REGULATORY COMMISSION

ENVIRONMENTAL PROTECTION AGENCY

Joint NRC/EPA Guidance on Testing Requirements for Mixed

Radioactive and Hazardous Waste

AGENCIES: Environmental Protection Agency and Nuclear Regulatory

Commission.

ACTION: Publication of Final Joint Guidance on the Testing Requirements

for Mixed Waste.

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[[Page 62080]]

SUMMARY: The Nuclear Regulatory Commission (NRC) and the Environmental

Protection Agency (EPA) are jointly publishing herein final guidance on

the testing requirements for mixed radioactive and hazardous waste

(mixed waste). NRC and EPA began development of this guidance in 1987

and a draft was completed in 1989. EPA's adoption of the Toxicity

Characteristic Leaching Procedure (TCLP) in 1990 required the agencies

to substantially revise the guidance. The agencies issued a draft for

public comment on March 26, 1992. A public meeting was held on April

14, 1992, in Washington, D.C., to solicit oral comments on the draft

guidance document. The comment period ended on May 26, 1992. NRC and

EPA received more than 700 requests for copies of the draft guidance

document and NRC received approximately 100 written comments from 20

individuals and groups, including comments resulting from a review of

the guidance by the U.S. Department of Energy. NRC and EPA staffs have

incorporated the appropriate comments into the final guidance.

The guidance emphasizes the use of process knowledge, whenever

possible, to determine if a waste is hazardous as a way to avoid

unnecessary exposures to radioactivity. The guidance also provides

guidelines for generators wishing to rely on process knowledge as the

basis for evaluating their waste.

The guidance offers two strategies for helping to maintain

radiation exposures As Low As is Reasonably Achievable (ALARA) if

testing is required. These strategies are the use of a sample size of

less than 100 grams, as long as the resulting test is sufficiently

sensitive to measure the constituents of interest at the regulatory

levels prescribed in the TCLP, and the use of surrogate materials, as

long as they are chemically identical to the mixed waste and faithfully

represent the hazardous constituents in the waste mixture.

The guidance also discusses other allowable sampling and testing

procedures, such as representative drum sampling, or sampling from

drums containing lower concentrations of radioactive material, as long

as the chemical contents are identical to those found in the drums with

higher concentrations of radioactive material.

FOR FURTHER INFORMATION CONTACT: Dominick A. Orlando, Division of Waste

Management, Office of Nuclear Material Safety and Safeguards, U.S.

Nuclear Regulatory Commission, Washington, D.C., 20555, telephone (301)

415-6749 or Newman Smith, Permits and State Programs Division, Office

of Solid Waste, U.S. Environmental Protection Agency, Washington, D.C.,

20460, telephone (703) 308-8757.

Dated at Rockville, MD and Washington, DC this 7th day of

November, 1997.

For the U.S. Nuclear Regulatory Commission.

Carl J. Paperiello,

Director, Office of Nuclear Material Safety and Safeguards.

For the U.S. Environmental Protection Agency.

Elizabeth Cotsworth,

Acting Director, Office of Solid Waste.

SUPPLEMENTARY INFORMATION:

Clarification of RCRA Hazardous Waste Testing Requirements for Low-

Level Radioactive Mixed Waste--Final Guidance

Disclaimer: The policies discussed in this document are not

final Agency actions, but are intended solely as guidance. They are

not intended, nor can they be relied upon, to create any rights

enforceable by any party in litigation with the United States. The

Environmental Protection Agency and Nuclear Regulatory Commission

may follow the guidance, or act at variance with the guidance, based

on an analysis of specific site circumstances. The agencies also

reserve the right to change the guidance at any time, without public

notice.

Acronyms/Abbreviations Used in This Guidance

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Acronym/abbreviation Definition

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AEA.................................... Atomic Energy Act.

ALARA.................................. As Low As Is Reasonably

Achievable.

BDAT................................... Best Demonstrated Available

Technology.

CFR.................................... Code of Federal Regulations.

EP..................................... Extraction Procedure (toxicity

test).

EPA.................................... Environmental Protection

Agency.

FR..................................... Federal Register.

HSWA................................... Hazardous and Solid Waste

Amendments.

LDR.................................... Land Disposal Restrictions.

NRC.................................... Nuclear Regulatory Commission.

OSWER.................................. Office of Solid Waste and

Emergency Response.

RCRA................................... Resource Conservation and

Recovery Act.

SW-846................................. Test Methods for Evaluating

Solid Wastes, Physical/

Chemical Methods.

TC..................................... Toxicity Characteristic.

TCLP................................... Toxicity Characteristic

Leaching Procedure.

TSDF................................... Treatment, Storage or Disposal

Facility.

WAP.................................... Waste Analysis Plan.

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I. Background

Mixed waste is defined as waste that contains both hazardous waste

subject to the requirements of the Resource Conservation and Recovery

Act (RCRA) and source, special nuclear, or by-product material subject

to the requirements of the Atomic Energy Act (AEA).1 This

guidance addresses testing activities related to mixed low-level waste

(LLW), which is a subset of mixed waste.2 The term ``mixed

waste,'' for the purposes of this document, will refer to mixed LLW.

Additional information on the testing of hazardous wastes, which could

apply to both mixed LLW and other types of mixed waste (e.g., high-

level and transuranic mixed waste), is found in Appendix A. The

information below is intended for use by Nuclear Regulatory Commission

(NRC) licensees that may not be familiar with the hazardous waste

characterization and testing requirements that apply to mixed waste.

The guidance assumes that the reader is familiar with the NRC's

regulations and regulatory framework for the management of radioactive

material and focuses on compliance with the Environmental Protection

Agency's (EPA's) requirements for the management of hazardous waste.

Although it is written for commercial mixed waste generators, the

guidance may also be useful for Federal facilities that generate mixed

waste.

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\1\ See 42 U S.C. Sec. 6903 (41), added by the Federal Facility

Compliance Act of 1992 (FFCA).

\2\ See revised Guidance on the Definition and Identification

of Commercial Low-Level Radioactive and Hazardous Waste and Answers

to Anticipated Questions, October 4, 1989.

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Users of this guidance should have a good understanding of how

mixed waste is defined (see above), and what authority, or authorities,

regulate mixed waste testing activities. The hazardous component of

mixed waste is regulated by EPA in those States where EPA implements

the entire RCRA Subtitle C hazardous waste program (i.e., unauthorized

States). Currently, EPA regulates mixed waste in Alaska, Hawaii, Iowa,

Puerto Rico, the Virgin Islands, and American Samoa. In most instances

mixed waste is regulated by State governments. Thirty-nine States and

one territory (Guam) have been delegated authority by EPA to implement

the base RCRA hazardous waste program and to regulate mixed waste

activities (see 51 FR 24504, July 3, 1986, and Appendix B). These

States are referred to as ``mixed waste authorized States.'' Nine

additional States are authorized for the RCRA base hazardous waste

program but have not been delegated authority by EPA to

[[Page 62081]]

regulate mixed waste.3 In these States mixed waste is not

regulated by EPA, but may be regulated by States under the authority of

State law. It is important that licensees contact the State hazardous

waste agencies in authorized States to determine the specific testing,

analysis, and other hazardous waste requirements that may apply to

mixed waste managed in their State, because their State may have more

stringent requirements than the Federal requirements discussed in this

guidance.

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\3\ The RCRA base hazardous waste program is the RCRA program

initially made available for final authorization and includes

Federal regulations up to July 26, 1982. However, authorized States

have revised their programs to keep pace with Federal program

changes that have taken place after 1982 in accordance with EPA

regulation.

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This guidance describes:

(1) The current regulatory requirements for determining if a waste

is a RCRA hazardous waste;

(2) The role of waste knowledge for hazardous waste determinations;

(3) The waste analysis information necessary for proper treatment,

storage, and disposal of mixed waste; and,

(4) The implications of the RCRA land disposal restrictions (LDRs)

on the waste characterization and analysis requirements.

This information should be useful for: (1) radioactive waste

generators, who must determine if their waste is a RCRA hazardous

waste, and therefore a mixed waste; (2) for those generators storing

mixed waste on-site in tanks, containers or containment buildings for

longer than 90 days, that consequently become responsible for complying

with RCRA and NRC storage requirements; and (3) those facilities that

accept mixed waste for off-site treatment, storage, or disposal.

Generators and/or treatment, storage, and disposal facilities

(TSDFs) handling wastes under RCRA must characterize their waste for

several purposes:

(1) To determine if their waste is a hazardous waste (40 CFR

262.11);

(2) To comply with general waste analysis requirements for new or

permitted TSDFs, for TSDFs operating under interim status, and for

certain generators that treat land disposal prohibited wastes in 40 CFR

264.13, 265.13 and 268.7, respectively. These analysis requirements

include:

(a) chemical/physical analysis of a representative sample (and/or,

in some cases, use waste knowledge (see below); and,

(b) preparation of a waste analysis plan.

(3) To meet the waste analysis requirements that apply to the

specific waste management methods in 40 CFR 264.17, 264.314, 264.341,

264.1034(d), and 268.7;

(4) To ensure, prior to land disposal, that the restricted waste

meets the required treatment standard (40 CFR 268.7).4

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\4\ Refer to Appendix A for specific EPA regulations pertaining

to (1)-(4).

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This guidance addresses the need for chemical analysis of mixed

wastes to meet these purposes. The guidance also emphasizes ways in

which unnecessary testing of mixed waste may be avoided. This is

important when handling mixed waste, since each sampling, workup, or

analytical event may involve an incremental exposure to radiation. This

guidance encourages mixed waste handlers to use waste knowledge, such

as process knowledge, where possible, in making RCRA hazardous waste

determinations involving mixed waste. It also encourages the

elimination of redundant testing by off-site treatment and disposal

facilities, where valid generator-supplied, and certified, data are

available.

Because mixed waste testing may pose the possibility of increased

radiation exposures, this guidance also describes methods by which

individuals who analyze mixed waste samples may reduce their

occupational radiation exposure and satisfy the intent of the RCRA

testing requirements. Testing to determine whether wastes are hazardous

under the RCRA toxicity characteristic may pose special concerns which

are examined in Section III of this guidance.

All of the activities described in this guidance are subject to the

requirements of both the AEA and RCRA. The focus of this guidance is

the RCRA requirements. NRC and NRC Agreement State licensees are

authorized to receive, possess, use (which includes storing, sampling,

testing, and treating), and dispose of AEA-licensed materials. NRC

licensees handling mixed waste should ensure that their RCRA hazardous

waste testing activities are consistent with NRC, or Agreement State,

regulations and license conditions. Flexibility in the RCRA

requirements is emphasized so that the As Low As is Reasonably

Achievable (ALARA) concept can be incorporated into the mixed waste

testing activities.5 If other AEA requirements, or RCRA

requirements are difficult to meet in a specific mixed waste management

situation, licensees should seek resolution by requesting license

amendments, approval of modifications to their RCRA permits or interim

status Part A applications, or resolution under both authorities.

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\5\ ALARA, codified in 10 CFR Part 20, refers to the practice of

maintaining all radiation exposures, to workers and the general

public, as low as is reasonably achievable.

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Section 1006(a) of RCRA states ``Nothing in this Act shall be

construed to apply to (or authorize any State, interstate, or local

authority to regulate) any activity or substance which is subject to *

* * the Atomic Energy Act of 1954 * * * except to the extent that such

application (or regulation) is not inconsistent with the requirements

of such Acts.'' If a resolution cannot be achieved through the

flexibility provided by the two regulatory frameworks, then and only

then, should licensees seek resolution under Section 1006(a) of RCRA.

Licensees should note that, if an inconsistency exists, relief will be

limited to that specific RCRA requirement, and that the determination

of an inconsistency would not relieve the licensee from all other RCRA

requirements. Section 1006(a) and radiological hazard considerations

are addressed more fully in Sections III and IV of this guidance. NRC

licensees should also include the necessary flexibility in their RCRA

permit waste analysis plans to accommodate the sampling and testing

required to meet AEA requirements.

II. Use of Waste Knowledge for Hazardous Waste Determinations

The use of waste knowledge by a generator and/or a TSDF to

characterize mixed waste is recommended throughout this document to

eliminate unnecessary or redundant waste testing. EPA interprets

``waste knowledge'' or ``acceptable knowledge'' of a waste broadly to

include, where appropriate:

``Process knowledge'';

Records of analyses performed by generator or TSDF prior

to the effective date of RCRA regulations; or,

A combination of the above information, supplemented with

chemical analysis.

Process knowledge refers to detailed information on processes that

generate wastes subject to characterization, or to detailed information

(e.g., waste analysis data or studies) on wastes generated from

processes similar to that which generated the original waste. Process

knowledge includes, for example, waste analysis data obtained by TSDFs

from the specific generators that sent the waste off-site, and waste

analysis data obtained by generators or TSDFs from other generators,

TSDFs or areas within a facility that test chemically identical

wastes.6

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\6\ For a more detailed discussion on process knowledge, see

Section 1.5 in ``Waste Analysis at Facilities That Generate, Treat,

Store, and Dispose of Hazardous Wastes'' OSWER 9938.4-03, April

1994.

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[[Page 62082]]

Waste knowledge is allowed by RCRA regulations for the following

hazardous waste characterization determinations:

To determine if a waste is characteristically hazardous

(40 CFR 262.11(c)(2)) or matches a RCRA listing in 40 CFR Part 261,

Subpart D (40 CFR 262.11(a) and (b));

To comply with the requirement to obtain a detailed

chemical/physical analysis of a representative sample of the waste

under 40 CFR 264.13(a);

To determine whether a hazardous waste is restricted from

land disposal (40 CFR 268.7(a)); and,

To determine if a restricted waste the generator is

managing can be land disposed without further treatment (see the

generator certification in 40 CFR 268.7(a)(3) and information to

support the waste knowledge determination in 40 CFR 268.7(a)(6)).

Hazardous waste, including mixed waste, may be characterized by

waste knowledge alone, by sampling and laboratory analysis, or a

combination of waste knowledge, and sampling and laboratory analysis.

The use of waste knowledge alone is appropriate for wastes that have

physical properties that are not conducive to taking a laboratory

sample or performing laboratory analysis. As such, the use of waste

knowledge alone may be the most appropriate method to characterize

mixed waste streams where increased radiation exposures are a concern.

Mixed waste generators should contact the appropriate EPA regional

office to determine whether they possess adequate waste knowledge to

characterize their mixed waste.

III. Determinations by Generators That a Waste Is Hazardous

A solid waste is a RCRA hazardous waste if it meets one of two

conditions: (1) the waste is specifically ``listed'' in 40 CFR Part

261, Subpart D, or; (2) the waste exhibits one of the four

``characteristics'' identified in 40 CFR Part 261, Subpart C. These

characteristics are:

Ignitability;

Corrosivity;

Reactivity; or,

Toxicity.

(a) Listed Hazardous Wastes

Generators of waste containing a radioactive and solid waste

component must establish whether the solid waste component is a RCRA

hazardous waste. Determinations of whether a waste is a listed

hazardous waste can be made by comparing information on the waste

stream origin with the RCRA listings set forth in 40 CFR Part 261,

Subpart D. These listings are separated into three major categories or

lists, and are identified by EPA hazardous waste numbers. Most

hazardous waste numbers are associated with a specific waste

description, specific processes that produce wastes, or certain

chemical compounds. For example, K103 waste is defined as ``process

residues from aniline extraction from the production of aniline.'' A

generator who produces such residues should know, without any sampling

or analysis, that these wastes are ``listed'' RCRA hazardous wastes by

examining the K103 hazardous waste description in the hazardous waste

lists. Other hazardous waste numbers describe wastes generated from

generic processes that are common to various industries and activities.

These wastes are referred to as hazardous wastes from nonspecific

sources. Radioactively contaminated spent solvents are the most likely

mixed wastes to be nonspecific source listed wastes. For example, a

generator using one of the F002 halogenated solvents (e.g.,

tetrachloroethylene, trichloroethylene, and chlorobenzene, etc.) to

remove paint from a radiologically contaminated surface, can determine

that this waste is a listed RCRA hazardous waste by examining the F002

waste definition for the solvent type, and for a solvent mixture/blend,

the percent solvent by volume.

In addition to wastes that are specifically listed as hazardous,

the ``derived from'' and ``mixture'' rules state that any solid waste

derived from the treatment, storage, or disposal of a listed RCRA

hazardous waste, or any solid waste mixed with a listed RCRA hazardous

waste, respectively, is itself a listed RCRA hazardous waste until

delisted (see 40 CFR 261.3).7 (Note that soil and debris can

be managed as hazardous wastes if they contain listed hazardous wastes

or they exhibit one or more hazardous waste characteristics. See

hazardous debris definition in 40 CFR 268.2.)

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\7\ The ``mixture'' and ``derived-from'' rules were vacated and

remanded due to EPA's failure to provide adequate notice and

opportunity for comment before their 1980 promulgation, in Shell Oil

v. EPA, No. 80-1532 (D.C. Cir. Dec. 6, 1991). At the Court's

suggestion, EPA reinstated the ``mixture'' and ``derived-from''

rules as interim final until the rules are revised through new EPA

rulemaking. The ``mixture'' and ``derived from'' rules adopted by

those States with authorized RCRA programs were not affected by the

court case or the subsequent reinstatement by EPA. For further

information, see 57 FR 49278, October 30, 1992, and 60 FR 66344,

December 21, 1995.

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Exceptions to the ``mixture rule'' and ``derived from'' rules exist

for certain solid wastes. For example, wastewater discharges subject to

Clean Water Act permits, under certain circumstances, are not RCRA

hazardous (see 40 CFR 261.3(a)(2)(iv)). Also, hazardous wastes which

are listed solely for a characteristic identified in Subpart C of 40

CFR Part 261 (e.g., a F003 spent solvent which is listed only because

it is ignitable) are not considered hazardous wastes when they are

mixed with a solid waste and the resultant mixture no longer exhibits

any characteristic of a hazardous waste (see 40 CFR 261.3(a)(2)(iii)).

Likewise, waste pickle liquor sludge ``derived from'' the lime

stabilization of spent pickle liquor (e.g., K062) is not a RCRA listed

hazardous waste, if the sludge does not exhibit a hazardous waste

characteristic (see discussion below on characteristic hazardous

wastes). It should be noted, however, that wastes such as F003 and K062

must meet LDR treatment standards. Outside of the exceptions mentioned

here and in the RCRA regulations, a hazardous waste that was generated

via the ``mixture rule'' or the ``derived from'' rule must be delisted

through a specific EPA petition process for the listed waste to be

considered only a solid waste, and no longer managed as a listed

hazardous waste under the RCRA Subtitle C system.

When applying the mixture rule to hazardous wastes, including mixed

wastes, generators should be aware that EPA prohibits the dilution

(i.e., mixing) of land disposal restricted waste or treatment residuals

as a substitute for adequate treatment (see 40 CFR 268.3). An exception

to the prohibition is the dilution of purely corrosive, and in some

cases, reactive, or ignitable non-toxic wastes to eliminate the

characteristic, or the aggregation of characteristic wastes in

(pre)treatment systems regulated under the Clean Water Act (55 FR

22665).

(b) Characteristic Hazardous Wastes

Hazardous characteristics are based on the physical/chemical

properties of wastes. Thus, physical/chemical testing of waste may be

appropriate for determining whether a waste is a characteristic

hazardous waste. RCRA regulations, however, do not require testing.

Rather, generators must determine whether the waste is a RCRA hazardous

waste. Such a determination may be made based on one's knowledge of the

materials or chemical processes that were used. EPA's regulations are

clear on this point. 40 CFR 262.11(c) states:

[[Page 62083]]

``. . . if the waste is not listed [as hazardous waste] in

Subpart D [of 40 CFR Part 261], the generator must then determine

whether the waste is identified in Subpart C of 40 CFR Part 261 by

either:

(1) Testing the waste according to the methods set forth in

Subpart C of 40 CFR Part 261, or according to an equivalent method

approved by the Administrator under 40 CFR 260.21; or

(2) Applying knowledge (emphasis added) of the hazardous

characteristic of the waste in light of the materials or the

processes used.''

Therefore, where sufficient material or process knowledge exists,

the generator need not test the waste to make a hazardous

characteristic determination, although generators and subsequent

handlers would be in violation of RCRA, if they managed hazardous waste

erroneously classified as non-hazardous, outside of the RCRA hazardous

waste system. For this reason, facilities wishing to minimize testing

often assume a questionable waste is hazardous and handle it

accordingly.

A generator must also comply with the land disposal restriction

regulations in 40 CFR 268 which require the generator to determine

whether the waste is prohibited from land disposal (refer to Section V

for a detailed discussion of these requirements).8 With

respect to the hazardous characteristic, and the determination as to

whether a waste is restricted from land disposal under 40 CFR 268.7(a),

a generator may select the option of using waste knowledge. However, if

the waste is determined to be land disposal restricted in 40 CFR

268.7(a), some testing will generally be required prior to land

disposal, except where technologies are specified as the treatment

standard. For mixed waste, EPA recommends that the frequency of such

testing be held to a minimum, in order to avoid duplicative testing and

repeated exposure to radiation.

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\8\ Generators who also treat their waste are subject to the

requirements for treatment facilities unless they treat waste in

accumulation tanks, containers, or containment buildings, for 90

days or less in accordance with 40 CFR 262.34(a). Treatment

facilities must periodically test the treated waste residue from

prohibited wastes to determine whether it meets the best

demonstrated available technology (BDAT) treatment standards and may

not rely on materials and process knowledge to make this

determination (40 CFR 268.7(b)). This testing must be conducted

according to the frequency specified in the facility's waste

analysis plan (refer to Section IV of this guidance for a detailed

discussion of treatment, storage, and disposal facility

requirements).

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In determining whether a radioactive waste is a RCRA hazardous

waste, the generator may test a surrogate material (i.e., a chemically

identical material with significantly less or no radioactivity) to

determine the RCRA status of the radioactive waste. This substitution

of a surrogate material may either partially or completely supplant the

testing of the waste. A surrogate material, however, should only be

used if the surrogate material faithfully represents the hazardous

constituents of the mixed waste.9 The following example

discusses the use of surrogates. A generator is required to determine

if a process waste stream containing lead (D008) exceeds the regulatory

level of 5.0 milligrams per liter for the toxicity characteristic (40

CFR 261.24). If this determination cannot be made based on material and

process knowledge only, the generator would need to test the hazardous

material. Rather than testing the radioactive waste stream, the

generator may opt to test a surrogate or chemically identical non-

radioactive, or lower activity, radioactive waste stream generated by

similar maintenance activities in another part of the plant. This

substitution of materials is acceptable as long as the surrogate

material faithfully represents the characteristics of the actual waste,

and testing provides sufficient information for the generator to

reasonably determine if the waste is hazardous under RCRA. Non-

radioactive or lower activity quality control samples/species and

spiked solutions, for instance, are acceptable to minimize exposure to

radiation from duplicative mixed waste testing.

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\9\ This definition of surrogate should not be confused with the

definition of surrogate for the purposes of sampling and analysis

quality control in Section 1.1.8 of ``Evaluating Solid Waste--Volume

IA: Laboratory Test Methods Manual Physical/Chemical Methods.''

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As part of the hazardous waste determination, a generator must

document test results or other data and methods that it used.

Specifically, 40 CFR 262.40(c) states that ``a generator must keep

records of any test results, waste analyses, or other determinations

made in accordance with 40 CFR 262.11 for at least three years from the

date that the waste was last sent to on-site or off-site treatment,

storage, or disposal.'' Section V of this guidance contains information

on record keeping requirements for land disposal restricted hazardous

(and mixed) wastes.

In summary, testing listed wastes to make the hazardous waste

determination is not necessary, because most RCRA hazardous waste codes

or listings identify specific waste streams from specific processes or

specific categories of wastes. Testing will most often occur to

determine if a waste exhibits a hazardous characteristic. However,

testing is not required if a generator has sufficient knowledge about

the waste and its physical/chemical properties to determine that it is

non-hazardous.10 It is recognized that certain mixed waste

streams, such as wastes from remediation activities or wastes produced

many years ago, may have to be identified using laboratory analysis,

because of a lack of waste or process information on these waste

streams. Nonetheless, hazardous waste determinations based on generator

knowledge can be used to reduce the sampling of mixed waste and prevent

unnecessary exposure to radioactivity. The same principle holds for a

generator's determination that a waste is subject to the RCRA land

disposal restrictions in 40 CFR 268.7(a).

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\10\ Note that characteristic only wastes (which are neither

wastewater mixtures or RCRA listed hazardous wastes when generated)

may be treated so that they no longer exhibit any of the four

characteristics of a hazardous waste. However, these wastes may

still be subject to the requirements of 40 CFR Part 268, even if

they no longer exhibit a hazardous characteristic at the point of

land disposal. After treatment this waste must not exhibit any RCRA

hazardous waste characteristic and must meet applicable treatment

standards before it can be considered a non-hazardous waste (see 57

FR 37263, August 18, 1992, and 58 FR 29869, May 24, 1993).

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IV. Testing Protocols for Characteristics

When testing is conducted to determine whether a waste is a RCRA

hazardous waste, there are acceptable test protocols or criteria for

each of the four characteristics. Testing for characteristics must be

done on a representative sample of the waste or using any applicable

sampling methods specified in Appendix I of 40 CFR 261.11

\11\ Note that hazardous and mixed waste samples analyzed for

waste characteristics or composition, and samples undergoing

treatability studies may be exempt from all or part of the RCRA

regulations if they are managed in accordance with 40 CFR 261.4 (d),

(e) or (f).

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Ignitability--For liquid wastes, other than aqueous solutions

containing by volume less than 24 percent alcohol, the flash point

is to be determined by a Pensky-Martens Closed Cup Tester, using the

test method specified in American Society of Testing and Materials

(ASTM) Standard D-93-79 or D-93-80, or a Setaflash Closed Cup

Tester, using the test method specified in ASTM Standard D-3278-78,

or as determined by an equivalent test method approved by the

Administrator under procedures set forth in 40 CFR 260.20 and 260.21

(see ``Test Methods for Evaluating Solid Waste, Physical/Chemical

Methods,'' 3rd Ed., as amended, EPA, OSWER, SW-846, Methods 1010 and

1020 12). (Non-liquid

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wastes, compressed gases, and oxidizers may exhibit the

characteristic of ignitability as described in 40 CFR 261.21 (a)(2-

4).)

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\12\ EPA incorporated by reference into the RCRA regulations (58

FR 46040, August 31, 1993), a third edition (and its updates) of

``Test Methods for the Evaluation of Solid Waste, Physical/Chemical

Methods.'' The updates can be found in 60 FR 3089, January 13, 1995

(update II), 59 FR 458, January 4, 1994 (update IIA), 60 FR 17001,

April 4, 1995 (update IIB), and 62 FR 32452, June 13, 1996 (update

III). Hazardous and mixed waste generators and management facilities

should verify that the analytical method that they use to analyze

hazardous waste has not been superseded in the third edition.

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Corrosivity--For aqueous solutions, the pH is to be determined

by a pH meter using either an EPA test method (i.e., SW-846, Method

9040 or an equivalent test method approved by the Administrator

under procedures set forth in 40 CFR 260.20 and 260.21.) For

liquids, steel corrosion is to be determined by the test method

specified in National Association of Corrosion Engineers (NACE)

Standard TM-01-69 as standardized in ``Test Methods for Evaluating

Solid Waste, Physical/Chemical Methods,'' 3rd Ed., as amended (EPA,

OSWER, SW-846, Method 1110), or an equivalent test method approved

by the Administrator under procedures set forth in 40 CFR 260.20 and

260.21.

Reactivity--There are no specified test protocols for

reactivity. 40 CFR 261.23 defines reactive wastes to include wastes

that have any of the following properties: (1) normally unstable and

readily undergoes violent change without detonating; (2) reacts

violently with water; (3) forms potentially explosive mixtures with

water; (4) generates dangerous quantities of toxic fumes, gases, or

vapors when mixed with water; (5) in the case of cyanide- or

sulfide-bearing wastes, generates dangerous quantities of toxic

fumes, gases, or vapors when exposed to acidic or alkaline

conditions; (6) explodes when subjected to a strong initiating force

or if heated under confinement; (7) explodes at standard temperature

and pressure; or (8) fits within the Department of Transportation's

forbidden explosives, Class A explosives, or Class B explosives

classifications.13

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\13\ When evaluating test protocols for explosive mixed waste,

consideration should be given to the likelihood for dispersing

radioactivity during detonation. Using process knowledge or a

surrogate material would, in most instances, be appropriate for

these wastes.

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EPA has elected to rely on a descriptive definition for these

reactivity properties because of inherent deficiencies associated

with available methodologies for measuring such a varied class of

effects, with the exception of the properties discussed in No. 5,

above. The method used, as guidance but not required, to quantify

the reactive cyanide and sulfide bearing wastes is provided in

Chapter 7 of ``Test Methods for Evaluating Solid Waste, Physical/

Chemical Methods,'' 3rd Ed., as amended, EPA, OSWER, SW-846.

Toxicity Characteristic--The test method that may be used to

determine whether a waste exhibits the toxicity characteristic (TC)

is the Toxicity Characteristic Leaching Procedure (TCLP), as

described in 40 CFR Part 261, Appendix II (SW-846, Method 1311). The

TCLP was modified and revised in 55 FR 11798, March 29, 1990. Note

that this revised TCLP is used (in most cases) for land disposal

restriction compliance determinations as well. Differences between

the TCLP and the previously required Extraction Procedure (EP)

include improved analysis of the leaching of organic compounds, the

elimination of constant pH adjustment, the addition of a milling or

grinding requirement for solids (waste material solids must be

milled to particles less than 9.5 mm in size), and other more

detailed alterations.14 Additionally, the TC rule added

25 organic compounds to the toxicity characteristic.

\14\ Note that when using the TCLP, if any liquid fraction of

the waste positively determines that hazardous constituents in the

waste are above regulatory levels, then it is not necessary to

analyze the remaining fractions of the waste. Extraction using the

zero headspace extraction vessel (ZHE) is not required, furthermore,

if the analysis of an extract obtained using a bottle extractor

demonstrates that the concentration of a volatile compound exceeds

the specified regulatory levels. The use of a bottle extractor,

however, may not be used to demonstrate that the concentration of a

volatile compound is below regulatory levels (40 CFR Part 261

Appendix II Sections 1.3 and .4).

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The TCLP (Method 1311) recommends the use of a minimum sample size

of 100 grams (solid and liquid phases as described in Section 7.2). For

mixed waste testing, sample sizes of less than 100 grams can be used,

if the analyst can demonstrate that the test is still sufficiently

sensitive to measure the constituents of interest at the regulatory

levels specified in the TCLP and representative of the waste stream

being tested. Other variances to the published testing protocols are

permissible (under 40 CFR 260.20-21), but must be approved prior to

implementation by EPA. Use of a sample size of less than 100 grams is

highly recommended for mixed wastes with concentrations of

radionuclides that may present serious radiation exposure hazards.

Additionally, Section 1.2 of the TCLP allows the option of

performing a ``total constituent analysis'' on a hazardous waste or

mixed waste sample, instead of the TCLP. Section 1.2 of Method 1311

states:

If a total analysis of the waste demonstrated that the

individual analytes are not present in the waste, or that they are

present, but at such low concentrations that the appropriate

regulatory levels could not possibly be exceeded, the TCLP need not

be run.

For homogenous samples, the use of total constituent analysis in

this manner eliminates the need to grind or mill solid waste samples.

The grinding or milling step in the TCLP has raised ALARA concerns for

individuals who test mixed waste. The use of total constituent

analysis, instead of the TCLP, may also minimize the generation of

secondary mixed or radioactive waste through the use of smaller sample

sizes and reduction, or elimination, of high dilution volume leaching

procedures.

Flexibility in Mixed Waste Testing

Flexibility exists in the hazardous waste regulations for

generators, TSDFs, and mixed waste permit writers to tailor mixed waste

sampling and analysis programs to address radiation hazards. For

example, upon the request of a generator, a person preparing a RCRA

permit for a TSDF has the flexibility to minimize the frequency of

mixed waste testing by specifying a low testing frequency in a

facility's waste analysis plan. EPA believes, as stated in 55 FR 22669,

June 1, 1990, that ``the frequency of testing is best determined on a

case-by-case basis by the permit writer.''

EPA's hazardous waste regulations also allow a mixed waste facility

the latitude to change or replace EPA's test methods (i.e., Test

Methods for Evaluating Solid Waste (SW-846)) to address radiation

exposure concerns. There are only fourteen sections of the hazardous

waste regulations that require the use of specific test methods or

appropriate methods found in SW-846 which are outlined in Appendix

A.15 However, any person can request EPA for an equivalent

testing or analytical method that would replace the required EPA method

(see 40 CFR 260.21).

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\15\ With the exception of the fourteen areas (see Appendix D)

where test methods are required by hazardous waste regulation, use

of EPA's Test Methods for the Evaluation of Solid Waste (SW-846) is

not required, and should be viewed as guidance on acceptable

sampling and analysis methods.

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In a recent amendment to the testing requirements, EPA added

language to SW-846 that describes fourteen citations in the RCRA

program (listed in Appendix A) where the use of SW-846 methods is

mandatory (Update II, 60 FR 3089, January 13, 1995). In all other

cases, the RCRA program functions under what we call the Performance

Based Measurement System (PBMS) approach to monitoring. Language

clarifying this approach was included in the final FR Notice which

promulgated Update III (62 FR 32542, June 13, 1997) and in appropriate

sections (Disclaimer, Preface and Overview, and Chapter 2) of SW-846.

Under PBMS, the regulation and/or permit focus is on the question(s) to

be answered by the monitoring, the degree of confidence (otherwise

known as the Data Quality Objective (DQO)) or the measurement quality

objectives (MQO) that must be achieved by the permittee to have

demonstrated compliance, and the specific data that must be gathered

and documented by the permittee to demonstrate that the objectives were

actually achieved. ``Any reliable method'' may be used to demonstrate

that one can see the analytes of concern in the matrix of

[[Page 62085]]

concern at the levels of concern. Additional reference documents on the

characterization and testing methods are listed in Appendix C.

NRC regulations do not describe specific testing requirements for

wastes to determine if a waste is radioactive. However, both NRC and

Department of Transportation regulations contain requirements

applicable to characterizing the radioactive content of the waste

before shipment. For example, NRC's regulations in 10 CFR 20.2006

require that the waste manifest include, as completely as practicable,

the radionuclide identity and quantity, and the total radioactivity.

NRC regulations also require that generators determine the disposal

Class of the radioactive waste, and outline waste form requirements

that must be met before the waste is suitable for land disposal. These

regulations are referenced in 10 CFR 20.2006, and are outlined in

detail at 10 CFR 61.55 and 61.56. Mixed waste generators are reminded

that both RCRA waste testing and NRC waste form requirements must be

satisfied. Generators may also be required to amend their NRC or

Agreement State licenses in order to perform the tests required under

RCRA. In addition, if an NRC licensee uses an outside laboratory to

test his or her waste, that laboratory may be required to possess an

NRC or Agreement State license. It is the responsibility of the

generator to determine if the outside laboratory possesses the proper

license(s) prior to transferring the waste to the laboratory for

testing.

Where radioactive wastes (or wastes suspected of being radioactive)

are involved in testing, it has been suggested that the testing

requirements of RCRA may run counter to the aims of the AEA. The AEA

requirements that have raised inconsistency concerns with respect to

RCRA testing procedures include ALARA, criticality, and security.

Neither EPA nor NRC is aware of any specific instances where RCRA

compliance has been inconsistent with the AEA. However, both agencies

acknowledge the potential for an inconsistency to occur.16 A

licensee or applicant who suspects that an inconsistency may exist

should contact both the AEA and RCRA regulatory agencies. These

regulatory agencies may deliberate and consult on whether there is an

unresolvable inconsistency and, if one exists, they may attempt to

fashion the necessary relief from the particular RCRA provision that

gives rise to the inconsistency. However, all other RCRA regulatory

requirements would apply. That is, such a conclusion does not relieve

hazardous waste facility owner/operators of the responsibility to

ensure that the mixed waste is managed in accordance with all other

applicable RCRA regulatory requirements. Owner/operators of mixed waste

facilities are encouraged to address and document this potential

situation and its resolution in the RCRA facility waste analysis plan

which must be submitted with the Part B permit application, or

addressed in a permit modification.

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\16\ An inconsistency occurs when compliance with one statute or

set of regulations would necessarily cause non-compliance with the

other. It may stem from a variety of considerations, including those

related to occupational exposure, criticality, and other safeguards.

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Both agencies also believe that the potential for inconsistencies

can be reduced significantly by a better understanding of the RCRA

requirements, a greater reliance on materials and process knowledge,

the use of surrogate materials when possible, and the use of controlled

atmosphere apparatuses for mixed waste testing. Where testing is

conducted, the use of glove boxes and other controlled atmosphere

apparatuses during the testing of the radioactive waste material

lessens radiation exposure concerns significantly. These protective

measures may also help to reconcile the required testing requirements

(including milling) with concerns about maintaining exposures to

radiation ALARA and complying with other AEA protective standards. If

such protective measures do not exist, or do not adequately reduce

individual exposure to radiation or address other factors of concern,

relief may be available under Section 1006 of RCRA.

V. Determinations by Treatment, Storage, or Disposal Facility Owner/

Operators and Certain Generators to Ensure Proper Waste MaNagement

General Waste Analysis

Owner/operators of facilities that treat, store, or dispose of

hazardous wastes must obtain a chemical and physical analysis of a

representative sample of the waste (see 40 CFR 264.13 for permitted

facilities, or 40 CFR 265.13 for interim status facilities).

17 The purpose of this analysis is to assure that owner/

operators have sufficient information on the properties of the waste to

be able to treat, store, or dispose of the waste in a safe and

appropriate manner.

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\17\ A representative sample is defined in 40 CFR 260.10 as ``a

sample of a universe or whole (e.g., waste pile, lagoon, ground

water) which can be expected to exhibit the average properties of

the universe or whole.'' For further guidance see Chapter 9 of the

EPA's testing guidance entitled Test Methods for Evaluating Solid

Waste or SW-846.

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The waste analysis may include data developed by the generator, and

existing, published, or documented data on the hazardous waste or on

hazardous waste generated from similar processes. In some instances,

however, information supplied by the generator may not fully satisfy

the waste analysis requirement. For example, in order to treat a

particular waste, one may need to know not only the chemical

composition of the waste, but also its compatibility with the

techniques and chemical reagents used at the treatment facility. Where

such information is not otherwise available, the owner/operator will be

responsible for gathering relevant data on the waste in order to ensure

its proper management.

The analysis must be repeated only if the previous analyses are

inaccurate or needs updating. EPA regulations at 40 CFR 264.13(a)(3) do

require that, at a minimum, a waste must be re-analyzed if:

(1) The owner/operator is notified, or has reason to believe,

that the process or operation generating the waste has changed [in a

way such that the hazardous property or characteristics of the waste

would change]; and

(2) For off-site facilities, when the results of the

verification analysis indicate that the [composition or

characteristics of the] waste does not match the accompanying

manifest or shipping paper.

The requirements and frequency of waste analysis for a given

facility are described in the facility's waste analysis plan. As

required by 40 CFR 264.13(b), the waste analysis plan must specify the

parameters for which each hazardous waste will be analyzed; the

rationale for selecting these parameters (i.e., how analysis for these

parameters will provide sufficient information on the waste's

properties); and the test methods that will be used to test for these

parameters. The waste analysis plan also must specify the sampling

method that will be used to obtain a representative sample of the waste

to be analyzed; the frequency with which the initial analysis of the

waste will be reviewed or repeated, to ensure that the analysis is

accurate and up to date; and, for off-site facilities, the waste

analyses to be supplied by the hazardous waste generators. Finally, the

waste analysis plan must note any additional waste analysis

requirements specific to the waste management method employed, such as

the analysis of the waste feed to be burned in an incinerator.

The appropriate parameters for each waste analysis plan are

determined on an individual basis as part of the permit

[[Page 62086]]

application review process. To reduce the inherent hazards of sampling

and analyzing radioactive material, and in particular, the potential

risk to workers from exposure to radiation posed by duplicative testing

of mixed wastes, redundant testing by the generator and off-site

facilities should be avoided. In addition, waste analysis plans must

include provisions to keep exposures to radiation ALARA, and

incorporate relevant AEA-related requirements and regulations.

Analysis Required to Verify Off-site Shipments

The owner/operator of a facility that receives mixed waste from

off-site must inspect and, if necessary, analyze each hazardous waste

shipment received at the facility to verify that it matches the

identity of the waste specified on the accompanying LDR notification or

manifest (see 40 CFR 264.13 or 265.13(c)). This testing is known as

verification testing. Such inspections and analysis will follow

sampling and testing procedures set forth in the facility's waste

analysis plan, which is kept at the facility.

It should also be emphasized that, where analysis is necessary,

RCRA regulations do not necessarily require the analysis of every

movement of waste received at an off-site facility. As explained above,

the purpose of the waste analysis is to verify that the waste received

at off-site facilities is correctly identified, and to provide enough

information to ensure that it is properly managed by the facilities.

For example, if a facility receives a shipment of several sealed

drums of mixed waste, a representative sample from only one drum may be

adequate, if the owner/operator has reason to believe that the chemical

composition of the waste is identical in every drum. In such a case,

the drum containing the least amount of measurable radioactivity could

be sampled to minimize radiation exposures (variations in radioactivity

do not necessarily suggest different chemical composition). This

procedure also would apply to a shipment of several types of waste. If

the owner/operator has reason to believe that the drums in the shipment

contain different wastes, then selecting a representative sample might

involve drawing a sample from each drum or drawing a sample from one

drum in each ``set'' of drums containing identical wastes. Once this

waste analysis requirement has been satisfied, routine retesting of

later shipments would not be required if the owner/operator can

determine that the properties of the waste he or she manages will not

change.

Fingerprint Analysis Versus Full Scale Analysis

Full scale analysis (i.e., detailed physical and chemical analysis)

may be used to comply with the waste analysis plan, including

verification of off-site shipments. However, for mixed waste,

abbreviated analysis or ``fingerprint analysis'' may be more

appropriate to meet general waste analysis requirements. The test

procedure should be determined on a case-by-case basis.

Fingerprint analysis (which may involve monitoring pH, percent

water, and cyanide content) is particularly recommended for mixed waste

streams with high radiation levels that are received by an off-site

TSDF for RCRA waste manifest verification purposes. It may be

appropriate to use full scale analysis, instead of, or after,

fingerprint analyses, if the facility suspects that the waste was not

accurately characterized by the generator, information provided by a

generator is incomplete, waste is received for the first time, or the

generator changes a process or processes that produced the waste.

Generators Who Treat LDR Prohibited Waste In Tanks, Containers or

Containment Buildings To Meet LDR Treatment Requirements

Hazardous waste generators may treat hazardous wastes in tanks or

containers without obtaining a permit if the treatment is done in

accordance with the accumulation timeframes and requirements in 40 CFR

262.34. However, generators who treat hazardous waste (including mixed

wastes) to meet the EPA treatment standards for land disposal

prohibited wastes must also prepare a waste analysis plan similar to

that prepared by TSDFs. The plan must be based on a detailed analysis

of a representative sample of the LDR prohibited waste that will be

treated. In addition, the plan should include all the information that

is necessary to treat the waste, including the testing frequency (See

40 CFR 268.7(a)(5)).

VI. Determinations Under the Land Disposal Restrictions

Generators, as well as treatment facilities and land disposal

facilities, that handle mixed waste may have to obtain or amend their

radioactive materials licenses if they test or treat mixed waste under

the LDRs. The following discussion assumes that generators and

treatment and disposal facilities have satisfied the requirement to

obtain, or amend, their radioactive materials licenses, as appropriate.

Waste knowledge may also be used to satisfy certain waste

characterization requirements imposed by the LDRs for mixed wastes. The

Hazardous and Solid Waste Amendments (HSWA) to RCRA (P.L. 98-616),

enacted on November 8, 1984, established the LDR program. This

Congressionally mandated program set deadlines (RCRA Sections 3004(d)-

(g)) for EPA to evaluate all hazardous wastes and required EPA to set

levels, or methods, of treatment which would substantially diminish the

toxicity of the waste, or minimize the likelihood of migration of

hazardous constituents from any RCRA waste. Beyond specified dates,

prohibited wastes that do not meet the treatment standards before they

are disposed of, are banned from land disposal unless they are disposed

of in a so-called ``no-migration'' unit (i.e., a unit where the EPA

Administrator has granted a petition which successfully demonstrated to

a reasonable degree of certainty that there will be no migration of

hazardous constituents from the disposal unit for as long as the wastes

remain hazardous)(40 CFR 268.6). Certain categories of prohibited

wastes also may be granted extensions of the effective dates of the

land disposal prohibitions (i.e., case-by-case and national capacity

variances (40 CFR 268.5 and Subpart C, respectively). However, these

wastes are still restricted and, if disposed in landfills or surface

impoundments, must be disposed of in units meeting the minimum

technology requirements.\18\

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\18\ A prohibited waste may not be land disposed unless it meets

the treatment standards established by EPA. These standards are

usually based on the performance of the BDAT. A waste that is

subject to an extension, such as a national capacity variance, does

not need to comply with the BDAT treatment standards, but is

``restricted'' and if it is going to be disposed in a landfill or

surface impoundment, it can only be disposed of in a unit that meets

the minimum technology requirements (MTRs). An exception exists for

interim status surface impoundments which may continue receiving

newly identified and restricted wastes for four years from the date

of promulgation of the listings or characteristics before being

retrofitted to meet the MTRs (RCRA Section 3005(j)(6)), so long as

the only hazardous wastes in the impoundment are newly identified or

listed.

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The requirements of the LDR program apply to generators,

transporters, and owner/operators of hazardous waste treatment,

storage, and disposal facilities. Not all hazardous wastes are subject

to 40 CFR Part 268. For instance, certain wastes that are identified or

listed after November 8, 1984, such as newly identified mineral

processing wastes for which land disposal prohibitions or treatment

standards have not yet been promulgated, are not regulated under 40 CFR

Part 268.19

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\19\ The treatment standards for mineral processing wastes and

certain additional newly listed waste streams were proposed in 61 FR

2338, January 25, 1996, and a second supplemental proposed rule

signed April 18, 1997.

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[[Page 62087]]

Determinations by Generators

Under 40 CFR 268.7(a), generators must determine whether their

waste is restricted from land disposal (or determine if they are

subject to an exemption or variance from land disposal (40 CFR 268.1))

by testing their waste (or a leachate of the waste developed using the

TCLP or, in certain cases, the Extraction Procedure Toxicity Test (EP),

or by using waste or process knowledge). If the waste exhibits the

characteristic of ignitability (and is not in the High Total Organic

Constituents (TOC) Ignitable Liquids Subcategory or is not treated by

the ``CMBST'' or ``RORGS'' treatment technology in 40 CFR 268.42, Table

1), corrosivity, reactivity and/or organic toxicity, the generator must

also determine the underlying hazardous constituents (UHCs) in the

waste. Two exceptions to this requirement are: (1) if these wastes are

treated in wastewater treatment systems subject to the Clean Water Act

(CWA) or CWA equivalent; or, (2) if they are injected into a Class I,

non-hazardous Underground Injection Control well. A UHC is any

constituent listed in 40 CFR 268.48, Table UTS-Universal Treatment

Standards, with the exceptions of nickel, zinc and vanadium, which can

reasonably be expected to be present at the point of generation of the

hazardous waste, at a concentration above the constituent-specific UTS

treatment standard. Determining the presence of the UHCs may be made

based on testing or knowledge of the waste. The UHCs must meet the UTS

before the waste may be land disposed.

If a generator chooses to test the waste rather than use waste or

process knowledge for hazardous waste that is not listed and exhibits a

characteristic only, the generator must use the TCLP. The only

exception is TC metals.

Until the ``Phase IV'' LDR rule is promulgated in the spring of

1998, generators who characterize their wastes as TC toxic only for

metals may use the EP instead of the TCLP result to determine if their

waste is land disposal restricted, because the TC wastes do not have

final EPA treatment standards whereas, at this time, the EP metals do.

If the EP result is negative, the waste will still be considered

hazardous, but is not prohibited from land disposal. The TCLP generally

yields similar results as the EP. However, in certain matrices the TCLP

yields higher lead and arsenic concentrations than the EP. The

rationale for using the EP instead of the TCLP for characteristic

wastes is explained in 55 FR 3865, January 31, 1991. For further

guidance on using the EP for the land disposal restriction

determination, refer to the Figures 1 and 2, of this guidance.

If a waste is found to be land disposal restricted, generators must

determine if the waste can be land disposed without further treatment.

A prohibited waste may be land disposed if it meets applicable

treatment standards (whether through treatment or simply as generated),

or is subject to a variance from the applicable standards. As explained

above, this determination can be made either based on knowledge of the

waste or by testing the waste, or waste leachate using the TCLP.

Generators who determine that their listed waste meets the

applicable treatment standards must certify to this determination and

notify the treatment, storage, or land disposal facility that receives

the waste (40 CFR 268.7(a)(3)). Notification to the receiving facility

must be made with the initial shipment of waste and must include the

following information:

EPA Hazardous Waste Number;

Certification that the waste delivered to a disposal

facility meets the treatment standard, and that the information

included in the notice is true, accurate, and complete;

Waste constituents that will be monitored for compliance

if monitoring will not include all regulated constituents, for wastes

F001-F005, F039, D001, D002, and D012-D043;

Whether the waste is a non-wastewater or wastewater;

The subcategory of the waste (e.g., ``D003 reactive

cyanide''), if applicable;

Manifest number; and,

Waste analysis data (if available).

If a generator determines that a waste that previously exhibited a

characteristic is no longer hazardous, or is subject to an exclusion

from the definition of hazardous waste, a one-time notification and

certification must be place in the generator's files (40 CFR

268.7(a)(7) or 268.9).

Generators who determine that their waste does not meet the

applicable treatment standards must ensure that this waste meets the

applicable standards prior to disposal. These generators may treat (or

store) their prohibited wastes on-site for 90 days or less in qualified

tanks, containers (40 CFR 262.34), or containment buildings (40 CFR

268.50), and/or send their wastes off-site for treatment.\20\ When

prohibited listed wastes are sent off-site, generators must notify the

treatment facility of the appropriate treatment standards (40 CFR

268.7(a)(2)). This notification must be made with the initial shipment

of waste and must include the following information:

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\20\ Non-wastewater residues (e.g., slag) that result from high

temperature metals recovery that are excluded from the definition of

hazardous waste by meeting the conditions of 40 CFR

261.3(c)(2)(ii)(C), and hazardous debris that is excluded from the

definition of hazardous waste in 40 CFR 261.3(f) have reduced LDR

notification requirements. Specifically, these wastes, and

characteristic hazardous wastes that are rendered non-hazardous, do

not require a notification and certification accompanying each

shipment. Instead, they may be sent to an AEA-licensed facility with

a one-time notification and certification sent to the EPA Region or

authorized State.

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EPA Hazardous Waste Number;

Waste constituents that the treater will monitor if

monitoring will not include all regulated constituents, for wastes

F001-F005, F039, D001, D002, and D012-D043;

Whether the waste is a non-wastewater or wastewater;

The subcategory of the waste (e.g., ``D003 reactive

cyanide''), if applicable;

Manifest number; and,

Specified information for hazardous debris.

Generators whose wastes are subject to an exemption such as a case-

by-case extension under 40 CFR 268.5, an exemption under 40 CFR 268.6

(a no-migration variance), or a nationwide capacity variance under 40

CFR 268, Subpart C must also notify the land disposal facility of the

exemption. In addition, records of all notices, certifications,

demonstrations, waste analysis data, process knowledge determinations,

and other documentation produced pursuant to 40 CFR Part 268 must be

maintained by the generator for at least three years from the date when

the initial waste shipment was sent to on-site or off-site treatment,

storage, or disposal (40 CFR 268.7(a)(8)).

Determinations by Treaters and Disposers

Owner/operators of treatment facilities that receive wastes that do

not meet the treatment standards are responsible for treating the

wastes to the applicable treatment standards or by the specified

technology(ies). In addition, the owner/operators of treatment

facilities must determine whether the wastes meet the applicable

treatment standards or prohibition levels by testing:

(1) The treatment residues, or an extract of such residues using

the TCLP, for wastes with treatment standards expressed as

concentrations in the waste extract (40 CFR 268.40); and.

(2) The treated residues (not an extract of the treated

residues) for wastes with

[[Page 62088]]

treatment standards expressed as concentrations in the waste extract

(40 CFR 268.40).

This testing should be done at the frequency established in the

facility's waste analysis plan. Owner/operators of treatment

facilities, however, do not need to test the treated residues or an

extract of the residues if the treatment standard is a specified-

technology (i.e., a technology specified in 40 CFR 268.40 or 268.45,

Table 1.--Alternative Treatment Standards for Hazardous Debris).

Owner/operators of land disposal facilities under the LDRs are

responsible for ensuring that only waste meeting the treatment

standards (i.e., wastes not prohibited from disposal or wastes that are

subject to an exemption or variance) is land disposed. Like a treatment

facility, a disposal facility must test a treatment residue or an

extract of the treatment residue, except where the treatment standard

is a specified technology.

Owner/operators must periodically test wastes received at the

facility for disposal (i.e., independent corroborative testing) as

specified in the waste analysis plan to ensure the treatment has been

successful and the waste meets EPA treatment standards, except where

the treatment standard is expressed as a technology.\21\ The results of

any waste analyses are placed in a TSDF's operating records along with

a copy of all certifications and notices (40 CFR 264.73 or 40 CFR

265.73).\22\

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\21\ Note that verification testing is a means to verify that

the wastes received match the waste description on the manifest,

which is required under 40 CFR 264.13 and 40 CFR 265.13(c). The main

objective of corroborative testing is to provide an independent

verification that a waste meets the LDR treatment standard.

\22\ Land disposal facilities must maintain a copy of all LDR

notices and certifications transmitted from generators and treaters

(40 CFR 268.7(c)).

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Mixed Waste Under the LDRs

As clarified in the Land Disposal Restrictions rule published on

June 1, 1990 (see EPA's ``Third Third rule,'' 55 FR 22669, June 1,

1990), the frequency of testing, such as corroborative testing for

treatment and disposal facilities, should be determined on a case-by-

case basis and specified in the RCRA permit. This flexibility is

necessary because of the variability of waste types that may be

encountered. Mixed waste is unique for its radioactive/hazardous

composition and dual management requirements. Each sampling or

analytical event involving mixed waste may result in an incremental

exposure to radiation, and EPA's responsibility to protect human health

and the environment must show due regard for minimizing this unique

risk. These are factors which should be considered in implementing the

flexible approach to determining testing frequency spelled out in the

Third Third Rule language. This flexible approach encourages reduction

in testing where there is little or no variation in the process that

generates the waste, or in the treatment process that treats the waste,

and an initial analysis of the waste is available. Also, the approach

may apply to mixed wastes shipped to off-site facilities, where

redundant testing is minimized by placing greater reliance on the

characterization developed and certified by earlier generators and

treatment facilities. On the other hand, where waste composition is not

well-known, testing frequency may be increased. Waste analysis plan

conditions in the permits of mixed waste facilities should reflect

these principles.

Revised Treatment Standards for Solvent Wastes

EPA promulgated revised treatment standards for wastewater and non-

wastewater spent solvent wastes (F001-F005) in 57 FR 37194, August 18,

1992. The revision essentially converts the treatment standards for the

organic spent solvent waste constituents (F001-F005) from TCLP based to

total waste constituent concentration based. This conversion of the

spent solvent treatment standards is particularly advantageous to mixed

waste generators, since the entire waste stream or treatment residual

must be analyzed (instead of a waste or treatment residual extract).

This holds true for other mixed waste streams where the hazardous

component is measured using a total waste analysis. As discussed in

Section IV of this guidance, total constituent analysis has several

advantages over the use of the TCLP for high activity waste streams.

EPA and NRC are aware of potential hazards attributable to testing

hazardous waste. Moreover, EPA and NRC recognize that the radioactive

component of mixed waste may pose additional hazards to laboratory

personnel, inspectors, and others who may be exposed during sampling

and analysis. All sampling should be conducted in accordance with

procedures that minimize exposure to radiation and ensure personnel

safety. Further, testing should be conducted in laboratories licensed

by NRC or the appropriate NRC Agreement State authority. EPA and NRC

believe that a combination of common sense, modified sampling

procedures, and cooperation between State and Federal regulatory

agencies will minimize any hazards associated with sampling and testing

mixed waste.

Note: Section V, ``Determinations under the Land Disposal

Restrictions (LDRs)'' and the following flow charts represent a

brief summary of the Land Disposal Restriction Regulations. They are

not meant to be a complete or detailed description of all applicable

LDR regulations. For more information concerning the specific

requirements, consult the Federal Registers cited in the document

and the Code of Federal Regulations, Title 40 Parts 124, and 260

through 271.

BILLING CODE 7590-01-P

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Appendix A--RCRA Regulations That Require Specific EPA Test Methods

The use of an SW-846 method is mandatory for the following nine

Resource Conservation and Recovery Act (RCRA) applications contained

in 40 CFR Parts 260 through 270:

Section 260.22(d)(1)(I)--Submission of data in support

of petitions to exclude a waste produced at a particular facility

(i.e., delisting petitions);

Section 261.22(a)(1) and (2)--Evaluations of waste

against the corrosivity characteristic;

Section 261.24(a)--Leaching procedure for evaluation of

waste against the toxicity characteristic;

Section 261.35(b)(2)(iii)(A)--Evaluation of rinsates

from wood preserving cleaning processes;

Sections 264.190(a), 264.314(c), 265.190(a), and

265.314(d)--Evaluation of waste to determine if free liquid is a

component of the waste;

Sections 264.1034(d)(1)(iii) and 265.1034(d)(1)(iii)--

Evaluation of organic emissions from process vents;

Sections 264.1063(d)(2) and 265.1063(d)(2)--Evaluation

of organic emissions from equipment leaks;

Section 266.106(a)--Evaluation of metals from boilers

and furnaces;

Sections 266.112(b)(1) and (2)(I)--Certain analyses in

support of exclusion from the definition of a hazardous waste for a

residue which was derived from burning hazardous waste in boilers

and industrial furnaces;

Sections 268.7(a), 268.40(a), (b), and (f), 268.41(a),

268.43(a)--Leaching procedure for evaluation of waste to determine

compliance with land disposal treatment standards;

Sections Sec. 270.19(c)(1)(iii) and (iv), and

270.62(b)(2)(I)(C) and (D)--Analysis and approximate quantification

of the hazardous constituents identified in the waste prior to

conducting a trial burn in support of an application for a hazardous

waste incineration permit; and

Sections 270.22(a)(2)(ii)(B) and 270.66(c)(2)(I) and

(ii)--Analysis conducted in support of a destruction and removal

efficiency (DRE) trial burn waiver for boilers and industrial

furnaces burning low risk wastes, and analysis and approximate

quantification conducted for a trial burn in support of an

application for a permit to burn hazardous waste in a boiler and

industrial furnace.

Appendix B.--States and Territories With Mixed Waste Authorization

[As of June 30, 1997]

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Effective

State/territory FR date date FR cite

----------------------------------------------------------------------------------------------------------------

Colorado...................................... 10/24/86 11/7/86 51 FR 37729.

Tennessee..................................... 6/12/87 8/11/87 52 FR 22443.

S. Carolina................................... 7/15/87 9/13/87 52 FR 26476.

Washington.................................... 9/22/87 11/23/87 52 FR 35556

Georgia....................................... 7/28/88 9/26/88 53 FR 28383.

Nebraska...................................... 10/4/88 12/3/88 53 FR 38950.

Kentucky...................................... 10/20/88 12/19/88 53 FR 41164.

Utah.......................................... 2/21/89 3/7/89 54 FR 7417.

Minnesota..................................... 4/24/89 6/23/89 54 FR 16361.

Ohio.......................................... 6/28/89 6/30/89 54 FR 27170.

Guam.......................................... 8/11/89 10/10/89 54 FR 32973.

N. Carolina................................... 9/22/89 11/21/89 54 FR 38993.

Michigan...................................... 11/24/89 12/26/89 54 FR 48608.

Texas......................................... 3/1/90 3/15/90 55 FR 7318.

New York...................................... 3/6/90 5/7/90 55 FR 7896.

Idaho......................................... 3/26/90 4/9/90 55 FR 11015.

Illinois...................................... 3/1/90 4/30/90 55 FR 7320.

Arkansas...................................... 3/27/90 5/29/90 55 FR 11192.

Oregon........................................ 3/30/90 5/29/90 55 FR 11909.

Kansas........................................ 4/24/90 6/25/90 55 FR 17273.

N. Dakota..................................... 6/25/90 8/24/90 55 FR 25836.

New Mexico.................................... 7/11/90 7/25/90 55 FR 28397.

Oklahoma...................................... 9/26/90 11/27/90 55 FR 39274.

Connecticut................................... 12/17/90 12/31/90 55 FR 51707.

Florida....................................... 12/14/90 2/12/91 55 FR 51416.

Mississippi................................... 3/29/91 5/28/91 56 FR 13079.

S. Dakota..................................... 4/17/91 6/17/91 56 FR 15503.

Indiana....................................... 7/30/91 9/30/91 56 FR 41959.

Louisiana..................................... 8/26/91 10/26/91 56 FR 41959.

Wisconsin..................................... 4/24/92 4/24/92 57 FR 15092.

Nevada........................................ 4/29/92 6/29/92 57 FR 18083.

California.................................... 7/23/92 8/1/92 57 FR 32725.

Arizona....................................... 11/23/92 1/22/93 57 FR 54932.

Missouri...................................... 1/11/93 3/12/93 58 FR 3497.

Alabama....................................... 3/17/93 5/17/93 58 FR 14319.

Vermont....................................... 6/7/93 8/6/93 58 FR 31911.

Montana....................................... 1/19/94 3/21/94 59 FR 2752.

New Hampshire................................. 11/14/94 1/13/95 59 FR 56397.

Wyoming....................................... 10/04/95 10/18/95 60 FR 51925.

Delaware...................................... 8/8/96 10/7/96 61 FR 41345.

Total: 39 States and 1 Territory.

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Appendix C: Testing Reference Documents

The following references provide information on approved methods

for testing hazardous waste samples:

American Public Health Association, Standard Methods for the

Examination of Water and Wastewater, 17th Edition. 1989. Available

from the Water Pollution Control Federation, Washington, D.C.,

S0037.

U.S. Environmental Protection Agency, Design and Development of a

Hazardous Waste Reactivity Testing Protocol. EPA Document No. 600/2-

84-057, February 1984.

U.S. Environmental Protection Agency, Methods for Chemical Analysis

of Water and Waste. EPA-6001114-79-020. Washington, D.C., 1983.

U.S. Environmental Protection Agency, Test Methods for Evaluating

Solid Waste, Physical/Chemical Methods. SW-846. Third Edition (1986)

as amended. Avail able from the Government Printing Office, by

subscription, 955-001-00000-1, or from the National Technical

Information Service, PB88-239-223. Washington, D.C., January, 1995.

U.S. Environmental Protection Agency, The New Toxicity

Characteristic Rule: Information and Tips for Generators. Office of

Solid Waste, 530/SW-90-028, April, 1990.

U.S. Environmental Protection Agency, ORD, and U.S. Department of

Energy, Characterizing Heterogenous Wastes: Methods and

Recommendations. EPA/600/R-92/033, February 1992.

U.S. Environmental Protection Agency, Office of Solid Waste and

Emergency Response. ``Joint EPA/NRC Guidance on the Definition and

Identification of Commercial Mixed Low-Level Radioactive and

Hazardous Waste,'' Directive No. 9432-00-2, October 4, 1989.

Appendix D: List of Regulations

Environmental Protection Agency General Regulations for Hazardous

Waste Management, 40 CFR Part 260.

Environmental Protection Agency Regulations for Identifying

Hazardous Waste, 40 CFR Part 261.

Environmental Protection Agency Regulations for Hazardous Waste

Generators, 40 CFR Part 262.

Environmental Protection Agency Standards for Owners and Operators

of Hazardous Waste Treatment, Storage and Disposal Facilities, 40

CFR Part 264.

Environmental Protection Agency Interim Status Standards for Owners

and Operators of Hazardous Waste Facilities, 40 CFR Part 265.

Environmental Protection Agency Regulations on Land Disposal

Restrictions, 40 CFR Part 268.

Nuclear Regulatory Commission Regulations--Standards for Protection

Against Radiation, 10 CFR Part 20.

Nuclear Regulatory Commission Regulations--Rules of General

Applicability to Domestic Licensing of Byproduct Material, 10 CFR

Part 30.

Nuclear Regulatory Commission Regulations--Domestic Licensing of

Source Material, 10 CFR Part 40.

Nuclear Regulatory Commission Regulations--Domestic Licensing of

Production and Utilization Facilities, 10 CFR Part 50.

Nuclear Regulatory Commission Regulations--Licensing Requirements

for Land Disposal of Radioactive Waste, 10 CFR Part 61.

Nuclear Regulatory Commission Regulations--Domestic Licensing of

Special Nuclear Material, 10 CFR Part 70.

[FR Doc. 97-30528 Filed 11-19-97; 8:45 am]

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