Storage, Treatment, Transportation, and Disposal of Mixed Waste

Part III

Environmental Protection Agency

_______________________________________________________________________

40 CFR Part 266

Storage, Treatment, Transportation, and Disposal of Mixed Waste;

Proposed Rule

Proposed Rules

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.

egulatory 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: [email protected]. 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)

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: [email protected]. 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.

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

mments, 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?

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

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

re 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

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

LD

OE--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

ol 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

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

l 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

et 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?

e--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..................

l 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

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

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

al'' 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?

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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BILLING CODE 6560-50-C

B. What Regulatory Changes Are We Proposing for Transportation and

Disposal of LLMW and Eligible NARM?

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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BILLING CODE 6560-50-C

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?

E 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

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

ion 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

l 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)

mation

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

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

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,

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?

lace 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?

f 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

onal 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

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

f 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

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)

icensee 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)

d 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

ulatory

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

ive 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.

e 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.

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

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.

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.

he 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)

o

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.

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

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.

nitial

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

ith 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

ts 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

RC, 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

. 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.)

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?

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

lating 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

ough 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)

hat 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

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

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

tage 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)

ealth 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?

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

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

tional 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

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

mmenters, 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

on 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

oncerning 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

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

irements. 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

ement 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.

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

tituents 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

eets 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

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

r ``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?

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

ements.

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

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

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

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)

tion 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

eps (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.

at 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

e 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

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.

e 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)

61, 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

e 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

n 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

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

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

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

egulated 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

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

ackage, 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)

med 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

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

efore, 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

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

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

ve 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 lo

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