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ENVIRONMENTAL PROTECTION D.C. 20460, or (2) if using special reports or other materials referred to in AGENCY delivery, such as overnight express this proposal, contact the RCRA Docket service: RCRA Docket Information at the phone number or address listed 40 CFR Part 266 Center (RIC), Crystal Gateway One, 1235 above. Jefferson Davis Highway, First Floor, [FRN±6470±1] SUPPLEMENTARY INFORMATION: Follow Arlington, VA 22202. It would also be these instructions to access the rule RIN 2050±AE45 helpful, although not mandatory, to electronically on the Internet: include an electronic copy by diskette www:http://www.epa.gov/epaoswer/ Storage, Treatment, Transportation, or Internet E-mail. In this case, send hazwaste/radio. and Disposal of Mixed your comments to the RCRA The official record for this section AGENCY: Environmental Protection Information Center on labeled personal will be kept in form. Accordingly, Agency (EPA). computer diskettes in ASCII (TEXT) EPA will transfer all comments received format or a word processing format we ACTION: Proposed rule; request for electronically into paper form and place comments. can convert to ASCII (TEXT). Please them in the official record, which will include on the disk label the name and also include all comments submitted SUMMARY: The Environmental Protection version or edition of your word directly in writing. The official record is Agency (EPA) is today proposing to processing software as well as your the record maintained at the address in provide increased flexibility to facilities name. Protect your diskette by putting it ADDRESSES at the beginning of this that manage low-level mixed waste in a protective mailing envelope. To document. Please note, even if you (LLMW) and naturally occurring and/or send a copy by Internet E-mail, address commented on the March 1, 1999 accelerator-produced Radioactive it to: [email protected]. Advance Notice of Proposed Material (NARM) mixed with hazardous Make sure this copy is in ASCII format Rulemaking (64 FR 10063), for your waste. The proposal also aims to reduce that doesn’t use special characters or comments to be considered for the final dual regulation of LLMW, which is encryption. Cite the docket Number F– rulemaking, you must again submit subject to Resource Conservation and 99–ML2P–FFFFF in your electronic file. comments on this revised and expanded Recovery Act (RCRA) and to the Atomic Commenters should not submit proposal. Energy Act (AEA). We believe the electronically any confidential business EPA responses to comments, whether changes we are proposing will lower information (CBI). An original and two the comments are written or electronic, cost and reduce paperwork burden, copies of CBI must be submitted under will be in a notice in the Federal while improving or maintaining separate cover to: RCRA CBI Document Register or in a response to comments protection of human health (including Control Officer, Office of Solid Waste document placed in the official record worker exposure to radiation) and the (5305W), U.S. EPA, 401 M Street, SW, for this rulemaking. EPA will not environment. Washington, D.C. 20460. immediately reply to commenters We are proposing to allow on-site The RCRA Information Center is at electronically other than to seek storage and treatment of these at Crystal Gateway One, 1235 Jefferson clarification of electronic comments that the generator’s site. Today’s proposal Davis Highway, First Floor, Arlington may be garbled in transmission or will require the use of tanks/containers Virginia. You may look at and copy during conversion to paper form. to solidify, neutralize, or otherwise supporting information for RCRA rules stabilize the waste and would apply from 9:00 a.m. to 4:00 p.m. Monday Table of Contents only to generators of low-level mixed through Friday, except for Federal I. Statutory Authority waste who are licensed by the Nuclear holidays. To review docket materials II. Summary of Today’s Action Regulatory Commission (NRC) or an you should make an appointment by A. What regulatory changes are we Agreement State. calling (703) 603–9230. You may copy proposing for on-site storage and We also seek to exempt LLMW and up to 100 pages from any regulatory treatment of LLMW? hazardous NARM waste from RCRA document at no cost. Additional copies B. What regulatory changes are we manifest, transportation, and disposal cost $0.15 per page. The index and some proposing for transportation and requirements when certain conditions supporting materials are available disposal of LLMW and eligible NARM? III. Why are we Proposing a Storage, are met. Under this conditional electronically. See the Supplementary Treatment, Transportation, and Disposal exemption, generators and treaters must Information section for information on Rulemaking? still comply with manifest, transport, accessing them. A. Need to address dual regulation and disposal requirements under the FOR FURTHER INFORMATION CONTACT: For concerns NRC (or NRC-Agreement State) general information about this proposed B. Need to respond to HWIR consent regulations for LLW or NARM. rule, contact the RCRA Hotline, Office decree DATES: To make sure we consider your of Solid Waste, U.S. Environmental C. Need to respond to a rulemaking comments, they must be received on or petition from USWAG and concerns of Protection Agency, Washington, D.C. other mixed waste generators regarding before February 17, 2000. 20460, at (800) 424–9346 (toll free); or capacity We are seeking comment on this TDD (800) 553–7672 (hearing impaired). IV Precedent for Regulatory Flexibility in this proposed rulemaking from all interested In the Washington, D.C. metropolitan Proposal parties. area call (703) 412–9810 or TDD (703) A. How does the conditional exemption in ADDRESSES: You can send an original 486–3323 (hearing impaired). For the Military Munitions Rule work? and two copies of your comments information on the disposal portion of B. What is our rationale for today’s referencing Docket Number F–99– the proposed rule, contact Grace Ordaz proposed conditional exemption? ML2P–FFFFF to (1) if using regular US at (703) 308–1130 in the Office of Solid V Low-Level Mixed Waste Storage and Treatment Postal Service mail: RCRA Docket Waste. For information on the storage A. What conditional exemption for stored Information Center, Office of Solid portion of the proposed rule, contact or treated low-level mixed waste are we Waste (5305G), U.S. Environmental Nancy Hunt at (703) 308–8762 or Chris proposing? Protection Agency Headquarters (EPA, Rhyne at (703) 308–8658 in the Office 1. How does the proposal facilitate decay- HQ), 401 M Street, SW, Washington, of Solid Waste. To get copies of the in-storage?

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2. For what time period is a storage 5. What is the purpose of the records that ALRA—As Low As Is Reasonably Achievable exemption valid? you are required to keep? ANPR—Advance Notice of Proposed 3. What are your on-site treatment options? 6. How is the public involved? Rulemaking B. What is our low-level mixed waste F. What is EPA’s site-specific, risk-based ARAR—Applicable or Relevant and storage and treatment proposal? variance alternative for disposal? Appropriate Requirements 1. Which generators and wastes will be G . How did we conduct our technical BDAT—Best Demonstrated Available eligible for the storage and treatment assessment for the disposal of treated Technology exemption? waste at low-level CBI—Confidential Business Information 2. What conditions must you meet as a disposal facilities? CERCLA—Comprehensive Environmental generator? 1. How did we assess low-level radioactive Response, Compensation, and Liability 3. Whom should you notify if you want to waste disposal facilities? Act claim an exemption? 2. What was the technical assessment we DOD—Department of Defense 4. What records must you keep for the conducted? DOE—Department of Energy exemption? 3. What did we conclude from our EEI—Edison Electric Institute 5. How can your stored waste lose the technical analyses? EPA—Environmental Protection Agency exemption? H. Key stakeholder issue (referred to as ‘‘we’’ throughout this 6. Can your exemption be reclaimed if you VII Regulatory Impacts document) fail to meet a condition? A. What are the regulatory benefits of this FFCA—Federal Facilities Compliance Act C. How will implementation and rule? FUSRAP—Formerly Utilized Sites Remedial enforcement of the conditional B. What are the costs of this rule? Action Program exemption for storage and treatment of C. What are the economic impacts of this GWRL—Groundwater risk levels LLMW take place? rule? HSWA—Hazardous and Solid Waste 1. Is this a self-implementing rule? VIII State Authorization Amendments of 1984 2. How will we enforce the proposed IX Relationship with other RCRA and HWIR— Identification Rule storage exemption? Environmental Programs ICR—Information Collection Request D. What background information did we A. What is the relationship of this proposal LDR—Land Disposal Restrictions use for this proposal? with other RCRA regulatory programs? LLW—Low-Level Radioactive Waste E. What was the response of commenters 1. Does this proposal change how you LLMW—Low-Level Mixed Waste to the ANPR? determine if a waste is hazardous? LLRWDF—Low-Level Radioactive Waste 1. What comments did we receive Disposal Facility concerning a conditional exemption for 2. Can LLMW or eligible NARM be a storage? nonhazardous waste under this MMR—Military Munitions Rule 2. What were the comments on decay-in- proposal? NAAG—National Association of Attorneys storage? 3. How will the RCRA-exempted waste General 3. What comments did we receive differ from wastes delisted under 40 CFR NARM—Naturally Occurring and/or concerning treatment of waste in storage? 260.22? Accelerator-produced Radioactive 4. What comments did we receive 4. Will my waste analysis plan for my Material concerning possible conditions for a RCRA-permitted TSDF change? NGA—National Governors’ Association storage exemption? 5. Will the proposed rule change how the NNPP—Naval Nuclear Propulsion Program VI Transportation and Disposal Conditional RCRA closure requirements apply to my NRC—Nuclear Regulatory Commission Exemption for Mixed Waste and Eligible disposal facility? NTTAA—National Technology Transfer and Narm 6. How does the conditional exemption Advancement Act A. What regulatory relief are we providing relate to RCRA air emission standards? OMB—Office of Management and Budget for transportation and disposal proposal? B. What is the relationship of this rule to OSW—Office of Solid Waste B. Applicability of the proposal other environmental programs? RCRA—Resource Conservation and Recovery 1. To what types of waste does this rule 1. How are CERCLA actions affected by Act apply? this proposal? RFA—Regulatory Fairness Act 2. Who could benefit from this proposal, 2. How might Clean Air Act regulations be RIC—RCRA Information Center and what is the profile of their waste? affected? RQ—Reportable Quantity 3. What other regulatory relief provisions 3. How might Clean Water Act be affected? SARA—Superfund Amendments and may apply? X Regulatory Assessment Requirements Reauthorization Act C. What is the Point of Exemption? A. Executive Order 12866: Determination SBREFA—Small Business Regulation D. Implementation and Enforcement of Significance Enforcement Fairness Act 1. How will the transportation and disposal B. Executive Order 13132: Federalism SQG—Small Quantity Generator conditional exemption be implemented? C. Executive Order 12898: Environmental TC—Toxicity Characteristic 2. What happens if your waste no longer Justice TRI—Toxics Release Inventory meets the conditions of the D. Executive Order 13045: Protection of TSDF—Treatment, Storage and Disposal transportation and disposal conditional Children from Environmental Health Facility exemption? Risks and Safety Risks UHC—Underlying Hazardous Constituent 3. Are there any additional requirements E. Executive Order 13084: Consultation UMRA—Unfunded Mandates Reform Act of you must meet? and Coordination with Indian Tribal 1995 4. Can your exemption be reclaimed if you Governments UMTRCA—Uranium Mill Radiation fail to meet a condition? F. The Regulatory Flexibility Act as Control Act 5. What can a LLRWDF do to reduce the Amended by the Small Business USWAG—Utility Solid Waste Activities potential applicability of RCRA Regulatory Enforcement Fairness Act of Group authorities? 1996 UTS—Universal Treatment Standards E. What conditions must you meet prior to G. Unfunded Mandates Reform Act claiming the transportation and disposal H. National Technology Transfer and Definition of Terms Used in the exemption? Advancement Act of 1995 Preamble 1. Why are we requiring LDR treatment? I. Paperwork Reduction Act Agreement State—means a state that 2. Why is notification a condition for the XI List of Comments Being Requested by EPA has entered into an agreement with the exemption? in this Proposal NRC under subsection 274b of the 3. What are the conditions for manifesting XII Supporting Documents and transporting the exempted waste? Atomic Energy Act of 1954, as amended 4. Why must the exempted waste be Acronyms Used in This Preamble (68 Stat. 919), to assume responsibility disposed only in a LLRWDF licensed by AEA—Atomic Energy Act of 1954, as for regulating within its borders source, NRC in accordance with 10 CFR 61? amended special nuclear, or byproduct material

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NUREG—refers to Nuclear Regulatory Rulemaking)—refers in this document to Mixed Waste—defined in RCRA as Commission publications and the advance notice published in the amended by the Federal Facility documents that include: formal staff Federal Register on March 1, 1999 (64 Compliance Act of 1992, means a waste reports, which cover a variety of FR 10063) on mixed waste storage. that contains both RCRA hazardous regulatory, technical and administrative Appropriately trained—means trained waste and source, special nuclear, or by- subjects; brochures, which include in a manner that ensures that low-level product material subject to the Atomic manuals, procedural guidance, mixed waste is safely managed and Energy Act of 1954, as amended. directories and newsletters; conference includes training in chemical and Mixed Facility— proceedings and presented at a radiological . means a waste treatment facility conference or workshop; and books, Eligible NARM—for the purpose of permitted by EPA or an Authorized which serve a technical purpose or an this proposal, means NARM that meets State to treat hazardous waste and industry-wide needs. Many of the the acceptance criteria of a LLRWDF licensed by the NRC or Agreement State NUREG documents are listed on the licensed by NRC or an Agreement State to manage radioactive waste. NRC Home Page (http://www.nrc.gov). in accordance with 10 CFR 61, and is On-site—is defined in the RCRA also contaminated by a hazardous Naturally Occurring and/or regulations at 40 CFR 260.10, et seq. Accelerator-produced Radioactive waste, and therefore, is eligible for the RCRA program agency—means EPA, Material (NARM)—means radioactive transportation and disposal conditional or the State agency authorized to materials that are naturally occurring or exemption. implement the RCRA program. produced by an accelerator. The Hazardous waste—means any Radioactive waste—is generally naturally occurring radioactive material material which is defined to be classified as source, special nuclear, or (NORM) is defined below. Currently hazardous waste in accordance with 40 by-product material, and is exempt from NARM is not regulated by NRC or EPA. CFR 261.3, ‘‘Definition of Hazardous the definition of solid waste at 42 U.S.C. Rather it is regulated by the States under Waste.’’ 6903, 40 CFR 261.4(a)(4). State law, or by DOE under DOE Orders. Legacy waste—means waste that was Tie-down conditions—include NRC generated by past activities and is in Naturally Occurring Radioactive guidance documents and policies storage because appropriate treatment Material (NORM)—is a subset of NARM concerning storage and treatment of technologies have not been developed, and refers to materials whose LLW which become part of the NRC or or treatment and disposal capacity has radioactivity has been enhanced Agreement State radioactive materials not been available. It has been stored (radionuclide concentrations are either license by reference. longer than RCRA regulatory time increased or redistributed where they limits. are more likely to cause human Who is Eligible for This Rule? Low-Level Mixed Waste (LLMW)— exposures) usually by mineral The conditional exemption proposed means low-level radioactive waste extraction or processing activities. for low-level mixed waste (LLMW) containing a RCRA hazardous waste Examples are exploration and storage and treatment applies to any component. production wastes from the oil and mixed waste generator that has an NRC Low-Level radioactive waste (LLW)— natural gas industry, and phosphate slag or Agreement State license to possess means radioactive waste containing piles from the phosphate mining radioactive material or to operate a source, special nuclear, or by-product industry. This term is not used to nuclear reactor, so long as the waste material which is not classified as high- describe or discuss the natural generator can satisfy the conditions set level radioactive waste, transuranic radioactivity of rocks and soils, or forth in this proposal. waste, spent nuclear fuel, byproduct background radiation, but instead refers The transportation and disposal material as defined in § 11(e)(2) of the to materials whose radioactivity is exemption applies to generators of Atomic Energy Act or NARM. (See also technologically enhanced by LLMW and eligible NARM so long as NRC definition of ‘‘waste’’ at 10 CFR controllable practices. they meet all specified conditions. 61.2) NRC or Agreement State license— Facilities potentially affected by this Low-Level Radioactive Waste Disposal means a license issued by the Nuclear action include those identified in Facility (LLRWDF)—means a disposal Regulatory Commission or an Table 1.

TABLE 1.ÐFACILITIES POTENTIALLY AFFECTED BY THE PROPOSAL

Category Examples of regulated facilities

Nuclear Utilities ...... Firms that generate electricity using nuclear fuel as the source of energy and have been licensed by the NRC Universities and Academic Academic institutions at all levels that are licensed by NRC, or an Agreement State, to use radionuclides for aca- Institutions. demic, 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 institu- tions 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.

The preceding table is not intended to examples of facilities likely to be whether you are affected by this be exhaustive, but rather provides affected by this proposal. To determine regulatory action, you should carefully

VerDate 29-OCT-99 18:44 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm03 PsN: 19NOP3 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules 63467 examine the applicability criteria in LLMW and eligible NARM waste remain must notify the RCRA program agency Parts V and VI of this preamble. If you subject to RCRA land disposal that you meet the conditions. However, have any questions regarding the restriction (LDR) treatment standards if information you provide on your applicability of this section to a under the transportation and disposal notification is inaccurate, your claim for particular entity, consult the persons exemption. a conditional exemption is nullified and listed under FOR FURTHER INFORMATION The ‘‘Diagram of the Storage, you will be subject to RCRA Subtitle C CONTACT. Treatment and Disposal Exemptions enforcement. I. Statutory Authority Under the Proposal’’ gives an overview of when waste would be conditionally A. What Regulatory Changes are We The statutory basis for this rule is in exempt from certain RCRA hazardous Proposing for On-Site Storage and Sections 2002(a), 3001, 3002, 3004, waste management requirements. Treatment of LLMW? 3005, 3006, 3007, and 3013 of the Solid Briefly, LLMW generated and stored Our proposal would allow generators Waste Disposal Act of 1970, as amended onsite in tanks or containers is by the Resource Conservation and exempted as long as the exemption of LLMW to claim a conditional Recovery Act of 1976 (RCRA) and the conditions listed in § 266.230 are met. exemption from the RCRA definition of Hazardous and Solid Waste NRC or Agreement State-licensed hazardous waste for mixed wastes Amendments of 1984 (HSWA), 42 generators may treat their LLMW on-site stored on-site (40 CFR 260.10). This U.S.C. 6905, 6912(a), 6921, 6922, 6924, pursuant to the limitations imposed by conditional exemption acknowledges 6926, 6927 and 6934. § 266.235. Any generator may send the protectiveness of storage of mixed II. Summary of Today’s Action LLMW and eligible NARM waste for waste subject to NRC regulations for low-level waste (LLW). During the In today’s notice we are proposing a disposal to a low-level radioactive waste storage of LLMW, our proposal would conditional exemption for the storage, disposal facility (LLRWDF) licensed by treatment, transportation, and disposal the NRC or an Agreement State, if all the allow the conditionally exempt waste to of low-level mixed waste (LLMW) conditions are met. Thus, certain LLMW be treated in tanks or containers to pursuant to the Hazardous Waste and eligible NARM waste of NRC enable neutralization, solidification, or Identification Rule (HWIR) consent licensees may remain exempted from other stabilization of the hazardous decree (see II. B.) regarding potential many RCRA requirements through portion of the waste. This regulatory regulatory flexibility related to much of the waste management process. flexibility would apply only to hazardous waste disposal requirements If your LLMW and eligible NARM is generators of low-level mixed waste and other relief as appropriate for not treated to meet LDR treatment who are licensed by NRC. Once your commercial mixed waste. (See Ref. 1, standards and is sent off-site for storage, LLMW is removed from storage for Consent Decree and Ref. 2, Side-bar treatment or disposal, your waste further management, it is subject to Letter.) As an NRC-licensed generator remains subject to all RCRA Subtitle C hazardous waste management who meets certain conditions we and NRC management requirements. requirements unless it qualifies for a specify, (a) your LLMW would be LLMW treated off-site at mixed waste disposal exemption. In that case, you exempt from some RCRA Subtitle C treatment facilities to meet LDR must show that it: meets the RCRA LDR storage and treatment regulations, and treatment standards may be eligible for treatment standards and NRC’s LLW (b) your LLMW and eligible NARM (see the disposal exemption if all conditions disposal requirements; and is destined for the transportation and disposal definitions and discussion in VI. B. 1.), for disposal at LLRWDFs licensed by exemption are met. would be exempt from some RCRA NRC. Subtitle C manifesting, transportation, In order to claim a conditional and disposal regulations. However, your exemption for storage or disposal you BILLING CODE 6560±50±P

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BILLING CODE 6560±50±C requirements for transportation of LLW the exemption for disposal may be B. What Regulatory Changes Are We using an NRC Uniform LLW Manifest shipped to an NRC-licensed disposal Proposing for Transportation and (Form 540, 541, and 542) for immediate facility. disposal to a facility licensed by the Disposal of LLMW and Eligible NARM? III. Why Are We Proposing a Storage, NRC or an Agreement State; and (4) We are proposing a conditional Treatment, Transportation, and maintain appropriate records (including exemption from hazardous waste Disposal Rulemaking? LDR records) for required time periods. transportation, and disposal Meeting all the prescribed conditions requirements for LLMW, and for eligible Mixed waste is regulated under NARM. (See discussion in VI.B.1.) will allow your LLMW or NARM- multiple authorities: RCRA (for the (Throughout this document when we contaminated hazardous waste to be hazardous component), as implemented refer to the conditional exemption for exempt from the RCRA regulatory by EPA or Authorized States; and AEA transportation and disposal of LLMW, definition of hazardous waste. (for the source, special nuclear, or we also mean eligible NARM.) The Under this exemption, you may not byproduct material component), as transportation and disposal exemption send your conditionally-exempt LLMW implemented by the NRC or NRC or an would not take effect until you fulfill all or eligible NARM for disposal to a DOE Agreement State (for commercially- of the following conditions: (1) Treat radioactive waste disposal facility. Such generated mixed wastes), or the your waste to meet the RCRA LDR action would make your waste subject Department of Energy (DOE) (for treatment standards; (2) notify to RCRA hazardous waste regulation, defense-related mixed waste generated appropriate regulatory agencies of your and potentially subject you to RCRA by DOE activities. NARM-contaminated exemption claim; (3) ship your waste enforcement authority. Note that DOE hazardous waste is also regulated under according to NRC and DOT shipping LLMW which meets the conditions of multiple authorities: RCRA (for the

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One of the eleven are relieved of some dual regulatory generators of LLMW. items concerns an exemption from requirements in managing their mixed We have assessed NRC regulations for RCRA hazardous waste disposal wastes. storage and disposal of LLW and regulations for nuclear power plant low- compared them with EPA’s regulations level mixed waste. The proposal must A. Need To Address Dual Regulation for hazardous waste storage, treatment, also request comment on other Concerns transportation, and disposal. Our review regulatory relief for these wastes, if EPA Members of the regulated community suggests that given the NRC’s regulatory finds that any other relief would be have informed us that the combination controls, human health and appropriate. (See ANPR for further of RCRA and NRC requirements for environmental protection from chemical information.) LLMW is burdensome, duplicative, and risks would not be compromised if we Today’s notice requests comment on costly and does not provide more deferred to NRC LLW management EPA’s proposal to provide regulatory protection of human health and the practices. Through this action, we are relief to LLMW generators and other environment than that achieved under proposing regulatory relief intended to regulatory relief as described in this one regulatory regime. We are allow the disposal of certain LLMW document. In a separate notice (see responding to these concerns about the (such as legacy waste requiring long- Docket # F–99–WH2P–FFFFF), EPA is inefficiencies of dual regulation, as well term storage due to lack of treatment proposing revisions to the mixture and as concerns about the radiation and disposal capacity), that have, until derived-from rules and requesting exposure of workers. now, been stored on-site by NRC comment on the other ten items set forth In addition, other mixed waste licensees as mixed waste subject to both in the consent decree. Those proposed generators have expressed concerns RCRA permitting and NRC licensing revisions include an exemption for about limited capacity of LLMW requirements. mixed waste that is managed in treatment and disposal. These concerns A similar situation exists at DOE compliance with the requirements in originated because RCRA § 3004(j) facilities. Available information suggests part 266, subpart N proposed here generally prohibits the storage of that currently DOE cannot treat some of today. hazardous wastes that are also subject to its LLMW due to a lack of treatment RCRA land disposal restrictions unless capacity. DOE operations, therefore, C. Need To Respond to a Rulemaking the storage is ‘‘solely for the purpose of must store their LLMW pursuant to a Petition From USWAG and Concerns of the accumulation of such quantities of RCRA storage permit. However, DOE is Other Mixed Waste Generators hazardous waste as are necessary to also subject to state compliance orders Regarding Capacity facilitate proper recovery, treatment or and other requirements for treatment of The Utility Solid Waste Activities disposal.’’ Under EPA’s regulation its mixed waste as a result of the Federal Group (USWAG), a national codifying RCRA § 3004(j) we presume Facility Compliance Act of 1992 (FFCA, organization of power companies, that the initial year of hazardous waste P.L. 102–386, October 6, 1992). This petitioned the U.S. EPA on January 13, storage is for the sole purpose of rulemaking effort may result in removal 1992 to request an amendment to RCRA accumulating a quantity necessary to of some DOE ‘‘legacy’’ waste from Subtitle C regulations governing storage facilitate treatment and disposal. storage if DOE: increases its own mixed of mixed wastes. The USWAG However, if you store LLMW on-site for waste treatment capacity or uses organization cited difficulties in more than one year, you have the commercial mixed waste treatment complying with RCRA Subtitle C burden of proving that the storage is for capacity to meet land disposal treatment regulations because of limited treatment the allowed purpose. standards; and disposes of LLMW technology and disposal capacity for Based on our information collection treated to LDR treatment standards in a some mixed wastes. (See discussion in effort in the ANPR and information from LLRWDF licensed by NRC by meeting ANPR for additional information.) We mixed waste generators, we found that the conditions specified to qualify for an regard today’s action as a response to capacity for the treatment and disposal exemption from disposal of LLMW as a the USWAG petition. of certain LLMW is not always available RCRA hazardous waste. Policy of Lower Enforcement Priority for (that is, LLMW containing certain We seek comment on the ways we Mixed Waste radionuclides are not allowed to be propose to address the issue of dual disposed at the only LLMW disposal regulation of LLMW storage, treatment, Recognizing this capacity difficulty, unit—licensed by the State of Utah, an transportation, and disposal. we issued a policy on the lower priority NRC Agreement State). We also found of enforcement of the storage that commercial mixed waste treatment B. Need To Respond to HWIR Consent prohibition contained in § 3004(j) of facilities have not been willing to accept Decree RCRA. (See 56 FR 42730; August 29, LLMW for treatment without viable The Edison Electric Institute (EEI), the 1991) § 3004(j) prohibits storage of a disposal options. Since mixed waste Utility Solid Waste Activities Group land disposal restricted waste disposal capacity is lacking, some (USWAG), and the Nuclear Energy (including mixed waste), except for the generators of LLMW store the waste on- Institute (NEI)—trade groups purposes of the accumulation of such site. In addition, we found that the representing commercial nuclear power quantities of hazardous waste necessary possibility of siting a new LLMW plants—were parties to settlement to facilitate proper recovery, treatment, disposal facility is extremely low. discussions regarding the deadline for or disposal. Because treatment Because of the very limited LLMW the final Hazardous Waste Identification technology or disposal capacity was still disposal capacity and the low Rulemaking, ETC v. Browner, C.A. No. unavailable for some mixed wastes, we probability of a disposal facility being 94–2119 (TFH) (D.D.C.). On April 11, extended this policy on October 31,

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1998. The lack of adequate treatment required to classify a waste as hazardous concluded that the technical design and technology or disposal capacity for waste subject to regulation under operating standards of the NRC meet or some mixed waste streams necessitated Subtitle C.’’ (Ibid. at 958.) exceed RCRA standards in virtually all storage in violation of land disposal respects, though there were differences B. What Is Our Rationale for Today’s restrictions for storage of mixed waste. noted in emphasis (performance based Proposed Conditional Exemption? The policy stated that violators who: rather than proscriptive requirements) were faced with the impossibility of In the MMR, EPA conditionally and implementation of NRC licensing complying with the RCRA regulations; exempted stored waste military requirements. Third, we reviewed the had a RCRA storage permit; and were munitions and transported from one compliance history of licensed facilities. storing their wastes in an military owned or operated facility to We looked at the documentation of environmentally responsible manner another. However, waste military incidents involving the storage and on- would be a low enforcement priority for munitions treatment, and disposal site treatment of radioactive wastes by EPA. The extension of the policy remain subject to RCRA Subtitle C. We LLMW generators who are NRC licensed expires October 31, 2001. (See 63 FR take a comparable approach for users of radionuclides. Our review of 59989; November 6, 1998.) This generators of LLMW in this proposed documented information suggests that proposed rulemaking is expected to rulemaking in that we propose to NRC licensed facilities almost replace the current enforcement policy. provide a conditional exemption for the universally have good low-level waste storage, treatment, transportation, and management safety records. (See Ref. 3, IV. Precedent for Regulatory Flexibility disposal of LLMW that is also subject to EPA’s compliance record review.) Based in This Proposal NRC or Agreement State regulation. We on our evaluation of these factors, we We are proposing regulatory base this proposal on the NRC or the concluded that low-level mixed wastes flexibility modeled on the conditional NRC Agreement State licensing process stored and treated at these facilities are exemption developed for waste military and regulatory requirements, and their not likely to be mismanaged, and that munitions in the Military Munitions adequacy in addressing risks from regulation under RCRA Subtitle C does Rule (40 CFR part 266, Subpart M) radioactivity and RCRA hazardous not increase protection to human health published February 12, 1997 (62 FR constituents. By promulgating a and the environment for these wastes 6622–6657). conditional exemption, we can during on-site storage and treatment. eliminate redundant or dual A. How Does the Conditional Exemption In addition to storage and treatment requirements where wastes are managed in the Military Munitions Rule Work? requirements, we reviewed NRC safely and mismanagement is unlikely; requirements and the practices of low- The Military Munitions Rule (MMR) the NRC-required safeguards are in level waste disposal facilities to identifies when conventional and place (for example, inspection, determine if they provide human health chemical military munitions become a monitoring, record keeping, reporting); and environmental protection similar to hazardous waste subject to RCRA and penalties or other consequences that achieved upon the disposal of low- Subtitle C. In the MMR, EPA developed may be imposed if the governing level mixed waste at RCRA Subtitle C a conditional exemption to provide regulatory framework is not followed. disposal facilities. (Ref. 7, Technical regulatory flexibility to storers and In proposing a conditional exemption assessment of LLRWDFs) Our review transporters of non- from RCRA Subtitle C regulation for suggests that NRC regulations for military munitions. Under the storage/treatment of NRC-licensee disposal facilities provide adequate conditional exemption, non-chemical generated LLMW, we evaluated certain protection so long as the hazardous waste military munitions that normally key factors. First, we reviewed the constituents are treated to LDR meet the definition of ‘‘hazardous licensing requirements and NRC treatment standards prior to disposal. waste’’ are not regulated under RCRA standards for the storage and treatment Therefore, compliance with LDR Subtitle C as a hazardous waste so long of LLW to determine whether NRC treatment standards is required to obtain as the facilities storing or transporting regulation of stored low-level waste the conditional exemption for disposal munitions meet all of the conditions for (LLW) adequately protects against of LLMW or eligible NARM. Disposal storing and transporting non-chemical possible risks from RCRA hazardous facilities licensed by the NRC will be waste munitions listed in the rule. (For constituents in mixed waste. Although accepting for disposal conditionally- the complete text of the Military NRC regulation and oversight are exempt LLMW as a low-level waste. We Munitions Rule, see 62 FR 6621, designed primarily for radiation risks, believe that LLMW or eligible NARM February 12, 1997.) the NRC, the regulated industry, and disposed at these facilities are not likely The Court of Appeals upheld all others have argued that these standards to be mismanaged and, therefore, RCRA aspects of the MMR in Military Toxics largely duplicate RCRA requirements Subtitle C regulation is not necessary to Project v. EPA, 146 F. 3rd 948 (D.C. Cir. and thus, protect against chemical risks protect human health and the 1998). The court agreed that ‘‘Congress to human health and the environment. environment. has not spoken directly to the issue of Second, we compared NRC low-level conditional exemption,’’ and upheld as waste and EPA hazardous waste storage V. Low-Level Mixed Waste Storage and reasonable EPA’s interpretation that and treatment requirements. (See Ref. 4, Treatment § 3001(a), which requires the EPA’s comparison of storage and We are proposing a conditional Administrator to promulgate criteria for treatment requirements, for details.) Our exemption from RCRA Subtitle C identifying and listing wastes that analysis was done independently of requirements to provide regulatory should be subject to Subtitle C similar studies performed by USWAG, flexibility related to storage and requirements, allows the use of the Electric Power Research Institute, treatment for (1) the on-site storage of conditional exemptions. (Ibid.) The and the Nuclear Management and low-level mixed waste if specified court also agreed with EPA that ‘‘where Resources Council, Inc. (who represent conditions are met; and (2) the on-site a waste might pose a hazard only under members of the power generation treatment of low-level mixed waste in limited management scenarios, and industry) regarding applicable NRC qualified tanks or containers (40 CFR other regulatory programs already standards. (See Ref. 6 and 16 for the 262.34). This regulatory flexibility address such scenarios, EPA is not industry studies.) These other studies applies to any generator of LLMW who

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules 63471 is an NRC licensee licensed to manage proposal facilitates decay-in-storage by invite comment on whether a time limit radioactive materials. supporting NRC license provisions may be appropriate, and, if so, on what related to short-lived radionuclides, and basis that time limit might be A. What Conditional Exemption for NRC requirements to limit worker established. Stored or Treated Low-Level Mixed exposures to meet ALARA (as low as Waste Are We Proposing? Under a decay-in-storage scenario, reasonably achievable). Once the LLMW is no longer subject to NRC We are proposing in today’s action to specified radionuclide decay has regulations when the radioactive conditionally exempt LLMW from the occurred, the waste may then be portion of the waste can be disposed of regulatory definition of hazardous disposed of as non-radioactive waste as non-radioactive material in waste, found in § 261.3, while the waste after ensuring that all radioactive accordance with the generator’s NRC is stored and/or treated on-site. The material labels are rendered license. At that point the mixed waste conditional exemption is available only unrecognizable (see 10 CFR 35.92 and would not be conditionally exempt from to NRC licensees who generate LLMW. 10 CFR 20.2001). RCRA Subtitle C. If the decayed waste Generators must notify EPA of the The time frame for LLW decay-in- still exhibits a RCRA hazardous waste storage units for which they are storage is based on the radionuclides characteristic or is a listed hazardous claiming an exemption and meet other (and half-lives) specified in a low-level waste, then it must be shipped promptly conditions listed below. During storage waste generator’s NRC license. Such off-site for treatment to meet LDR or treatment of conditionally exempted management of LLW significantly treatment standards, if needed, and LLMW, the generator will not be reduces worker exposures to disposed at a RCRA Subtitle C facility. required to have a RCRA storage permit radionuclides since containerized Thus, the RCRA storage limit for a for the conditionally exempt waste. The wastes are not shipped for treatment formerly mixed, now solely hazardous, conditional exemption proposed today and disposal while the short-lived waste prior to shipment off-site for applies only to LLMW and does not radionuclides are held in storage on-site treatment and/or disposal begins when: affect other RCRA wastes a licensee may for the purpose of radioactive decay. (1) The radionuclide with the longest generate. A RCRA permit may be This outcome is consistent with the half-life in a container has decayed as required for management of those other proposed RCRA conditional exemption. specified in the license (generally ten wastes depending on the circumstances. Several universities and medical This proposal also describes which facilities have indicated to us that a half-lives but sometimes fewer half- wastes are eligible for the conditional conditional exemption during the lives); and (2) the radiation emitted from exemption (§ 266.225), what a generator decay-in-storage time period would be a the unshielded surface of the waste is must do to qualify for the exemption if way of reducing risk, exposures, and not above background levels as specified conditions are met (§ 266.230), regulatory inefficiency in the measured by appropriate monitoring and how the exemption will be management of their LLMW. equipment as specified by NRC. implemented (§ 266.240 and following). Commenters on the ANPR confirmed Some radionuclides take longer than Under our proposal if you fail to meet this information. We are proposing that 10 half-lives to decay to levels that are any of the conditions, your LLMW is no the management of LLMW during on- indistinguishable from background. If longer exempted from the definition of site storage be regulated under NRC’s we limited the time for decay to either hazardous waste. As a hazardous waste, decay-in-storage requirements. ten half-lives or when the waste no your LLMW would be subject to RCRA We anticipate that the requirements longer registers above background Subtitle C regulation. Also, if a release will provide regulatory flexibility to levels, then some portion of LLMW that or other incident of waste spill occurs academic, medical, research, and other is being stored may still emit radiation while the waste is being stored, your facilities by reducing overlapping RCRA levels above background. To minimize waste may be subject to regulation as a and AEA requirements. For LLMW radiation exposures we have used ‘‘and’’ hazardous waste. For example, you may containing short-lived radionuclides, in the paragraph above to ensure that be subject to the provisions of RCRA today’s proposed conditional exemption the LLMW does not emit radiation that § 7003 which specify that in any would be temporary because it would be is above background levels as measured situation where an imminent and in effect only until the radioactive by appropriate monitoring equipment. 1 substantial endangerment to health or component of the mixed waste has We invite comment on how waste being the environment is caused by the decayed to a point that it is no longer stored for decay under 10 CFR handling of solid or hazardous wastes subject to NRC license requirements. 20.2001(a)(2) and 10 CFR part 35 can be EPA can order any person contributing After the decay-in-storage process is completely decayed while at the same to the problem to take steps to clean it completed, the waste becomes subject to time reenter RCRA Subtitle C without a up. Violation of RCRA § 7003 orders can RCRA Subtitle C requirements. We gap in time during which the waste is result in significant penalties. would appreciate comments regarding not regulated as either hazardous or the standard to use for determining radioactive. Please indicate in your 1. How Does the Proposal Facilitate when the decayed waste would reenter comment what mixed wastes you Decay-in-Storage? RCRA Subtitle C management. generate that have radionuclides with NRC generally allows research, activity levels which would not qualify medical, and other facilities to store 2. For What Time Period is a Storage for the conditional exemption we are low-level wastes containing Exemption Valid? proposing if it were based on whichever radionuclides with half-lives of less We are proposing that an exemption occurred first—ten half-lives of decay or than 65 days (or more under an will be valid as long as the mixed waste: not registering above background levels. amended license) until 10 half-lives (1) Remains on-site and (2) is subject to have elapsed and the radiation emitted NRC regulation. We are considering 1 Note: The NRC licensee is not required to from the unshielded surface of the waste whether a general storage exemption immediately monitor the waste after decay of 10 (as measured with an appropriate time limit should be imposed. A time half-lives. Prior to monitoring there may be an interval when the waste is hazardous only. survey instrument) is indistinguishable limit may affect both facilities with However, the lower cost of diposing of hazardous from background levels. This process is untreatable legacy wastes and future rather than LLMW should serve to encourage known as decay-in-storage. Our treatment and disposal capacity. We prompt monitoring and disposal.

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Also indicate how this limitation would done within 90 days of generation.) For exemption to those violations which affect your management of the waste. that reason, under the conditional may result in an environmental impact). exemption for on-site storage of LLMW, (c) You must comply with § 266.225 3. What Are Your On-Site Treatment we are not including on-site thermal which requires that the eligible waste be Options? treatment of LLMW by generators subject to regulation by the NRC. The We are proposing to allow the on-site without an appropriate RCRA permit. proposal also requires that the waste be treatment of LLMW during a storage generated ‘‘on-site’’ at the facility exemption from hazardous waste B. What is Our Low-Level Mixed Waste seeking the exemption. (See 40 CFR regulation under the conditions listed Storage and Treatment Proposal? 260.10 f.) For the purposes of this above for the storage conditional We describe our proposal in the conditional exemption, we consider exemption. In addition, the mixed waste following sections which cover what your mixed waste to be on-site if you must be: (a) treated on-site; and (b) generators and wastes are eligible, what can move your waste without a RCRA physically or chemically treated in a conditions must be met, and how an manifest from a storage unit at the point tank or container in accordance with the exemption is claimed. of generation to another storage/ generator’s NRC license requirements. If accumulation area which you own or these conditions are met, then a RCRA 3. Which Generators and Wastes Will be operate (with the same RCRA ID treatment permit during storage will not Eligible for the Storage and Treatment number). For example, a LLMW be required. Exemption? generator may transfer waste from one RCRA allows accumulation and Generators of LLMW regulated by the location to another storage location so treatment of hazardous waste in a tank NRC will be eligible for the proposed long as both the locations are owned by or container within 90–270 days of storage exemption. The types of the same entity such as a university, or generation of the waste without a permit facilities that may be affected include pharmaceutical firm, and are operated provided generators comply with the nuclear power plants, fuel cycle under the same RCRA ID number or standards for storage tanks and facilities, pharmaceutical companies, same NRC license. Thus, under our containers. An NRC license may allow medical and research laboratories, proposal, commercial mixed waste solidification, neutralization, or other universities and academic institutions, processing facilities will not be eligible stabilization of LLW in the tank or hospitals, and some industrial facilities. for this exemption for wastes received container. If the waste also includes We describe eligible wastes in § 266.225 from their customers. Finally, the RCRA characteristic or listed hazardous of this proposal. proposal requires that the waste be material, then a RCRA permit is compatibly stored in tanks, or normally required if the waste is not 4. What Conditions Must You Meet as containers. We do not believe other treated within 40 CFR part 262 a Generator? storage units (for example, surface accumulation time limits. In this Conditions in § 266.230 which you, as impoundment units) are appropriate proposal, we are not requiring a RCRA storage devices under this proposal. treatment permit from a generator if the a generator, must meet to qualify for the exemption include the following: Commenters on the ANPR suggested we on-site treatment is allowed for LLW extend the conditional exemption to (a) You must have a valid NRC under the facility’s NRC license. Such wastes stored ‘‘off-site.’’ We request license. Our proposed exemption is treatment may, for example, allow comment regarding both the definition cement to be added to a legacy waste predicated on our finding that NRC of ‘‘on-site’’ and the appropriateness of (see definitions at the beginning of this oversight provides the regulatory extending a conditional exemption to proposal) stored in a container such that control necessary to ensure that the facilities that own/operate storage units it will then be able to meet LDR hazardous portion of an exempted waste that do not meet our current definition requirements. Or a mixed waste may be will not be mismanaged. It is the NRC of ‘‘on-site.’’ This conditional treated chemically to neutralize its license, issued and enforced by an exemption applies only to stored waste corrosivity so that it may be safely independent government agency, that is which is generated and owned by the stored in a tank or container. the basis of the proposed exemption. same facility. We also seek comment on EPA’s regulations governing on-site (b) You must comply with the whether the conditional exemption storage and treatment in tanks and requirements of your NRC license for should include a storage facility which containers are generally the same as storing low-level mixed waste. We serves as a consolidation point for a NRC’s. Without the proposed believe that adherence to NRC licensing single entity. For example, a university conditional exemption, treatment of conditions is important to the safe storage facility that serves several legacy waste would require a generator storage of the hazardous portion of the noncontiguous laboratories on a campus to obtain a permit to address an expired LLMW stream. As a result of comments which have the same NRC license, or RCRA Part 262 accumulation time limit. we received on the ANPR, we are now which have the same RCRA hazardous We are proposing to allow the types of requesting comment on whether we waste generator identification number. treatment included in NRC licenses to should increase the specificity of this (d) You must notify us (the EPA manage the radioactive material in the condition by limiting it to the kinds of Region or the RCRA Subtitle C waste. We believe that additional RCRA NRC requirements that if violated may Authorized State Agency) by certified requirements would not increase result in endangerment of human health mail, return receipt requested, that you protection of human health and the or the environment. For example, we claim the exemption for a storage unit environment. Nevertheless, more could include violation of those terms containing low-level mixed waste. Your specific controls are appropriate for and conditions that result in filing a notification must be signed by the some forms of treatment, such as report under 10 CFR Subpart M, Section owner, operator, or other appropriate thermal treatment (as defined in 40 CFR 20.2201–2203. We seek comment on official of your facility. Notification of 260.10) or , because of the whether this condition should be: broad your claim should be made either complexity of the treatment and the (and include the loss of the exemption within 90 days of the effective date of specificity of RCRA requirements. if any LLW storage requirement of the this rule in your State or within 90 days (Thermal treatment is not now allowed NRC license is not met); or more of when a storage unit is first used to under RCRA without a permit even if specific (and limit the loss of the store low-level mixed waste for which

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules 63473 you claim a conditional exemption. This provide a strong incentive to properly You must report in writing to us (or requirement provides us with a record manage the waste, and that the a RCRA Authorized State Agency), with of who has made a claim for the regulatory framework imposed by the a copy to NRC, any failure to meet a exemption. Your notification is self- NRC makes mismanagement of these condition within 30 days of learning of implementing. You will not receive a wastes unlikely. Because of the the failure. If the failure to meet the notice of approval from EPA or your importance of the conditions, we conditions has the potential for State Agency. propose that if you (as a generator) fail endangering human health or the (e) You must certify that facility to meet any one of them, then your environment then you, the generator, personnel who manage stored LLMW waste will no longer be conditionally must notify us orally within 24 hours are appropriately trained. Personnel exempt and will be subject to full RCRA and take steps outlined in your managing the hazardous portion of the Subtitle C regulation. waste should be trained in identifying The exemption does not replace the emergency contingency plan. This and providing initial response to a permitting requirements currently requirement is to ensure the timely release of chemical constituents as well required for treatment, storage, and notification and response of emergency as in radioactive waste management. As disposal facilities (TSDFs) who manage personnel. An oral or written report part of the notification process, you other generator’s wastes and who regarding failure to meet the conditions must certify that personnel managing typically manage much larger volumes does not relieve you, the generator/ the hazardous portion of stored LLMW of waste. By limiting the exemption to licensee, of NRC requirements. You are appropriately trained. We are generators, we believe that the must also notify the NRC if the failure proposing that the basic personnel likelihood of significant human health triggers notification requirements under training requirements found at 40 CFR or environmental consequences of NRC regulations for the radioactive 265.16(a)(3) satisfy the training mismanagement will be minimal due to material. condition for chemical waste the amount of waste generated at these management. sites. Nevertheless, we request comment 4. What Records Must You Keep for the (f) You must: inventory the LLMW at on whether we should include in the Exemption? least annually; inspect the mixed waste conditional exemption for storage those You must keep records of your initial at least quarterly for compliance with mixed waste treatment facilities that notification, as well as your LLMW the conditions of this section; update manage wastes from other generators. your records of conditionally exempt Comments received on the ANPR inventories and inspections. Records LLMW at least quarterly; and keep generally did not agree with including must be kept for three years after the records of the findings of these such a TSDF in the entities eligible for stored waste is sent for treatment or inventories and inspections. You must a conditional exemption for storage of disposal, or in accordance with NRC maintain records for three years after the LLMW. (See docket for summary of requirements, whichever is longer. You waste is sent for disposal or in ANPR comments.) We are interested in must update your records regularly. At accordance with NRC requirements additional information regarding the a minimum, you must inventory the whichever is longer. An important part safety of commercial TSDFs that could waste annually, inspect the waste of assuring that you comply with the provide a basis for expanding the scope quarterly, and update records of conditions proposed in today’s rule is of the exemption to include off-site conditionally exempt LLMW quarterly. our requirement that you perform storage at commercial TSDFs. An important part of assuring that a regular inspections of the facilities generator is complying with the storing exempted waste, as well as 3. Whom Should You Notify if You Want to Claim an Exemption? conditions proposed in today’s rule is inventory the waste to prevent loss or requiring the generator to perform other mismanagement. Records of these To claim a conditional exemption for regular inspections of the units storing stored low-level mixed waste you, as the activities must be kept long enough to exempted waste, as well as inventorying generator, must certify that the facility assure us of consistent compliance with the waste to prevent loss or other exemption conditions. and waste meet all the proposed (g) You must maintain an accurate conditions in § 266.230 and must notify mismanagement. Records of these emergency contingency plan which you us (EPA or the Authorized State activities must be kept to assure us of develop and provide to all local Agency) of each storage unit where consistent compliance with exemption authorities who may have to respond to waste will be stored for which you conditions. an emergency. Your contingency plan claim a conditional exemption. Such 5. How Can Your Stored Waste Lose the must describe emergency response notification will enable us to know Exemption? arrangements with local authorities, which wastes and which storage units describe evacuation plans, list the are conditionally exempt. We propose Your stored waste will lose a names, addresses and telephone that you, the owner or operator of a conditional exemption if, after claiming numbers of all facility personnel facility generating low-level mixed a conditional exemption, you qualified to work with local authorities waste, notify us in writing either within subsequently fail to meet one or more of as emergency coordinators, and list 90 days of the effective date of the final the conditions. If your stored waste no emergency equipment. (The majority of rule in your State, or within 90 days of longer meets one or more of the mixed waste generators have a plan that when a storage unit is first used to store exemption conditions, your mixed describes many of these emergency LLMW for which you claim a waste may be fully regulated under conditional exemption. (See the list of response arrangements, see 40 CFR part RCRA Subtitle C as a hazardous waste conditions a generator must meet to 265, subpart D.) as described in § 266.235. (This We propose these conditions as the qualify for a conditional exemption for minimum necessary to ensure that stored LLMW.) This notification is self- consequence and its ramifications for LLMW is properly managed, so as to implementing, although we may use our mixed waste management are discussed avoid potential adverse impact on inspection and information collection under the notification, and human health or the environment. We authorities to verify whether you are implementation and enforcement believe that these conditions will meeting the conditions. sections of the proposed rulemaking.)

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6. Can Your Exemption be Reclaimed if radioactive component of LLMW. The position on proposed increases in You Fail to Meet a Condition? NRC has a ‘‘General Statement of Policy storage capacity for low-level wastes This proposed conditional exemption and Procedure for NRC Enforcement generated by normal reactor operation rulemaking envisions a self- Actions’’ (NUREG–1600) which states and maintenance and stated that the implementing process. The exemption the NRC’s policy regarding enforcement. safety of the proposed increase in is lost at the time of non-compliance. This policy provides significant capacity must be evaluated by the EPA needs to take no action to remove consequences for violating NRC or licensee under the provisions of 10 CFR the exemption. However, if your waste license requirements and takes into 50.59. The NRC also attached a loses the conditional exemption, you consideration the specific circumstances radiological safety guide to this letter. may reclaim your exemption if you of a particular case. For example, if a This guide was developed for the design return to compliance with all conditions nuclear power plant is found to have and operation of interim contingency violated the NRC license, or tie-down low-level waste storage facilities, and in § 266.230. You must send the RCRA conditions of the license (see definition stated that necessary design features and program agency a written notice that at the beginning of this preamble), the administrative controls would be you are reclaiming your exemption. nuclear power plant (and the dictated by such factors as the waste Your notice must do the following: • Explain the circumstances of the responsible person) may be subject to form, concentrations of radioactive failure which caused your waste to lose substantial civil and criminal penalties. material in individual waste containers, Based on these provisions, licensed a total amount of radioactivity to be the exemption; • Certify that your waste is in facilities have incentives to properly stored, and retrievability of waste. NRC compliance with all conditions as of the manage stored waste. also noted that this guidance document should be used in the design, date you reclaim the exemption; D. What Background Information Did construction and operation of storage • Demonstrate that the failure is not we Use for This Proposal? likely to recur because of specific steps facilities and that the NRC would judge To determine the protectiveness of the adequacy of 10 CFR Part 50.59 (list them) you have implemented in NRC management requirements for your LLMW-related compliance evaluations based on compliance with LLMW, we researched the LLW storage the guidance. (NRC also referenced IE activities; and provisions of NRC and material licenses, • Include any additional information Circular No. 80–19, dated August 22, reviewed NRC compliance data on you would like us to consider regarding 1980, as providing information on violations related to storage of LLW, and preparing 50.59 evaluations for changes your reclaim notice. compared the regulatory framework of If subsequently we find that a to radioactive waste treatment systems). EPA and NRC related to waste reclaimed conditional exemption is Though NRC regulations found in the management. Overall our comparison inappropriate because it is not Code of Federal Regulations concerning studies found that safeguards were in protective of human health or the the generation, storage, and treatment of place which would ensure the LLW are performance-based (for environment, then we may terminate protection of human health and the example, no releases/leaks), rather than the conditional exemption which was environment during storage of LLW and prescriptive as in RCRA (where types of reclaimed. LLMW. drums and waste management are C. How Will Implementation and Review of NRC License Requirements specified to prevent leaks), the NRC- Enforcement of the Conditional enforceable tie-down conditions found Exemption for Storage and Treatment of We researched NRC’s regulatory and in individual licenses based on our LLMW Take Place? licensing framework under which low- review provide adequate protection to level waste (LLW), and therefore LLMW, human health and the environment 1. Is This a Self-Implementing Rule? is stored by waste generators. We from exposure to hazardous wastes Yes, a conditional exemption is in examined provisions concerning the on- during storage as well as RCRA effect as of the date of the claim, and is site storage of LLW to assess whether regulatory requirements. A compilation lost automatically when the generator these requirements are protective of of the NRC documents that we reviewed fails to comply with the conditions. human health and the environment with can be found in the docket for today’s respect to potential releases of 2. How Will We Enforce the Proposed proposal. (See Ref. 3, EPA’s compliance hazardous waste constituents. We found history review.) A discussion of our Storage Exemption? that NRC and Agreement States regulate evaluation of NRC’s licensing We will consider non-compliant licensees through the issuance of framework and how it provides facilities to be subject to RCRA Subtitle performance-based regulations, protection of human health and the C from the time of noncompliance. regulatory guides, generic environment when compared with the Utilities or other LLMW generators that communications (Generic Letters and RCRA regulations is discussed in a later claim the conditional exemption, but Information Notices), and NUREGs. paragraph. fail to store and/or treat the LLMW in NRC uses these tools to guide licensees compliance with the provisions of the on how to meet the intent of the Research on Compliance Records of exemption, would no longer be exempt regulations. These documents work NRC and Agreement State Licensees from the applicable provisions of RCRA. together to enable the NRC and In addition to comparing NRC’s and Moreover, imminent and substantial Agreement States to ensure that nuclear our storage requirements, we researched endangerment provisions under § 7003 power facilities and other licensees are compliance records related to NRC of RCRA will continue to apply to operating in a safe manner. For radiation controls for nuclear power conditionally exempt mixed waste as a example, on November 10, 1981 NRC plants and other licensees, to determine safeguard in the unlikely event of a issued Generic Letter 81–38, ‘‘Storage of if there were storage-related releases or release which could pose a health or Low-Level Radioactive Wastes at Power mismanagement of LLW. To provide a environmental threat. Reactor Sites,’’ and enclosure, baseline for the comparison of NRC We are proposing the storage ‘‘Radiological Safety Guidance for LLW violations, we queried two of exemption because of the regulatory Onsite Contingency Storage Capacity.’’ EPA’s generator information framework in place governing low-level In this generic letter, NRC discussed its management systems—the Biennial

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Reporting System (BRS) and the unrelated to actual discharge of and NRC, regulation of mixed waste. Resource Conservation and Recovery hazardous waste from storage (e.g., unit Lastly, we asked LLMW generators to Information System (RCRIS)—to obtain closure requirements). Based on our provide us with additional information the number of RCRA violations. review, we do not believe these on the volumes, composition, and Using BRS data for 1995, 18,497 differences undermine protection of management practices (including facilities were identified as having human health and the environment, or procedures and associated costs of generated hazardous waste (including that the superimposition of RCRA treatment and storage) of their mixed small quantity generators). These specific standards significantly waste. ‘‘records’’ were merged with the increases protection. (See Ref. 4, EPA’s We received comments from 69 information from RCRIS and then sorted comparison of EPA and NRC storage commenters who represented academia, by RCRIS violation area codes. The requirements). Relevant NRC licensing TSDFs, contractors, federal agencies, violations were sorted by group criteria are in the docket for today’s medical institutions, industrial users, (generator, other, treatment, and rulemaking, and may also be obtained the nuclear power industry, the public, transporter) and by state. Based on this by contacting the NRC public document state governments, and trade groups/law process, we identified a total of 4,547 room at 202–634–3273 or accessing the firms. violations by a total of 1,352 facilities NRC web site (http://www.nrc.gov). Availability of Comment Summary (or 7.3% of the 18,497 facilities). Of the These criteria, while designed primarily 4,547 violations, 3,355 resulted from the to minimize radiation risk, also address Copies of all the public comments noncompliance with the generator risk posed by byproduct material in received by EPA, along with our requirements (manifesting, record general, including hazardous comment summary document are keeping, time-in-storage, reporting, etc.), constituents. Because of the unique available for viewing in either hard copy and of the 3,355 generator violations, nature of mixed wastes, migration of or electronic format by following the 142 involved mixed waste. hazardous constituents does not occur instructions presented in the beginning To review the NRC facility except in the presence of radionuclides. of this document. ( See Ref. 5, a compliance records, we reviewed a Therefore, activities performed by a summary of comments received on the number of enforcement reports for both licensee to safely store or address the ANPR.) A detailed response to NRC enforced and Agreement State release of the radioactive portion of the significant comments received on the enforced licensing programs. We did not mixed waste will also result in the safe ANPR and the proposal will be available review every licensee’s record. storage of the chemical components of in the docket for the final rulemaking. However, enough data were reviewed to the LLMW matrix. 1. What Comments Did We Receive demonstrate that the number of The applicability of NRC licensing Concerning a Conditional Exemption for violations reported (on a percentage standards to mixed waste in storage is Storage? basis) by NRC for both nuclear power the major reason for our belief that—in reactors (directly licensed by NRC) and specified circumstances—it is not We received a favorable response material licensees (generally licensed by necessary to also subject these wastes to from most commenters concerning a Agreement States) compares favorably RCRA storage regulation. conditional exemption for storage. The with the percentage of violations vast majority (87%) of the commenters reported by EPA. Fines, penalties, and Conclusions supported the concept of providing other consequences serve to deter These studies demonstrate that the regulatory flexibility to generators of violations. Based upon the compliance NRC regulatory and licensing program LLMW. Many of these commenters data, the industries’ record is good and will adequately control risks from made suggestions for either increasing mismanagement of stored mixed waste hazardous constituents as well as or decreasing the level of flexibility and is unlikely. We conclude that regulation radioactive material. There are the degree to which EPA should remain under Subtitle C is unlikely to safeguards in place based upon the NRC involved in the implementation and significantly improve that record. regulatory framework during the enforcement of any conditional For further information on applicable conditionally-exempt storage of LLMW. exemption. Other commenters (6%) NRC regulations refer to 10 CFR part 20 As stated by the court in the MMR provided suggestions for improving the subpart I. Information regarding NRC’s ‘‘where a waste might pose a hazard effectiveness of the proposed regulations, or guidance documents may only under limited management approaches, but remained silent as to be obtained by either contacting the scenarios, and other regulatory whether they supported the overall NRC Public Document Room, at 2120 L programs [the NRC] already address concept. The remaining commenters Street, NW, Lower Level, Washington, such scenarios, EPA is not required to (7%) opposed EPA’s concept for various D.C. 20037 (202–634–3273 or 800–397– classify a waste as hazardous waste reasons. 4209, Monday through Friday, 8:30 a.m. subject to regulation under Subtitle C.’’ We received 47 comments supporting to 4:15 p.m.) or by visiting NRC’s the concept of a conditional exemption E. What Was the Response of Internet web page at http://www.nrc.gov. for on-site storage of LLMW at nuclear Commenters to the ANPR? power plants. Several commenters, Comparison of Regulatory and On March 1, 1999, we published and primarily universities, suggested the Management Requirements of EPA & advance notice of proposed rulemaking conditional exemption should be NRC (64 FR 10063) for three reasons. First, extended to wastes stored ‘‘off-site.’’ We compared NRC documents used we wanted to introduce potential Thirty-four (72% of the supportive in license preparation with the strategies for making our regulations commenters) commenters believed that permitting framework established under more flexible for generators that treat the scope of the conditional storage RCRA. The technical design and and/or store LLMW on site. Second, we exemption should include all material operating standards of the NRC asked members of the regulated licensees that have either a NRC or licensing program meet or exceed RCRA community and general public for Agreement State license for LLMW. standards in virtually all respects, feedback on our strategies and whether Several commenters noted that non- though there were differences in certain we should consider other approaches reactor facilities generate most of the procedural requirements and in areas for providing relief from the dual, EPA mixed waste in the United States and

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 63476 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules are faced with the same compliance and if the radiation survey finds extremely purpose. (See ‘‘Summary of Comments management issues as reactor facilities. small concentrations of radioactive from March 1, 1999 ANPR’’ in docket.) We also received comments from six material in the waste. Of the 11 commenters who endorsed commenters that the conditional the proposal, two commenters agreed exemption for storage should not be 3. What Comments Did We Receive that requiring the owner/operator to extended to commercial TSDFs because Concerning Treatment of Waste in notify EPA within 90 days is a these facilities provide such services Storage? reasonable requirement. Another and have RCRA Subtitle C permits to do We received 36 comments regarding commenter pointed out that notification so. As such, they require no relief. the scope of the exemption. Of these was essential to help prevent confusion Commenters stated that: such facilities comments, 11 commenters supported regarding the regulatory status of a are in the business of managing LLMW the conditional exemption, 23 particular unit, particularly during an for compensation and should be supported the conditional exemption EPA inspection. The other nine regulated accordingly; and the duration with recommendations to expand the commenters contended that the of storage at such facilities may be exemption, and two specifically proposal establishing the notification driven by the time requirements under opposed the conditional exemption. requirement and the proposal requiring the facility’s RCRA permit and an One commenter believed that the the owner/operator to possess a valid exemption that would void those time treatment of mixed waste should be NRC and Agreement State license are frames could potentially affect the performed on-site in a tank, container, the only two conditions that are facility’s ability to control waste or containment building in accordance necessary to exempt facilities from inventory. with the generator’s NRC license RCRA regulations. Of the seven requirements. Other commenters commenters who suggested 2. What Were the Comments on Decay- believed that EPA should not limit the modifications to the proposal, four In-Storage? exemption to treatment in containers, believed that the notification We received 32 comments on the tanks, or containment buildings. One requirements should be kept as simple proposed conditional exemption for such commenter supported a treatment as possible. Decay-in-Storage (DIS). All commenters exemption for treatment in enclosed supported relief in this area. Two units with filtered exhaust systems. b. What were commenters views commenters opposed the DIS proposal Other commenters noted that simple concerning non-compliance and RCRA laid out in the ANPR. Both of these treatments, such as neutralization of enforcement? commenters, stated that they preferred a acids and bases, ion exchange, small Sixteen commenters addressed the strategy with more flexibility to manage scale distillation, and similar measures proposal dealing with violations and the wastes that (1) have longer half-lives performed by qualified and authorized related proposal to include a reporting than those prescribed by the NRC, (2) personnel should be included without requirement as a condition of the are difficult to dispose of, (3) do not yet restriction. Another commenter noted exemption. One commenter endorsed meet NRC’s criteria of ‘‘cannot be that the definition of ‘‘tank or the overall proposal, while seven distinguished from background’’ after 10 container’’ should include, but not be commenters either sought clarifications half lives, and (4) begin decay at limited to, small-volume containers about the proposal or suggested different times. such as carboys, liquid scintillation modifications to it. Eight commenters We received 23 comments on when vials, and other commonly-used opposed the proposal. LLMW would reenter the RCRA system. containers. Of the seven commenters who sought Seventeen commenters supported the clarifications about the proposal, four strategy to bring waste back into the 4. What Comments Did We Receive commenters said we should consider RCRA system once the LLMW had Concerning Possible Conditions for a revocation of the conditional exemption either ‘‘decayed’’, ‘‘decayed to Storage Exemption? only for serious or repeat violations, and background levels’’, or ‘‘decayed to We received numerous comments especially in instances where insignificant levels.’’ One commenter regarding the possible conditions that environmental and health and safety noted that often non-detectable must be met to qualify for an exemption. issues were involved. Of the eight background levels are not specifically The most significant conditions commenters who opposed the proposal, established by the NRC and vary from discussed by the commenters involved six believed that notifications should be state to state, so background levels at the notification and identification of limited to events that are reportable one facility may be different than units, and noncompliance. We discuss under the conditions of the applicable background levels at another facility. these categories of comments below. NRC license. This commenter also stated that since AEA low-level waste requirements a. What did commenters say concerning c. What did commenters say about protect the waste after it decays, as well notification and identification of units? notification of violations & reporting during the decay process, there should We received comments from 22 requirements? be no urgency to revert back to RCRA commenters regarding the proposal to Two commenters supported reporting management. A different commenter establish notification requirements for of noncompliance with the conditions echoed the same concern that often LLMW facilities applying for of the exemption. One commenter ‘‘indistinguishable from background’’ is conditional exemption from RCRA agreed that any releases with potential not the same as ‘‘no radioactive material hazardous waste regulations. Eleven for significant environmental impact in waste’’ which is a requirement prior commenters endorsed the proposal. should be reported to EPA as is to acceptance at many commercial Another seven commenters currently required for radionuclides and waste treatment facilities. This recommended modifications to the other hazardous materials. One commenter added that EPA should proposal. Four commenters opposed the commenter agreed with the proposed make sure that once the waste decays to proposal, maintaining that the Agency requirement for oral reporting within 24 NRC license levels (indistinguishable identification number in RCRA or hours for violations of the NRC license from background) it must be accepted facility designation in existing NRC that results in endangerment to human by commercial treatment facilities, even licensing requirements served this health and the environment, noting that

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules 63477 this provision is consistent with existing wastes that can be treated to meet LDR according to the requirements for low NRC requirements. However, this standards to disposal. level radioactive waste would be commenter did not agree with the The conditions for the transportation adequate. In addition, the exempted requirement for a written report within and disposal exemption are listed in waste must not be in a liquid form, as 5 days, noting that the standard NRC § 266.315 which includes the following: specified by NRC or Agreement State requirement for submitting a written • Meet LDR treatment standards in regulations for the disposal of LLW. report to NRC is 30 days. The accordance with one of the following: Therefore, if spilled during commenter recommends that the • Treatment at a RCRA-permitted transportation, the exempted waste reporting requirements should not be mixed waste treatment facility; could be contained relatively easily. As more stringent than NRC requirements. • Treatment on site under the a result, the likelihood of exempted provisions of the conditional exemption waste contaminating the environment VI. Transportation and Disposal from the RCRA storage and treatment and endangering human health during Conditional Exemption For Mixed requirements proposed today for NRC or transportation would be low. Waste and Eligible NARM Agreement State licensees; or We also believe that LLMW, or Regarding transportation and • Without treatment, if the ‘‘as eligible NARM, meeting LDR treatment disposal, we are proposing regulatory generated’’ hazardous waste mixed with standards poses insignificant risks when flexibility related to the manifest, LLW or eligible NARM meets the LDR disposed of in LLRWDFs according to transportation, and disposal of treated treatment requirements. the requirements set by NRC or LLMW or eligible NARM. In the • Send a notification package to the Agreement State according to 10 CFR sections below, we will discuss the following agencies and receive written 61. Our technical analysis showed that following topics: the regulatory relief we confirmation that they have received the NRC or Agreement State requires are proposing; the applicability of the package: adequate controls to protect against proposal; the point at which the —The RCRA program agency with radiation hazards at LLRWDFs. We exemption would apply; jurisdiction over your MW; believe that these would also implementation and enforcement —The RCRA program agency in the protect against the chemical hazards of aspects of the proposal; the rationale State where the NRC or Agreement LLMW in the absence of RCRA disposal behind the requirements that we are State-licensed low level radioactive requirements, so long as the LLMW, or proposing; the technical analysis we waste disposal facility (LLRWDF) eligible NARM, meets the LDR have conducted on the proposed option; receiving your waste is located; and treatment standards and is disposed at and stakeholder issues. —NRC or Agreement State Agency a LLRWDFs licensed by NRC or an regulating/licensing the LLRWDF Agreement State. (See discussion in A. What Regulatory Relief are we receiving your waste for disposal. VI. G.). Providing for Transportation and • Disposal? Meet NRC 10 CFR 71.5 or B. Applicability of the Proposal Agreement State transportation We are proposing to conditionally requirements, and NRC 10 CFR 20.2006 1. To What Types of Waste Does This exempt LLMW or eligible NARM from or Agreement State manifest Rule Apply? RCRA Subtitle C hazardous waste requirements even if you self-regulate The conditional exemption for manifest, transportation, and disposal under the authority of Atomic Energy disposal applies only to LLMW (a RCRA requirements if all of the proposed Act. hazardous waste as defined in 40 CFR conditions are met. To be eligible for the • Ensure that the exempted waste part 261 mixed with a low level exemption, the RCRA Subtitle C (meeting LDR treatment standards) is radioactive waste as defined in 10 CFR exempted waste must be managed as a disposed at a LLRWDF pursuant to NRC 61.2) or eligible NARM (as defined in low level radioactive waste (LLW) or or Agreement State regulations in this proposal—a RCRA hazardous waste NARM waste in accordance with NRC, accordance to 10 CFR 61. (We are mixed with a NARM waste which meets or Agreement State regulations. This requiring that the RCRA-exempt LLMW, the acceptance criteria of a LLRWDF proposal is based on our determination or eligible NARM, be disposed in licensed by NRC or an Agreement State). that LLMW or eligible NARM mixed containers that meet the waste The exemption does not apply to a waste, if managed pursuant to the NRC packaging, waste form and waste RCRA hazardous waste mixed with high or Agreement State regulations for integrity requirements of NRC.) level radioactive waste, or transuranic manifest, transportation and disposal of • Retain all records related to the waste. LLW, would provide sufficient conditional exemption (including the We are proposing to include eligible protection of human health and the necessary LDR records) as specified in NARM waste in the conditional environment during the manifest, § 266.365. exemption at the request of a state transportation and disposal of a treated Exempted waste would continue to be agency regulating the radioactive RCRA hazardous waste (See section VI. regulated by NRC or Agreement State material. (See Ref.11.) NARM waste is G. for details). during subsequent transportation and not regulated by NRC. Neither is NARM With today’s action, we anticipate disposal. We believe NRC or Agreement currently regulated under RCRA that MW generators and treaters would State regulations for the manifest, Subtitle C authority. In practice, NARM have considerably more disposal transportation, and disposal provide waste has been regulated by the States capacity available to them. Currently, adequate protection for human health under State law, or by DOE under DOE there is only one commercial mixed and the environment from the risks Orders. Most of the states are currently waste disposal facility while there are posed by LLMW treated to LDR regulating NARM waste under their three LLRWDFs licensed by the treatment standards. For transportation, radiation control program. NARM waste Agreement States. Consequently, as discussed in VI.E.3., treating waste to mixed with a RCRA hazardous waste is commercial MW generators, with an LDR treatment standard levels reduces managed under both RCRA and state estimated annual waste generation rate toxicity and mobility of hazardous radiation control programs in most of approximately 140,000 cubic feet of constituents remaining in the waste. states. Because of this dual regulation, LLMW, would be able to move those Thus, transportation of the treated waste we are proposing that the exemption

VerDate 29-OCT-99 18:38 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm03 PsN: 19NOP3 63478 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules also apply to eligible NARM waste. generator has met all pre-transport exclusions, such as the LDR program, However, we are requiring that the requirements under § 266.315. where generators and treaters can certify NARM waste meet the acceptance Specifically, the point of exemption that their hazardous waste meets LDR criteria of a LLRWDF licensed by NRC occurs when the waste is placed on the treatment standards and qualifies for or an Agreement State in accordance transportation vehicle bound for land disposal, without prior with 10 CFR 61. This restriction is disposal at an NRC or Agreement State- governmental approval. Furthermore, it necessary because our technical analysis licensed LLRWDF. A shipment ‘‘bound is also consistent with provisions is based in part on licensing for disposal’’ includes any shipment discussed in the HWIR99 notice related requirements under 10 CFR 61. We are originating from the generator that is to the concentration based exemption seeking comments and supporting transported by one or more transporters. and exclusions from the definition of information concerning the applicability However, the shipment must not go to solid waste found in 40 CFR 261.4(b). of this transportation and disposal any other facility en route to the We are proposing self-implementation proposal to eligible NARM waste. designated LLRWDF, other than to a for the transportation and disposal conditional exemption because we 2. Who Could Benefit From this transfer facility meeting the requirements of 40 CFR 263.12. The believe that there is no substantial Proposal, and What is the Profile of advantage to be gained from requiring Their Waste? exempted waste would not have to be managed according to RCRA Subtitle C approval for an exemption. All generators of LLMW or NARM requirements during transportation and Furthermore, the waste exiting RCRA waste can potentially benefit from this final disposal at the LLRWDF. We are requirements would continue to be proposal, if their MW meets all the proposing the point of exemption as managed under an alternate regulatory specified conditions. Some examples of described above for the following program (NRC or Agreement State these generators are listed at the reasons: regulations) that would provide beginning of the preamble in Table 1 • The exempted waste will continue comparable protection for human health under ‘‘Who is Eligible for This Rule’’. to be managed in accordance to the AEA and the environment. This would also We estimate that this rulemaking could because of the radioactive component of be true for generators like DOE who self- apply to the LLMW generated and the waste. regulate under the AEA, because their stored by over 1,000 industrial facilities • The risks posed by exempted waste waste would also be disposed at a and laboratories in the U.S. when transported and manifested are LLRWDF regulated by NRC or Approximately 108,000 cubic feet of adequately addressed by the NRC Agreement State. Therefore, we believe LLMW is generated annually by these transportation and manifest that under the proposed self- facilities, and an additional 4,000 cubic requirements. implementing method, the waste will feet of legacy waste is currently in long- • The risks posed by the exempted continue to be properly managed while term storage without options for waste when disposed of in a LLRWDF the regulatory burden is reduced. In treatment and/or disposal. In addition, are adequately addressed by the addition, self-implementation has the DOE generates approximately 400,000 requirements set by NRC or an following advantages: • cubic feet annually, with 4.4 million Agreement State in accordance with 10 The exemption can take effect more cubic feet of legacy waste in storage. CFR 61. quickly since approval from the RCRA (See Ref.14 and 17 for details on waste • program agency is not necessary; The exemption would reduce the • volumes and cost-benefit analysis.) generator’s requirements to comply with It reduces the generator’s burden in According to the available claiming the exemption; duplicative regulations during • information, DOE operations currently transportation and disposal, in that NRC It does not impose burden, or time face mixed waste disposal capacity regulations have been shown to be as restrictions on the RCRA program issues similar to those experienced by protective as RCRA regulations. agency to review the notification the commercial sector. This proposal In conclusion, we set the point of package while maintaining jurisdiction; would only provide partial relief for exemption as proposed primarily and However, self-implementation does DOE due to concerns expressed by the because we believe that transportation, not mean that the RCRA program agency States regarding disposal of the RCRA- tracking, and disposal of waste meeting does not have a role in overseeing the exempted LLMW at DOE’s LLRWDFs the LDR treatment standards can be conditional exemption. The RCRA (see VI. H). However, DOE has been safely managed according to similar program agency will be notified of the working with the States to establish regulations of NRC. The end result is exemption, and will have access to all additional disposal capacity for its that regulatory burden can be reduced documentation related to a claim (See LLMW. because NRC regulations provide VI.E.2 of this preamble). 3. What Other Regulatory Relief comparable protection. While the RCRA regulatory agencies Provisions May Apply? D. Implementation and Enforcement may review a generator’s exemption claim, the lack of such a review would Generators of LLMW or NARM that is 1. How Will the Transportation and not eligible for the proposed conditional not be an indication of their approval of Disposal Conditional Exemption Be the exemption claim. That is, the exemption for transportation and Implemented? disposal may petition EPA to get their confirmation that the RCRA program specific waste stream delisted from We are proposing that the agency has received the exemption RCRA Subtitle C under the RCRA transportation and disposal conditional notification package would not imply Delisting Program (Contact the EPA exemption be self-implementing. No that they have reviewed or approved it. Regional delisting coordinator for prior governmental approval or review Therefore, the exempted waste will still details.) of documentation is required before a lose its exemption whenever it is generator’s qualified waste exits RCRA discovered that any of the required C. What is the Point of Exemption? Subtitle C manifest, transportation, and conditions is not met. We are proposing that LLMW or disposal requirements. This basic The RCRA program agency may eligible NARM be exempted from RCRA framework is consistent with most other conduct inspections and review the Subtitle C requirements once the hazardous waste exemptions and records to determine whether the

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Why Are we Requiring LDR • in monitoring and enforcement efforts, Demonstrate that the failure is not Treatment? likely to recur because of specific steps or file a citizen suit under RCRA section The hazardous constituents in waste (list them) you have implemented in 7002 against a generator for failure to eligible for the exemption must first be your LLMW-related compliance comply with the conditions for treated to meet the RCRA LDR treatment activities; and exemption. standards specified in 40 CFR 268.40— • Include any additional information 2. What Happens if Your Waste No 268.48. The treated waste also must you would like us to consider regarding Longer Meets the Conditions of the meet the definition of non-wastewater Transportation and Disposal your reclaim notice. as defined in 40 CFR 268.2(d). We Conditional Exemption? If subsequently we find that a believe that LLMW or eligible NARM reclaimed conditional exemption is waste should meet LDR treatment When any exemption condition is not inappropriate because it is not standards, and be managed in met, your waste loses its exemption protective of human health or the accordance with NRC or Agreement status and may be fully regulated under environment, then we may terminate State requirements for LLW to ensure RCRA subtitle C as a hazardous waste. the conditional exemption which was protection of human health and the You could also be subject to reclaimed. environment. enforcement actions which could result Like any hazardous waste destined for Alternatively, we could specify a in fines and penalties. RCRA subtitle C land disposal, LLMW must meet LDR sections 3008 gives us the authority to waiting period for reclaiming a disposal treatment standards prior to its disposal commence enforcement actions and exemption. The waiting period would at a mixed waste disposal facility (with assess fines and penalties. Examples of allow the regulatory agency time to a RCRA hazardous waste disposal activities that could lead to an confirm that the violation has been permit and an NRC or Agreement State enforcement action against you include corrected, and is not likely to recur. license for radioactive waste disposal). misclaiming of a conditional exemption, This may be prudent when a Compliance with the LDR treatment failure to meet the conditions of the conditional exemption has been lost. standards ensures that the toxicity and exemption, or providing erroneous Generally, it takes time to schedule and mobility of the hazardous waste information to the disposal facility. conduct confirmation inspections. Self- constituents is reduced. Our LLMW implementation of your reclaimed transportation and disposal conditional 3. Are There any Additional exemption may not allow the RCRA Requirements You Must Meet? exemption is based upon our program agency time to confirm that an determination that the LLMW, or Yes, the additional requirements of infraction has been corrected. As a eligible NARM waste, which meets the the transportation and disposal result, waste could be inappropriately LDR treatment standards (thereby conditional exemption are listed under shipped off-site for disposal. Therefore, substantially reducing the toxicity and the proposed sections § 266.325(b) and we are seeking comment on whether to mobility of the hazardous constituents § 266.330(b). Under these sections, you provide for a 90-day waiting period in the waste) is rendered are required to notify the LLRWDF of before your reclaimed exemption for ‘‘nonhazardous’’ when disposed in the exempt status of your waste before disposal is final. accordance with NRC or Agreement you ship it to the facility for disposal 5. What Can a LLRWDF do to Reduce State regulations. (see VI.E.2.d). These requirements are the Potential Applicability of RCRA In the Hazardous and Solid Waste obligations that you are required to meet Authorities? Amendments (HSWA) of 1984, Congress at all times. While your exemption prohibited land disposal of hazardous status would not change if a As discussed in VI.G. we believe that waste unless the waste undergoes requirement was violated, you could be disposal of LLMW, treated to LDR treatment to minimize threats to human subject to RCRA enforcement actions standards, in a designated LLRWDF is health and the environment. The statute which could result in fines and protective of human health and the requires that treatment standards penalties. environment, and we do not expect the established by EPA will substantially 4. Can Your Exemption be Reclaimed if exempted waste to pose a risk once diminish the toxicity or mobility of You Fail to Meet a Condition? properly disposed. We believe a hazardous waste such that short-and LLRWDF can greatly reduce the long-term threats to human health and This proposed conditional exemption potential applicability of RCRA the environment are minimized. See rulemaking envisions a self- authorities by taking steps to ensure that RCRA section 3004(m) 42 U.S.C. implementing process. The exemption the exempted waste has achieved the 6912(a), 6921, and 6924. Over the last is lost at the time of non-compliance. required LDR treatment standards. 15 years, EPA has responded to the EPA needs to take no action to remove During our discussion with the statutory mandate by developing the exemption. However, if your waste LLRWDFs (Ref.9), they indicated that through a series of rulemakings loses the conditional exemption, you they would consider conducting treatment standards for hazardous waste may reclaim your exemption if you independent waste analysis to ensure based on the best demonstrated return to compliance with all conditions that the waste accepted do meet the LDR available technology (BDAT) for treating in § 266.315. You must send the RCRA treatment standards. Additionally, we the waste. With the promulgation of the program agency a written notice that would encourage open communication most recent ‘‘Phase IV’’ Rule (63 FR you are reclaiming your exemption. between the waste generators and the 28556, May 19, 1998), EPA has Your notice must do the following: LLRWDFs regarding waste information. promulgated treatment standards for

VerDate 29-OCT-99 18:38 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm03 PsN: 19NOP3 63480 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules most hazardous wastes. This effort will facility. However, if a characteristic MW debris can then be disposed on land. continue as we promulgate new was treated but not decharacterized, The three major types of treatment hazardous waste listings or otherwise then it continues to be a MW. You methods under the LDR alternative identify new hazardous wastes. would then need to claim the MW treatment standards for debris consist of Furthermore, hazardous wastes (other transportation and disposal exemption destruction, extraction, and than wastewaters) meeting the LDR and meet the associated conditions for immobilization. Under LDR regulation, treatment standards, with a few this resulting MW in order to dispose of any hazardous debris treated by the exceptions, must be disposed of at a it in a LLRWDF. In addition, the destruction and extraction methods are RCRA Subtitle C hazardous waste underlying hazardous constituents considered non-hazardous waste. As disposal facility. However, (UHCs) must always be identified and such, a MW debris meeting the characteristic wastes that are rendered treated to meet the Universal Treatment requirements for extraction and non-characteristic may be disposed of as Standards (UTS) levels specified in 40 destruction treatment methods can be non-hazardous solid waste provided CFR 268.48. managed as radioactive waste alone. that they meet LDR treatment standards, Under current regulations, a waste Therefore, you would not need to claim including standards for underlying exhibiting the characteristics of the transportation and disposal hazardous constituents (§ 268.2(i)). ignitability (D001), corrosivity (D002), exemption, nor meet the associated Wastes that have been delisted reactivity (D003), or toxicity (D004– conditions in order to dispose this (§ 260.22) may also be disposed of as D043) must be treated to the applicable resulting non-RCRA hazardous, solid waste. LDR treatment standards specified for radioactive waste debris in a LLRWDF. Please note: In the following sections the those waste codes in 40 CFR 268.40 However, for a MW debris treated via discussion on existing LDR treatment before it can be disposed on land. If the immobilization treatment methods, requirements are meant to provide reference meeting the LDR treatment standards the resulting waste remains a RCRA information for the reader. We are not taking also enabled the treated waste to hazardous waste. Therefore, you would comment on any existing LDR requirements. become decharacterized, then the need to claim the exemption and meet In the following sections of VI.E.1.a, resulting waste can be disposed as non- the associated conditions in order for we discuss different types of RCRA hazardous waste. However, if meeting you to dispose the immobilized MW hazardous wastes and summarize the the LDR treatment standards does not debris in a LLRWDF. Alternatively, a existing applicable RCRA LDR treatment enable the treated waste to become listed hazardous debris treated through standards for them. decharacterized, then the resulting the immobilization technology becomes waste must be disposed of as hazardous a non-hazardous waste under a. What are the existing RCRA LDR waste. (This is the case for some § 261.3(f)(2) if the Regional treatment requirements for various types characteristic wastes exhibiting the Administrator determines that it is no of LLMW? characteristic of toxicity, such as longer hazardous, after a ‘‘contained-in’’ In the following discussion, we Selenium.) In order for a characteristic determination is made. Characteristic provide information regarding existing waste exhibiting toxicity to be debris treated by immobilization RCRA LDR treatment requirements for decharacterized, the toxic constituent technology can also become a non- various types of waste. A table must be treated to below the ‘‘Maximum hazardous waste if you, the generator, identifying the types of RCRA Concentration of Contaminants For The can demonstrate that the immobilized hazardous waste commonly found in Toxicity Characteristic’’ listed under debris is no longer hazardous. If your LLMW is provided as background § 261.24. On the other hand, the LDR treated debris is no longer hazardous, material in the RCRA Docket (Ref. 10) treatment standards are technology then you would not need to claim a based and therefore do not always conditional exemption in order to i. LLMW that is a listed hazardous waste achieve the levels listed in § 261.24. dispose the waste at a LLRWDF. Also, (F, K, P, and U waste) Therefore, a decharacterized LLMW mixed waste debris treated to meet the LLMW that contains, or is mixed with becomes a LLW and does not need to treatment standards found in § 268.40 or derived from, a hazardous waste claim the MW transportation and can be disposed of at LLRWDFs if the listed in 40 CFR Part 261, subpart D has disposal exemption. On the other hand, proposed conditions were met. to be treated to meet the LDR treatment a treated but not decharacterized LLMW iv. Hazardous soil contaminated with standards specified for these waste continues to be a LLMW and would radioactivity streams in 40 CFR 268.40 before it is have to claim the exemption in order for eligible for the transportation and it to be disposed in LLRWDF. Under current LDR treatment disposal exemption. Based on the In addition, the UHCs must also be requirements, soils contaminated with available data, the listed hazardous identified and treated to meet the UTS RCRA hazardous waste must be treated waste codes most commonly associated levels specified in 40 CFR 268.48. In to meet the universal treatment with LLMW are F001—F005, the codes 1998, EPA promulgated the LDR Phase standards at § 268.48 before disposal in for spent solvent wastes. IV Rule, revising UTS for a RCRA hazardous waste . In nonwastewater forms of 12 metals (63 addition, we also promulgated ii. LLMW exhibiting hazardous FR 28559–28572). The rule also alternative treatment standards for soils characteristics (D001–D043) required treatment of UHCs reasonably under the LDR Phase IV Rule (63 FR Currently, a characteristic LLMW expected to be present in the toxicity 28602–28622, May 26, 1998) to provide becomes a low-level radioactive waste characteristic (TC) waste to UTS levels. flexibility for remediation activities. The and is managed as such once it has been alternative treatment standards for soils decharacterized. Under this situation, a iii. Mixed waste debris can be found in § 268.49. generator would not need to claim the Debris, as defined in 40 CFR 268.2(g), Contaminated soils treated to meet the transportation and disposal exemption, contaminated with RCRA hazardous RCRA LDR treatment standards must be nor meet the associated conditions in waste and radioactive debris can be disposed in a RCRA hazardous waste order to dispose the resulting non-RCRA treated according to an alternative LDR disposal facility, unless they are found hazardous, low level radioactive waste treatment standards under § 268.45 (57 to no longer be a hazardous waste. in a low level radioactive waste disposal FR 37221, Aug. 8, 1992). The treated When the treated waste continues to be

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules 63481 a hazardous waste, you would need to vi. LDR variance from a treatment understanding of the nature and volume claim the exemption proposed today in standard of your waste. The certification that order to dispose the treated soils at a Today’s proposal does not change the your waste meets the LDR treatment LLRWDF. However, under current LDR provisions for a variance from a standard provides your RCRA program regulations, the treated soils can be treatment standard at § 268.44. You may agency the assurance that one of the disposed in a RCRA non-hazardous continue to petition for a variance from critical conditions of the exemption has waste disposal facility if it is the LDR treatment standards as been met. Information regarding the determined that the treated soils are no discussed under § 268.44 if the disposal facility allows your RCRA longer a RCRA hazardous waste. Under established LDR treatment standards is program agency to confirm such this situation, the resulting soils become not appropriate for your specific waste. disposal. This information would allow a radioactive waste, and you do not the agency to document, verify, and need to claim the exemption proposed b. How do you determine whether your track your exemption compliance status. here today in order to dispose it in a hazardous and radioactive waste meets They can plan inspections and review LLRWDF. the LDR treatment levels? exemption-related records to ensure that The alternative treatment standards You must comply with the same you are following all the conditions of allow contaminated soil to be treated to requirements as those required under the transportation and disposal remove 90% of the hazardous the current LDR program to determine exemption. They can also consider the constituent concentrations, but not whether your waste meets the LDR need for possible enforcement actions if below 10 times the UTS level for those treatment standards prior to disposal. an exemption is improperly claimed. constituents. In the LDR Phase IV Rule, (See the LDR waste determination and However, your RCRA program agency we determined that the technology- testing requirements at sections 268.7(a) would be under no obligation to review based ‘‘90 percent reduction capped by and 268.7(b) for hazardous waste the notification notice or approve the 10 x UTS’’ treatment standard for generators and treatment facilities, exemption claim. contaminated soil is sufficiently respectively. b. Why must you also notify both the stringent to satisfy the core requirement RCRA program agency and NRC or of RCRA Section 3004 (m) that short and c. What can you do to reduce radiation hazards when testing your hazardous Agreement State in the State where your long-term threats to human health and waste will be disposed? the environment are reduced, taking and radioactive waste to show We require you to notify the RCRA into account the need to encourage compliance with LDR treatment levels? program agency and NRC or Agreement remediation of contaminated soil which Recognizing the public’s concern over State at the state where the NRC or involves excavation and treatment of the potential radiation exposure from mixed Agreement State-licensed LLRWDF is soil. In the case of this exemption, soils waste testing (for example, as noted in located so that they are properly placed in a NRC-regulated LLRWDF public comments on the HWIR95 informed and can take prompt and must be containerized in addition to proposal), we developed, in close informed action, when necessary. coordination with NRC, a mixed waste complying with the applicable LDR Further, we believe that knowledge of testing guidance titled ‘‘Joint NRC/EPA treatment standards. We request the exemption claims should enable the Guidance on Testing Requirements for comment on whether, for any reason, regulatory agencies, in the state where Mixed Radioactive and Hazardous this conditional exemption should the LLRWDF resides, to take a more Waste’’ to address this concern. apply only to hazardous soils proactive role in protecting their [Interested readers can get a copy of the contaminated with radioactive waste interests. The state regulators expressed and treated to LDR standards derived guidance by accessing EPA’s mixed concerns that disposal facilities might from the original waste codes, rather waste web site (www.epa.gov/radiation/ receive shipments that do not meet the than to soils treated to alternative soil mixed-waste/).] The primary purpose of transportation and disposal exemption treatment standards. this guidance document is to help NRC conditions (Ref. 11). v. Hazardous and radioactive waste or Agreement State licensees and others In the event that they need to managed in lab packs in characterizing their mixed waste in investigate any problem at the disposal As an alternative to the otherwise accordance with RCRA regulations facility in their State, knowledge of the applicable LDR treatment standards, lab while keeping radiation exposure as low exemption would allow them to packs containing hazardous and as reasonably achievable (ALARA). The communicate with the appropriate radioactive wastes are eligible for the guidance emphasizes flexibility in the regulatory agencies and obtain exemption provided the following RCRA testing requirements so that the additional information necessary for requirements are met: ALARA concept can be incorporated. their investigation. Knowledge of the • The lab packs comply with the 2. Why is Notification a Condition for exemption would also facilitate and applicable provisions of 40 CFR 264.316 the Exemption? expedite communication among and 40 CFR 265.316; regulatory agencies in different states • The lab pack does not contain any a. Why must you notify the appropriate and under different regulatory of the wastes listed in Appendix IV to RCRA program agency of your claim of authorities. LLRWDFs are licensed and part 268; the exemption? regulated by NRC or Agreement State, • The lab packs are incinerated in The notification package, referred to which in some instances can be a accordance with the requirements of 40 in § 266.325-§ 266.330 of this proposed separate regulatory agency from the CFR part 264, subpart O or 40 CFR part rule, lets your RCRA program agency RCRA agency within a state. Therefore, 265, subpart O; and know about your exemption claim. The we are proposing that notification • Any incinerator residues from lab notification is especially important packages be sent to NRC or Agreement packs containing D004, D005, D006, because as proposed, the regulation State and the RCRA program agency in D007, D008, D010, and D011 are treated would be self-implementing. The the state where the RCRA-exempted in compliance with the applicable LDR information contained in the waste is to be disposed. We believe this treatment standards specified for such notification package would provide condition will not create much wastes. your RCRA program agency a general additional burden for you because you

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 63482 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules already have to prepare the same in achieving regulatory relief for the destroyed and the metals stabilized. The notification package for their RCRA disposal of hazardous and radioactively LDR treatment standards compliant program agency. This additional contaminated waste under this waste would also no long exhibit any of notification would only require you to proposal. One major input that we the ignitible, reactive, and corrosive make and send copies of the same paper received from the owners/operators of characteristics. Thus, we believe that work that has already been created. LLRWDFs during our meeting with the packaging and transportation Therefore, we believe this notification them in December 1998 (Ref. 9) is that requirements for a radioactive waste condition can be accomplished with they want to screen out potentially would be adequately protective for the minimum cost and burden while problematic shipments by testing for transportation of a waste meeting LDR providing substantial benefit. chemical constituents. They also want treatment standards. The Department of Transportation (DOT) supports this c. Are you required to include the LDR to ensure that the exempted wastes meet assessment. NRC or Agreement State’s test results and other related material in the LDR treatment standards and other transportation regulations for low level your notification package? conditions for exemption proposed today. The notification procedure would radioactive waste incorporate the DOT No, we believe it is not necessary to allow them to protect their facilities requirements for transporting submit detailed LDR compliance data, from non-compliant wastes. radioactive material. The DOT’s such as the waste analysis plan and Secondly, we are requiring that the Hazardous Material Regulations (HMR; testing data, in your notification generator record the shipment number, 49 CFR 100–199) contain requirements package. The purpose of the notice is from block number 5 of NRC’s Uniform for the transportation of hazardous simply to inform the regulatory agencies Low-Level Radioactive Waste Manifest materials. This regulation include of the exemption claim and provide a Form 540, of a radioactive waste packaging, labeling, documentation, general description of the claim (for shipment that contains RCRA-exempted placarding, and other requirements. The example, your identity, description and mixed waste on the notification letter to HMR contain criteria for 9 hazardous volume of the waste, and disposal the LLRWDF receiving the RCRA- classes, some of which are subdivided location). In addition, because this rule exempted waste. We want to provide into divisions. Hazardous materials is self-implementing, we do not see the the LLRWDFs and any regulatory subject to the HMR, must at least be advantage of including detailed agency a method of identifying, if packaged in strong tight containers that information such as the waste analysis necessary, a batch of LLW shipment that can survive transportation. plan and laboratory testing results in the contained or contains RCRA-exempted Performance-oriented packaging is notification package. This is because the waste. After meeting LDR treatment usually required for most hazardous implementing authority is not required standards, a RCRA-exempted mixed materials. In our discussion with the to make a formal decision regarding the waste would be managed as a DOT, they agree that when the RCRA exemption under the self-implementing radioactive waste. Therefore, without component has been treated thus scheme. The inclusion of detailed LDR proper documentation, it would not be removing the flammable, corrosive, and compliance data would unnecessarily possible to identify, when necessary, reactive properties, then the radioactive create additional burden and increase whether a given radioactive waste waste component would be the primary the cost of the regulation. transported to a LLRWDF contained the hazard present and the waste would be This aspect of the proposal is RCRA-exempted waste. We believe this shipped accordingly. Therefore, we consistent with the existing RCRA identification is necessary to facilitate believe the transportation of the LDR program. The LDR program does not any actions regarding the RCRA- treatment standards compliant waste require generators to submit detailed exempted waste at LLRWDF. according to the requirements for waste testing information to the States. radioactive material is appropriate. Rather, these types of information must 3. What Are the Conditions for We also believe the NRC or be kept at the generator’s site for at least Manifesting and Transporting the Agreement State’s manifest three years. Under the transportation Exempted Waste? requirements for low level waste satisfy and disposal conditional exemption, the a. Why is it appropriate to manifest and the tracking needs for the RCRA LDR compliance testing data would also transport the RCRA-exempted mixed exempted waste and ensure the arrival be kept on site for three years from the waste only according to NRC, or an of the exempted waste at the time the exemption is claimed. Agreement State’s, manifest and appropriate LLRWDF. Even though the Therefore, the RCRA program agency transportation requirements? RCRA exempted waste is not required to would always have access to the be manifested as RCRA hazardous detailed information regarding LDR We are proposing that only NRC or waste, a mechanism is still needed to compliance. Agreement State’s manifest and track the movement of this waste. This transportation requirements be followed is because disposal of the RCRA d. Why do you have to notify the for the shipment of the exempted waste. exempted waste in NRC or Agreement LLRWDF receiving your exempted waste We are proposing to conditionally State-licensed LLRWDF is a critical of the exempted status of your waste? exempt LLMW or eligible NARM which condition of the exemption. We must be We are requiring you to notify the meets the LDR treatment standards from able to track this waste from the LLRWDF for two reasons. The first RCRA hazardous waste manifest and generator to NRC or Agreement State- reason is to let the LLRWDF know that transportation requirements because we licensed LLRWDF. the shipment contains the exempted believe transportation of this waste Since the exempted waste remains waste so that they can take actions that according to the requirements for subject to NRC or Agreement State’s they deemed necessary to protect their transporting a low level radioactive manifest regulations, we conducted a facilities. The second reason is to allow waste is protective of human health and detailed comparison between the RCRA future identification of a shipment that the environment. and NRC’s manifest regulations for the had contained an RCRA-exempted The waste first must be treated to purpose of tracking the movement of the waste. meet LDR treatment standards before it RCRA exempted waste. (Ref. 12) We Clearly, a LLRWDF’s willingness to is exempted. During treatment most of determined that NRC’s waste tracking receive the exempted waste is essential the organics in the waste will have been requirements are at least as stringent as

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules 63483 the RCRA requirements. Most notably, actions if they violated this condition. be adopted by the States before it can be both the RCRA and NRC manifests were We did not place this requirement as a implemented, so it is necessary to developed to be consistent with the condition for the exemption for ensure that the States’ concerns are shipping paper requirements of DOT generators subject to NRC or DOT addressed. We believe that restricting (See 49 CFR 172.200). Therefore, the regulations because they would be the disposal of the RCRA-exempted RCRA and NRC manifests share many subject to NRC or DOT enforcement radioactive waste to a NRC or basic elements. In addition, both actions if they violated NRC or DOT Agreement State licensed LLRWDF manifest regulations require closed-loop manifest or transportation requirements. would address the States’ concern notification and tracking, exception As the exemption is contingent upon regarding DOE’s self-regulating status. reporting, and mandatory record waste disposal in a NRC or Agreement This approach would ensure that all keeping of manifests. NRC’s regulations, State licensed LLRWDF, it is important RCRA-exempted radioactive waste however, go beyond RCRA requirements that a mechanism is in place to track all would remain under an external in several areas, such as requiring longer exempted waste in transit and confirm regulatory framework and enforcement manifest retention times in certain cases that the exempted waste arrived at the authority. In addition, this approach and specifying more stringent schedules appropriate disposal facility. We do not would not exclude DOE from taking for generators to investigate shipments believe this condition would impose an advantage of the transportation and for which they have not received the unreasonable burden on these facilities, disposal exemption if DOE disposes of LLRWDF’s acknowledgment of receipt. as other generators and transporters are its exempted waste in LLRWDFs Given these observations, we believe all required to comply with these licensed by NRC or Agreement State. that NRC’s requirements for tracking of manifest and transportation This approach allows us to low-level waste would more than meet requirements. In addition, it is also accommodate DOE’s waste while our needs to ensure that the exempted critical that the mechanism used is addressing the States’ concern. waste arrives at NRC or Agreement enforceable. Therefore, we believe this Alternatively, DOE can consider State-licensed LLRWDF. Therefore, we proposed condition provides these petitioning the States for developing are not imposing additional RCRA facilities with an opportunity to take site-specific, risk-based exemption tracking requirements in this proposal. advantage of the proposal while bearing levels through the site-specific risk- a reasonable regulatory burden. based variance approach, if adopted, b. Why do generators who self-regulate discussed in section VI.F.2 of this 4. Why Must the Exempted Waste Be under the AEA have an additional preamble. A site-specific risk-based Disposed Only in a LLRWDF Licensed condition to meet? variance would enable DOE to work by NRC in Accordance with 10 CFR 61? We are requiring generators who self- directly with mixed waste authorized regulate their radioactive waste We are proposing that the RCRA- States to develop appropriate risk levels management activity under the AEA exempted waste be disposed of only in and exemption conditions. authority, such as DOE, to follow 10 a LLRWDF licensed by NRC or In addition, this exemption does not CFR 71, and 49 CFR 100–199 Agreement State in accordance to 10 apply to disposal at on-site disposal transportation requirements and 10 CFR CFR 61 to ensure the protection of units at environmental clean up 20 manifest requirements as an human health and the environment activities sites such as disposal units at additional condition to claim the from the disposal of the RCRA- Uranium Mill Tailings Remediation and exemption. Generators and transporters exempted waste at these facilities. This Control Act (UMTRCA) sites and regulated by NRC, or an Agreement is because our evaluation is based on Formerly Utilized Sites Remedial State, and DOT are already required to the review and analysis of LLRWDFs Action Program (FUSRAP) sites. This is follow these transportation and manifest licensed and operated by NRC or because the technical analysis that was regulations. For generators who self- Agreement State in accordance to 10 conducted for this proposal was based regulate under the AEA, this additional CFR 61. on the LLRWDFs that are designed and condition would ensure the consistent We limited our evaluation of the operated according to 10 CFR 61 and application of the manifest and LLRWDFs to only those licensed by associated technical guidance transportation requirements for the NRC or Agreement State due to documents prepared by NRC. The RCRA-exempted radioactive waste. concerns raised by the States. The States disposal units at UMTRCA or FUSRAP Secondly, this condition provides a were concerned about DOE’s self- sites are not subject to 10 CFR 61 vehicle for taking enforcement action regulating status under AEA. Under requirements and NRC or Agreement against a facility who self-regulates such regulatory framework, state State licensing process for LLRWDFs. under AEA if NRC or DOT manifest and radiation control programs do not have However, the proposed exemption is transportation regulations are violated. regulatory oversight authority for the applicable to remediation wastes from By self-regulating under AEA, DOE is RCRA-exempted radioactive waste. The UMTRCA and FUSRAP activities that not subject to NRC, or DOT enforcement NRC or Agreement State has primary are hazardous wastes contaminated with authority for the management of responsibility for exercising regulatory radioactivity, and are disposed at radioactive material, although we authority over the possession and LLRWDFs licensed and operated in understand that DOE works with both transfer of radioactive material by accordance to 10 CFR 61. provided that agencies to resolve issues of concern. commercial entities, and some non-DOE the generators meet all the proposed We believe, however, that enforcement Federal facilities. In contrast, DOE is conditions for exemption. is an important aspect of this regulation. responsible for regulating its own By establishing transportation and activities under the AEA. The States are 5. What Is the Purpose of the Records manifest requirements as a condition for concerned that they would lose control That You are Required To Keep? generators who self-regulate under AEA, over the management of the RCRA- The records would provide your we are providing an external exempted radioactive waste, and lose RCRA program agency with information enforcement mechanism for the RCRA- enforcement authority once it exits during inspections and audits to exempted waste that would otherwise RCRA Subtitle C jurisdiction (see VI. H. determine whether you are complying not exist. Therefore, facilities like DOE for further discussion). In most cases, with all of the conditions of the would be subject to RCRA enforcement this proposed regulation would need to exemption. These records could also be

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 63484 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules used in possible enforcement actions. access to relevant information at the • Potential human and environmental Since the exemption is self- State or local level (for example, public receptors; implementing, it is particularly libraries, or fire stations). • At a minimum, national risk important that you keep all of the protection goals identified by EPA; F. What is EPA’s Site-Specific, Risk- • Potential routes of exposure (i.e., required records and make them Based Variance Alternative for direct and/or indirect); and available to the regulatory agency, when Disposal? requested. • Potential exposure media: We are proposing an alternative 6. How Is the Public Involved? —Groundwater (at a minimum); approach which would be based on site- —Air, if disposing of bulk waste instead a. What Is the role of the public in the specific risk modeling. We are of containerized waste; and proposed transportation and disposal proposing this alternative because the —Surface water, if groundwater-to- exemption? States have expressed interest in site surface water connectivity is a specific risk-based exemption levels concern. The public can play an important role which are more suitable for an under today’s proposal. During the individual disposal site. By using a site- When developing the site-specific rulemaking process, the public will specific risk-based approach, a state can risk-based variance approach, the public have the opportunity to provide choose to customize and establish the participation process found at comments on the proposal. We welcome exemption levels for a LLRWDF under § 268.44(e) would be necessary to and encourage the public to provide consideration based on the specific provide an opportunity for the public to comments on today’s proposed rule to characteristics of the disposal site. understand and comment on the site- help us address their concerns. In Under this approach, we are proposing specific risk levels. (See 62 FR 64507, addition, the public will also have an that the regulated community work Dec. 5, 1997 for additional discussion opportunity to voice their opinions directly with the States in developing for public involvement.) when a state develops regulations to the site-specific risk-based exemption Today, we are soliciting comments on adopt a final rule. At any time, the levels using the risk target level whether the States, the regulated public can also participate by bringing specified by EPA. community, or non-NRC or Agreement to the RCRA program agency’s attention For the transportation and disposal State licensees (for example, DOE) any circumstance that they are aware of conditional exemption, we are would be interested in pursuing the which might aid oversight authorities in proposing to use the current LDR development of site-specific risk-based their monitoring and enforcement treatment standards instead of modeling exemption levels. We seek comments on efforts. Furthermore, the public can to develop new national risk-based the site-specific risk-based variance request information concerning a levels. However, under RCRA, we can approach, and the types of guidance particular facility’s operational records generally grant exemptions and documents needed by EPA for site- from a state regulatory agency if they variances from RCRA requirements, if specific risk modeling. We also seek have a reason to believe that an alternate practice will not adversely comments on whether this approach mismanagement at a facility may pose a impact human health and the would be preferred over the proposed risk to human health or the environment. conditional exemption. environment. The public can also bring We are asking for public comments on G . How Did we Conduct our Technical a citizen suit against a generator for the approach of a state approved site- Assessment for the Disposal of Treated failure to comply with the conditions of specific, risk-based alternative to allow Waste at Low-Level Radioactive Waste the Rule. the disposal of hazardous waste Disposal Facilities? b. How can the public obtain contaminated with radioactivity in any LLRWDFs including DOE’s LLRWDFs. Our proposed conditional exemption information about the exemption and for disposal relies on the benefit derived stay involved? This approach could be pursued by States, an owner/operator of a LLRWDF from the LDR treatment requirements, We recognize the need to enable (NRC or Agreement State licensee or and the protection offered by LLRWDFs communities to become more active DOE sites), or a consortium of licensed pursuant to 10 CFR 61. Our participants in local environmental generators of LLMW or eligible NARM. evaluation of NRC regulations at 10 CFR issues by providing easy access to In pursuing this option, a petitioner 61, NRC technical guidance documents, information. As the exemption is self- must demonstrate that the site-specific and NRC or Agreement State licensing implementing, we do not see the risk-based exemption levels are requirements for LLRWDFs (see advantages of notifying the public since protective of human health and the Technical Background Document, Ref. there is no formal decision-making environment as defined by EPA at the 7) forms the basis of our finding that the opportunity, prior to the exemption, disposal location. In these situations, a NRC or Agreement State disposal that the public could participate in. site-specific risk-based variance petition requirements per 10 CFR 61, and EPA Many State environmental agencies developed in consultation with and disposal requirements provide have mechanisms, such as telephone approved by the State RCRA agency comparable protection for human health hotlines, printed or electronic media, to may be a desirable alternative to the and the environment. This finding is keep the public informed and to answer conditional exemption proposed today. based on the following: questions about public safety and When developing the site-specific • The reduced toxicity and mobility environmental issues. We believe these risk-based levels, the petitioner should of RCRA hazardous constituents when established procedures and information account for the following factors: LLMW or eligible NARM wastes are repositories are sufficient to keep the • Climatological and hydro-geological treated to LDR treatment standards. public informed of the disposal information; • Our analysis of NRC regulation activities of LLRWDFs, and encourage • Information on hazardous licensing requirements for ‘‘near- state environmental agencies to utilize constituents of concern in the LLW, or surface’’ disposal of LLW. these mechanisms. Depending on the NARM contaminated waste (the number • Protection provided against structure of the State program, the State of constituents can be targeted by chemical risks to human health and agencies may decide to provide public restricting the RCRA waste codes); environment when LLMW or eligible

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NARM meets the LDR treatment the following: siting/location, waste • The Chem-Nuclear Systems standards and is disposed of in packaging/containerization, landfill disposal site in Barnwell, South LLRWDFs subject to 10 CFR 61 engineering design, disposal cell/unit Carolina (available to all States except regulations and the NRC licensing management requirements, post-closure North Carolina and those belonging to requirements. care, and institutional controls. the Northwest and Rocky Mountain Based on this analysis, we concluded Numerous possible exposure Compacts). that disposal in a LLRWDF would be pathways exist based on the • The U.S. Ecology disposal site in protective in lieu of RCRA regulation so combination of sources, exposure Richland, Washington (available to long as the waste meets RCRA LDR medium, exposure routes, and receptor States in Northwest Compact and Rocky treatment standards and is disposed at types. For this analysis, we evaluated Mountain Compact). a facility meeting the NRC or Agreement many possible exposure combinations, • The Envirocare disposal facility in State low-level waste disposal selecting the most plausible ones (for Clive, Utah (commercial facility not regulations according to 10 CFR 61. example, ground water)based on unit, belonging to any Low-Level Waste The following sections discuss our media, and exposure combinations Compact). evaluation of low-Level waste disposal (landfill ∫ ground water ∫ drinking • The U.S. Ecology disposal facility requirements of LLRWDFs, licensed by water) and eliminated other pathways in Ward Valley, California (future site NRC, for the disposal of LLMW or based on waste form, unit, and for states in Southwest Compact). • eligible NARM that has met RCRA LDR management for example, the least The Hudspeth County, TX facility treatment standards. For additional plausible ones (landfill ∫ overland ∫ in Sierra Blanca, Texas (future site for discussion, see the Technical Texas Compact). human ingestion). • Background Document in the RCRA The proposed requirement of The disposal status at the last two Docket for this proposal. (Ref. 7) complying with LDR treatment facilities is currently uncertain. However, as part of our technical 1. How Did We Assess Low-Level standards and disposal of waste in low- assessment, we evaluated them along Radioactive Waste Disposal Facilities? level radioactive waste landfills licensed by NRC or Agreement State with the three existing licensed low- We compared low-level mixed waste were the main factors leading to the level waste disposal facilities. disposal of hazardous waste in the elimination of all but groundwater RCRA Subtitle C program to disposal at b. How were the sites evaluated? pathways for human exposure. Under LLRWDFs licensed by NRC or an We evaluated these sites using the LDR requirements, hazardous waste Agreement State. Hazardous waste technical and administrative criteria. must meet constituent-based under RCRA must first be treated The administrative criteria include NRC concentrations or technology standards. according to the LDR treatment regulations, guidance, and actual license These requirements result in either standards before the hazardous waste conditions for site operation and reduced constituent concentration, can be placed or managed on the land, management. The technical portion of toxicity, and mobility. We believe that and the treated waste continues to be the analysis considered climatological, the RCRA LDR treatment standards for managed as a hazardous waste. geological, and soil properties. In LLMW or eligible NARM waste and the The suitability of disposal of eligible addition to the site environmental NRC or Agreement State requirements hazardous waste contaminated by LLW properties, they were also evaluated for for LLW disposal including the limit on or NARM as part of this technical siting, landfill unit engineering and liquid content of LLW disposal in assessment, relies on waste treatment construction criteria, closure, and LLRWDFs, chemical compatibility and the placement of waste in an institutional post closure controls (Ref. requirements for disposal, and cover engineered disposal cell meeting the 7). waste disposal facility performance system minimizes the possibility of standards specified under 10 CFR Part leaching, volatilization, and gaseous i. Are the locational requirements 61. Our approach recognizes that diffusion. In addition, containerization comparable between EPA and NRC compliance with LDR treatment of low-level waste (the waste form and regulations? standards is integral to the overall structural integrity requirement of NRC The locational requirements between protection scheme developed for or Agreement State) inhibits leachate RCRA and NRC are generally disposal of eligible hazardous waste generation, particle air dispersion, and comparable, with NRC being more contaminated with NRC or Agreement run on-runoff from landfill. Also, NRC restrictive in specific areas. Both State-regulated radionuclides. In our or Agreement State siting requirements programs have very similar restrictions technical assessment, we also consider restrict siting of disposal facilities at for seismic areas and flood plains. The disposal facility siting-engineering locations where presence of onsite water NRC also bans location of disposal design-management-control factors that bodies and off-site groundwater and facilities in environmentally sensitive will provide sufficient protection surface water connectivity would be of locations, such as wetlands and coastal against chemical risks for eligible concern. high hazard areas (10 CFR 61.50(a)(5)). hazardous waste contaminated by LLW 2. What Was the Technical Assessment The NRC does mandate restrictions for or NARM meeting RCRA LDR treatment we Conducted? ground water surface water connectivity standards. In evaluating risks, we on-site and potential restrictions on off- considered whether the NRC a. Which low level waste disposal site surface water impact from either requirements (10 CFR Part 61) for low- facilities were considered for this ground water connectivity or overland level waste disposal could meet the analysis? mechanisms (10 CFR 61.50(a)(8)). The same general criteria of protection from Our technical assessment analyzed NRC also ensures that the disposal chemical hazards as a hazardous waste five disposal facilities under NRC or facility should not exploit natural meeting Subtitle C landfill requirements Agreement State or Agreement State resources that would result in not in 40 CFR Part 264. The technical regulation that could be candidates for meeting performance objective (for analyses we conducted between RCRA accepting LLMW or eligible NARM example, potable ground water). The hazardous and low-level waste landfills which meets the LDR treatment NRC required performance analysis of considered many practices including standards: the disposal site for radiation hazards

VerDate 29-OCT-99 18:38 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm03 PsN: 19NOP3 63486 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules factors in: presence of a receptor, requirements would likely achieve the RCRA has certain minimum technical duration of transport, and dose to the purpose of the NRC containerization design requirements for landfill covers receptor. The NRC also requires the requirements to prevent contact and liners. These requirements were ability to characterize, monitor, and between waste and water and to reduce established to help ensure that disposal model the facility (10 CFR 61.50(a)(2)) the potential generation of waste requirements of hazardous wastes leading to avoid siting of a disposal leachate. would limit potential human exposure facility in areas of complex subsurface to hazardous constituents and provide iii. Are the landfill design requirements geology (e.g. active karst or fractured for protection of human health and the comparable between EPA and NRC rock). environment (3004(a)). For example, regulations? RCRA requires that the liner system be ii. Are the treatment and liner/container EPA and NRC take different composed of an upper liner component requirements comparable between EPA approaches to landfill design. While such as a geomembrane, a 3 foot thick and NRC? EPA relies on prescriptive regulations (91cm) 1×10¥7 permeability lower liner In general, the treatment and for cover and liner design and soil component, and a double leachate container requirements are comparable construction, NRC relies heavily on the collection systems between these liners between RCRA and NRC. LLW that is performance requirements of its cover (40 CFR 264.301(c)), and that the cover Class A waste must be stabilized system, containerization, and be no more permeable than the landfill’s according to 10 CFR 61.56(b). NRC also environmental setting. The NRC liner system (40 CFR 264.310(a)(5)). requires that the Class A waste be mandate requires that the engineered Because the cover can be no more treated to reduce the potential hazards landfill design system integrates both permeable than the liner, RCRA requires from the non-radiological constituents the site properties (climate, soil geology) that the cover will at least be of a 3-foot to the maximum extent practicable (10 along with the performance of the cover thick layer with 1×10¥7 permeability. CFR 61.56(a)(8)). These requirements system. This integration grants Some of the chemical constituents in are similar to RCRA hazardous waste flexibility to the final engineering LLMW or eligible NARM could have treatment requirements applicable to design, resulting in site-specific landfill physical/chemical properties indicating some hazardous waste streams (for unit designs. The integrated disposal a high potential for mobility in the example, metal-containing waste, and systems might include concrete vaults subsurface or in groundwater. While macro/micro encapsulated debris). Also, (especially in humid environments of this situation is theoretically possible, as noted earlier, RCRA requires that the country—for example, Chem- our analysis indicates that LDR hazardous waste be treated to LDR Nuclear facility at Barnwell, SC) which requirements and NRC waste disposal treatment standards before the have a thick cover that might include requirements (and NRC guidance) for hazardous waste can be landfilled. Both geo-materials or even a liner. Overall, minimizing water infiltration through NRC and EPA restrict the liquid content our analyses indicated a grouping of the the cap and contact with the waste (10 of the waste destined for disposal in cover systems by their performance and CFR 61.50(a)(4), 10 CFR 61.51(a)(4)) will landfills. The NRC restricts the free that the Subtitle C and LLRWDF prevent significant releases of chemical liquid contents to 1% by volume or less. engineered systems are comparable (Ref. constituents from the waste into the The EPA regulations require use of a 7). groundwater and thus provide for specified test showing that under the NRC requires that the landfill be sufficient protection of human health specified pressure, there is no visible designed to limit human exposure to a and the environment. The protection of sign of liquid release. specified level of radioactivity. Unlike groundwater against chemical releases In some instances, the NRC is more RCRA, NRC does not set detailed design at LLRWDFs through requirements of restrictive by requiring disposal of waste specifications for liners, covers, or this proposed rulemaking is further as containerized waste. NRC regulations monitoring in order to prevent releases described below in section v. require that waste be packaged such that to groundwater. Instead, AEA landfills waste form and structural integrity be are designed to provide assurance that iv. How do institutional controls maintained until the Class A concentrations of radioactive material minimize long-term risks? radionuclides decay. However, except which may be released to ground water, Post-closure care under RCRA for liquid waste disposal, EPA does not surface water, air, soil, plants, or regulations can last for 30 years or more, require containerization of waste. NRC animals must not result in exposures to during which time the ownership of the container requirements require that steel humans above specified health-based property remains in private hands. After drums or high-integrity containers levels (10 CFR 61.41). NRC has landfill the post-closure period, the site is (HICs) be used to store and dispose LLW performance requirements which available for redevelopment. Under and must meet the American Society of include that the landfill must be AEA, facility maintains active care for Testing Methods (ASTM) performance designed to limit human exposure to a up to 100 years and the facility is in requirements related to, among other specified level of radioactivity and governmental control. The longer active things, structural integrity and intrusion by humans and animals (10 institutional control under AEA should resistance to corrosion. In addition to CFR 61.14(b)). Unlike RCRA, NRC does result in better maintenance of the minimizing contact with water, NRC not set detailed design specifications for facility and governmental control is a requires disposal of a containerized liners, covers or monitoring in order to source of long-term control. In some waste in a disposal cell. RCRA does not detect and mitigate releases to states (for example, New York,) RCRA require disposal of hazardous waste as groundwater. Instead, LLRWDFs are post closure and financial assurance are containerized waste. However, RCRA designed to provide assurance that required for up to 100 years, much like requires that landfills be constructed concentrations of radioactive material that required under AEA. with a double liner and leachate system which may be released to the general The post-closure monitoring that at least include a 3-foot thick environment in ground water, surface requirements differ between NRC and (91cm) 1×10¥7 permeability lower liner water, air, soil, plants or animals must EPA. RCRA requires that post-closure soil component, and requires that the not result in exposures to humans above groundwater monitoring be conducted cover be no more permeable than the specified health-based levels (10 CFR at all RCRA landfills to assess the landfill’s liner system. These RCRA 61.41). potential release of chemical

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules 63487 constituents from the landfill, and that release of radionuclides, must report We have conducted technical groundwater monitoring be able to any releases to regulatory agencies, and analyses to determine the possibility of allow for the detection of chemical take action to clean up such releases if a chemical release at the LLRWDFs. We contamination at the point where the of concern. have also conducted a comparison constituents could migrate from the As discussed above in sections I–iv, between the drinking water standards landfill to the hydraulically down low-level radioactive waste disposal and the LDR treatment standards (that gradient limit of the landfill which facility siting, design, operation and is, UTS levels) to determine the extends down into the uppermost closure are subject to requirements potential impact to ground water in the aquifer under the landfill (40 CFR comparable to those for RCRA event of a chemical release. Our finding 264.95, 264.97(a)(3)301(c)). NRC also hazardous waste disposal facilities. from both analyses indicates that the requires that groundwater monitoring be Some hazardous waste disposal potential for a chemical release causing conducted to allow for early detection requirements are more specific than the a threat to the ground water is not and mitigation of radiological low-level waste disposal requirements significant. The analysis we conducted contamination. However, the for the potential release of chemical was of the screening nature and not all- regulations are flexible regarding the constituents. For example, under RCRA, inclusive for chemical constituents. The location of ground water monitoring a double liner and leachate collection analysis was developed for the wells and the extent of the buffer zone system, groundwater monitoring for approximately 90 chemical constituents surrounding the unit (10 CFR 61.12(b) chemical release, corrective action, and known to be present in LLMW or and 10 CFR 61.53(c)). In practice, financial responsibility is necessary for eligible NARM waste based on our ground water monitoring wells are hazardous waste disposal. These evaluation of the industry-provided data located throughout the facility and not requirements are not found in NRC ( Ref. 10). The information is further only at the property boundary. The regulations. NRC regulations, however, limited to chemical constituents where number and exact locations of require ground water monitoring, values exist for MCL and LDR treatment monitoring wells might not be the same corrective measures, and financial standards. From the list of 90 MW as specified in RCRA (10 CFR assurance for the disposal of radioactive constituents, 66 have values for MCL 264.95(a)), but they are located in a waste. NRC’s facility siting criteria and and 48 have values for UTS. The manner allowing early detection of waste containerization restrictions constituents lacking UTS values are radionuclides release and appropriate provide similar outcomes for waste predominantly pesticides, but also mitigation to provide sufficient management compared with EPA’s include some chlorinated solvents and protection against contamination of requirements for a double liner and inorganics (Ref. 7). We used dilution- groundwater. leachate collection based on our attenuation factors (DAFs) to allow for Because the NRC monitoring discussions with NRC and Agreement the comparing of waste treatment levels requirements may only require analyses States. Also, if the radiation hazard to ground water drinking values. The for radiological constituents (and not for becomes a groundwater concern, then use of DAFs reflect subsurface transport chemical constituents), releases of the licensed facility must take corrective (for example, advection and dispersion) chemical constituents may not be measures during the operating life of the and fate (for example, sorption on solids detected (on-site or off-site). If a joint facility and closure and post-closure and precipitation) phenomena. DAFs release of radiological and chemical care periods. In addition, the disposal were available for 44 of the constituents, contamination occurs from an LLRWDF with 23 originating from the TC rule and into the groundwater, by the time the facility must provide funds to the the rest coming from HWIR95 proposal. radiological release is detected, the regulatory agency overseeing operations We used a DAF of 100 for the TC chemical release may have traveled of the facility to State to address such constituents and nationally based values farther and be beyond the site boundary, concerns once the State becomes for non-TC constituents from other if the chemical constituents are more responsible for the health and rulemaking efforts (TC Rule 55 FR mobile in the subsurface environment environmental safety at the facility. 22684, June 1, 1990). We believe that than the radiological constituents. In certain instances, 10 CFR Part 61 the waste analysis sample population is While these situations are theoretically requirements are stricter (for example, representative of the mixed waste possible, we concluded that the various minimizing water/waste contact) thus universe, as identified in the nuclear NRC waste disposal requirements, reducing potential for generation of coupled with LDR requirements would leachate. Additionally, NRC LLW power industry-provided data , and minimize releases of chemical disposal regulations require that the represents the effectiveness of LDR constituents from the waste into the waste be processed into a form which treatment with regard to the drinking groundwater and thus provide for satisfies the detailed waste water MCL benchmark. Even though the protection of human health and the characteristics and waste form criteria analysis is not inclusive for all environment. The protection of specified under 10 CFR 61. At a chemicals, the treatment for an groundwater against chemical releases minimum, according to 10 CFR 61.56(a), identified chemical (for example, at LLRWDFs through requirements of all wastes disposed at LLRWDFs must incineration of benzene) would be this proposed rulemaking is further be processed into a solid form or similarly effective for another similar described below in section v. packaged in absorbent material ensuring constituent (styrene). that liquid content of the low-level A critical exemption condition under v. How is the protection of ground water waste is less than 1.0% by volume this proposal requires that the LDR against chemical release at LLRWDFs found in 10 CFR 61.56(b)(2). A series of treatment standards are met. This addressed in this proposal? technical requirements for these Class B requirement will reduce the chemical Low-level radioactive waste disposal or C LLW, including compressive contents in the waste to a fairly low facilities licensed by NRC or Agreement strength, leach resistance, level. Once disposed, the likelihood of States are not required to do resistance and the chemical constituents to leach out to groundwater monitoring for chemical immersion testing, is found in the NRC the ground water would be substantially constituents. These facilities, however, Waste Form Technical Position, reduced due to the protection provided require monitoring of groundwater for Revision 1 (January 24, 1991). by treatment and the disposal system.

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First, we calculated what the potential be minimal and that would act to understand that both the radioactive concentrations would be in leachate minimize any hazardous constituent and chemical components would be released from LDR treatment standard concentration in the leachate (and remediated because they are mixed compliant hazardous waste hydraulic head—a function of the together. This is especially true if the contaminated by LLW or NARM at presence of a water column and its concentrations exceed regulatory limits LLRWDFs licensed by the NRC or an thickness). These requirements such as safe drinking water levels or Agreement State, and assessed what the significantly reduce the likelihood for other alternate levels. Therefore, we leachate concentrations would be at potential leachate generation at believe that the Agreement States would receptor wells in the vicinity of these LLRWDFs licensed by the NRC or also require a facility during active life, LLRWDFs. We then compared the Agreement States. closure, and post closure phase to be drinking water standards with the These findings and the technical responsive to releases and subsequent leachate concentrations which we analysis discussed above led us to health concerns related to chemical calculated at these receptor wells, and conclude that in the unlikely event of a constituents. Hence, a ‘‘corrective concluded that the potential threat to chemical release, subsequent action’’ requirement similar to that drinking water would be very low, if groundwater contamination is not likely required under RCRA Subtitle C is not any. to be of significant concern. To further necessary. Our comparison between the drinking verify our analyses, we discussed with With regard to remediation, NRC’s water standard and the leachate state regulators, in states where the requirements for reporting and taking concentrations which we calculated for LLRWDFs are located, regarding any corrective measures for radiological all constituents shows that the two past releases from the existing releases (including mixed waste for the levels compare well (for 75% of 44 LLRWDFs. Based on our investigation, hazardous constituents) specify that a constituents the ratio is <1) (Ref. 7). For we understand that there have been no NRC-licensed facility respond to and eight out of 44, the ratio is less than 10, releases of radionuclides, above the institute remedial action for a release of for four constituents (benzo(a)pyrene, regulatory limits, detected in the ground radioactive waste. Also, in 10 CFR ethylene dibromide, water at offsite, commercial LLRWDFs 61.53(b) a LLRWDF is required to have hexachlorobenzene, and dioxin), it is since 10 CFR 61 has been promulgated plans for taking corrective measures. greater than 10 and in the case of in 1982. The LLRWDFs that were When promulgating the exemption from dibromochloropropane, it is greater than operational at that time were required to RCRA Subtitle C for petroleum 10, but less than 200. However, based be upgraded to meet these regulations. contaminated media and debris, EPA on the mixed waste treatment practices Since then, the two low-level waste determined that subjecting and the available waste volume data disposal facilities at Richland, WA and contaminated media to RCRA C-based (with the LLMW generation rate of Barnwell, SC (that were operating before corrective action was not appropriate or 108,000 cubic feet per year), we believe the promulgation of the NRC regulations necessary because an alternative that these constituents with a ratio of at 10 CFR 61) have been retrofitted, and regulatory program (RCRA Subtitle I) greater than 1, are not generally present their licenses have been amended would provide the requisite degree of in these LLMW, and if present the waste pursuant to 10 CFR 61 required protection to human health and the volumes are small compared to the standards. In conclusion, we believe environment (55 FR 11836). Our quantities of low-level waste disposed that the disposal of LLMW, meeting proposal to exempt LLRWDFs that of in a disposal cell at LLRWDFs (Ref.7). LDR treatment standards, in NRC or accept exempted waste for disposal Furthermore, generally, the volume of Agreement State licensed LLRWDFs from RCRA corrective action the containerized, exempted (solids will not pose a threat to ground water requirements is similar to the petroleum only) waste disposed at these LLRWDFs and cause concern for health risks. We contaminated media exemption. Based licensed by NRC is expected to be quite recognize that some members of the on our review of NRC corrective small relative to the total quantities of public may still be concerned about requirements for potential radiological containerized LLW that would be potential chemical releases at releases, including mixed waste, we disposed in disposal cells at these LLRWDFs. Therefore, we are soliciting believe that those NRC requirements for facilities. (Ref: 7). Therefore, we believe comments on whether we need to addressing releases associated with any potential release would be minor. consider, as a condition for the mixed waste are adequate. The We evaluated NRC’s LLRWDF siting, exemption, groundwater monitoring for likelihood of a potential chemical disposal unit engineering design, chemical releases. We are also release after the disposal of relatively containerization requirement, and post- requesting groundwater monitoring data small quantities of RCRA-exempted closure care practices. NRC siting from LLRWDFs. waste (especially containing hazardous regulations require that the disposal site constituents at or below the LDR vi. Why would corrective measures and provides long term stability and waste treatment levels) of very low financial responsibility provisions isolation. Final cover requires capping concentration is negligible (based on our beyond those under 10 CFR 61 be of a disposal unit such that infiltration UTS/MCL comparison) (Ref. 7). We, unnecessary? of rain water and contact of waste with therefore, would expect imposition of infiltrated water is minimal. The final We believe NRC’s waste form RCRA Subtitle C-type corrective action cover system, consisting of compacted requirements and low-level waste to be unnecessary. clay, high density polyethylene layer, disposal cell design and capping With regard to financial assurance, and a vegetative layer would reduce requirements in combination with the the LLRWDFs are financially entry of water into the disposal unit. condition that the waste meet LDR responsible for clean up of groundwater The requirement for containerization of treatment standards will minimize during operations, if it poses a health the waste also controls the potential for water entry, leachate generation, and threat. In addition, 10 CFR 61 requires waste/liquid contact and subsequent releases. Also, NRC requires corrective LLRWDFs to establish financial leachate production. In addition, the measures to address groundwater assurance that will provide funding for landfill bottom design promotes short contamination if of concern. In the closure and post-closure care. The NRC liquid/waste residence time. Thus, the event of a release, based on our or Agreement States are unlikely to contact of liquid with the waste would discussion with an Agreement State, we require clean up of radionuclides alone

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For example, chemical stringent groundwater protection contamination of groundwater resulting constituents present could be either requirements and criteria to mitigate from disposal of the exempted waste at more or less mobile than the radioactive radiological releases to the groundwater LLRWDFs. constituents present, resulting in either is given. With regard to mitigating In addition to the NRC-required an over-or underestimation of chemical chemical releases to the groundwater, if corrective measures pursued by the hazards. any, by the licensing agency we LLRWDF or the Agreement State, we • LDR treatment to ground water understand that the licensing agency retain our broad RCRA authority, protectiveness was of the screening would require remediation of specifically, under RCRA 7003. Under nature and not all-inclusive. The radioactive material in groundwater and this authority, we can bring suit and information is limited to chemical work with any other regulatory require the responsible party(ies) to take constituents where values exist for authorities to ensure that non- necessary action. And, under 40 CFR MCL, LDR treatment standards, and radioactive material contamination is 302.4, we have independent response also addressed. DAFs. The gaps in this data for where • authority under CERCLA, if a release of an MCL, UTS, or DAF does not exist The extent to which State a hazardous substance is in excess of a may result in either an overestimation requirements will address some of the ‘‘reportable quantity.’’ or underestimation of the potential key landfill design factors discussed We request comment on whether for chemical hazard to receptors. above is uncertain. any reason under this conditional There are potentially significant • We did not conduct a quantitative exemption, we should require uncertainties regarding whether and risk-based analysis geared to the sites LLRWDFs to provide RCRA-like how exposure will occur. Also, our where disposal may occur. We also did financial assurance for cleanup of RCRA comparison between land disposal not quantitatively estimate the risk of hazardous constituents. regulations for NRC and EPA presents developing cancer from the potential simplifications of reality. The different vii. What are the uncertainties of our exposure to chemical contaminants in approaches used by the two programs technical analysis? the waste. The lack of a quantitative risk lead to a certain degree of uncertainty in This section identifies the primary analysis leads to sources of uncertainty making the comparative analyses used sources of uncertainty associated with in assessing the most sensitive potential in this study. In addition, the variations the comparative and technical analysis toxicological effects, exposure routes, in site-specific conditions and described above, and qualitatively and constituents of concern within the implementation of the permit/license describes how each may influence the waste. While our analysis did factor in are virtually impossible to completely results of these analyses. Sources of site-specific data, we did not address account for when determining uncertainty identified in our analyses future siting of LLRWDFs because of the protection of human health and the include the following: difficulty of siting new facilities as seen environment. The comparison was • Much of the data that we used to in recent site rejections (for example, intended to approximate real-world assess the protectiveness of radioactive Ward Valley in CA, Nebraska site). As conditions and processes, and their waste disposal regulations of NRC and a result, our technical analyses might relationships. Because of the nature of EPA regulations for hazardous waste overestimate or underestimate the our technical approach, the analysis we landfills were not directly measured. potential chemical hazard to receptors. have pursued for this proposal did not For example, we relied on existing • The technical analysis did not include all parameters or equations reports and waste surveys; no specifically assess risks to sensitive commonly seen in a detailed risk-based independent field study supported the subpopulations and environments. The modeling approach. Consequently, the technical work. Some of the most likelihood that landfills are located in technical approach was based on important and sensitive parameters certain environmental areas where various assumptions and which we considered in our analyses constituents might move significantly simplifications, and as a whole could include those that describe waste with groundwater is uncertain. The result in either an overestimation or composition; waste management waste treatment, packaging, waste form underestimation of the potential practices; and site characteristics. While requirement, and the existence of comparative protectiveness between the not specifically addressed in our physicochemical limitations (e.g., EPA hazardous waste and NRC LLW technical approach, the parameters and interactions between contaminants and disposal systems. exposures considered include aquifer material), biological and physiologic and behavioral exposure chemical degradability of other 3. What Did We Conclude From our characteristics of the receptors; the constituents that may be present (e.g., Technical Analyses? physical, chemical, and biochemical sandy or other porous soils), soil organic We evaluated NRC’s LLRWDF siting, properties of the hazardous waste matter and clay content, soil exchange disposal unit engineering design, contaminants; and toxicological effects capacity, dissolved organics or organic containerization requirement, and post- indirectly factored in using MCL and acids in the groundwater, competing closure care practices. We found that as DAF benchmarks. cations, changes in soil environmental a whole these attributes provide • EPA did not have chemical conditions such as organic waste matrix, comparable protection to that provided constituent groundwater monitoring pH, redox potential or soil solution by a RCRA hazardous waste landfill. data from wells surrounding LLRWDFs. composition over time, and other NRC siting regulations require that the This information would help us to physical and chemical characteristics of disposal site provides long term stability assess whether chemical constituent the ground water and geological and waste isolation. Final cover requires releases have occurred at these facilities. medium, might significantly increase/ capping of a disposal unit such that While information was available on decrease the mobility of chemical infiltration of rain water and contact of radioactive constituents, the lack of constituents in groundwater in the short waste with infiltrated water is minimal.

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The final cover system, consisting of populations or the local economy) in the be the implementing agencies of a compacted clay, high density design of their regulations and the proposed RCRA exemption in most polyethylene layer, and an implementation of the state programs. cases. The States and DOE held evapotranspiration (that is, evaporation States may also consider site-specific discussions over a period of one year of water from top layers of cover and concerns such as protection of surface without reaching a resolution. DOE has water removal by vegetation used as an water, wetlands or endangered species. subsequently suspended the alternative integral part of the final cover) rate Thus, a State program may be more proposals it had submitted. DOE has greater than the rate of precipitation stringent than the RCRA federal also been working with the States to would all but eliminate the entry of program or less stringent (depending on discuss its LLMW disposal options and water into the disposal unit. The the site performance assessment) as plan LLMW disposal capacities. The requirement for containerization of the allowed under the NRC. As part of the planning of DOE’s LLMW disposal waste also limits the potential for waste/ State-implemented conditional facilities would eventually provide DOE liquid contact and subsequent leachate exemption, a State may require with relief to its LLMW disposal production. In addition, the landfill groundwater monitoring for potential dilemma. bottom design promotes short liquid/ chemical releases or inspect the Given that the issue between the waste residence time; thus, the contact LLRWDF-generated groundwater States and DOE was not resolved, we of liquid with the waste would be monitoring data for detecting releases of tried in this proposal to provide some minimal, minimizing hazardous radionuclides and use this information regulatory relief to DOE for its LLMW constituent concentration in the as a surrogate or indicator for releases of while respecting the States’ need to leachate and hydraulic head (a function hazardous constituents with similar fate retain oversight of DOE generated of the presence of a water column and and transport characteristics. LLMW. We are, therefore, proposing to its thickness). At the NRC or Agreement In conclusion, even though EPA and allow the exemption to be applicable to State regulated facilities, the likelihood NRC waste disposal regulations follow all generators of LLMW or eligible of water and waste contact is highly different approaches, we believe that NARM including DOE. However, we unlikely and therefore, potential for both ultimately achieve a high level of limited the disposal of the RCRA- leachate generation is significantly protection. exempted waste to only those LLRWDFs reduced, thus mitigating the need for a H. Key Stakeholder Issue licensed and regulated by NRC or Agreement State. In this way, DOE liner and leachate collection. We found In 1995, we published in the Federal many similarities between the two could utilize the conditional exemption Register, a notice of proposed for disposal while the NRC or programs (Ref. 7): rulemaking (referred to as the HWIR95), • Locational requirements for siting Agreement State radioactive material which, among other things, requested control programs would retain the of disposal units; comments on several options for • Prohibition on the disposal of free oversight of the RCRA-exempted waste. conditional exemption from RCRA liquids; In addition, commercial LLRWDFs have • Treatment of waste to reduce health Subtitle C management requirements indicated that they would be willing to hazards; (60 FR 66344; December 21, 1995). One consider accepting DOE conditionally • Disposal of waste in an engineered option we suggested (60 FR 66344, exempt waste for disposal, if such landfill; and 66400–66401) would have exempted acceptance does not conflict with their • Extended period of institutional mixed waste from Subtitle C hazardous agreement with the State low-level control. waste disposal regulations if they were waste compacts. There were a few differences between treated to meet risk-based chemical VII. Regulatory Impacts the two programs: constituent concentration levels and • Hazardous waste landfills must were managed in disposal facilities We anticipate that implementation of have a liner and leachate collection, subject to controls imposed under the this rule will result in incremental while AEA only requires leachate AEA. In response to the HWIR95 benefits (from cost savings and risk collection; proposal, the Department of Energy reductions) and some incremental costs. • Most low-level waste disposal can (DOE) submitted alternative proposals These costs are expected to be much only occur as containerized waste (in for our consideration, which would smaller than the overall benefits of the containers with a structural integrity of have allowed certain treated mixed rule. (Ref. 14 and 17.) 100–300 years), while hazardous waste wastes generated by DOE to be We have based our assessment on the disposal does not specify containers, conditionally exempted from RCRA best data available; full references and although the liner could be viewed as a Subtitle C hazardous waste disposal details are available in the Regulatory form of containerization; requirements, if such mixed wastes Impact Analysis which accompanies • Since hazardous waste disposal were disposed in a DOE self-regulated today’s proposal. We have also assumed regulations do not require LLRWDF. Several State RCRA Agencies that generators will be willing and able containerization of solid waste, the and Attorneys’ General expressed to dispose of their waste in LLRWDFs, potential for particulate emissions concern over DOE’s proposals, and also within the scope of existing limitations exists; and were opposed extending the HWIR95 on capacity and acceptance criteria. • NRC-requires institutional control risk-based exit levels to DOE mixed Significant uncertainties make it for a minimum of one hundred years waste (see public comment in RCRA unusually difficult to estimate the under State control; while EPA-requires docket in response to the HWIR95 impacts of this rulemaking. In addition post closure care for 30 years. proposal-Ref. 15). In particular, States to uncertainties about the quantities of In addition, the adoption and were concerned that they would no LLMW generated in the U.S. there are enforcement of both the EPA and NRC longer have regulatory jurisdiction over also questions about the eventual regulations by the States tends to make DOE’s RCRA-exempted radioactive disposition of these wastes. Although the State programs under both EPA and waste once the wastes are disposed in this rulemaking creates opportunities NRC more protective than the Federal DOE’s self-regulated LLRWDF. We for disposal of much of this waste, these requirements. States generally consider encouraged DOE to work with the States opportunities also depend on as-yet site-specific concerns (such as sensitive to resolve this issue, since States would undetermined action by State regulatory

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What Are the Costs of This Rule? affect the magnitude of that net benefit. procedures to track quantities of organic To the extent that any generators can solvents purchased, used, and left over/ Generators, who are not meeting take advantage of storage or disposal discarded). Therefore, despite industrial regulatory requirements for disposal, provisions of this proposal, net benefits growth over the intervening years, we may incur some increased spending for will accrue. believe that the LLMW volumes treatment and disposal relative to their Sections A and B below provide generated today would not be much current costs under RCRA hazardous further detail on benefits and costs different from those reported in 1992. waste management if this rule is associated with this rule; Section C Some federal facilities also generate implemented, but not relative to costs of addresses economic impacts. We base LLMW. The total volume of LLMW meeting existing RCRA Subtitle C assessment of benefits and costs on a generated annually by DOE facilities far regulations. This is because this rule comparison of waste management after exceeds the volume generated by the will open up disposal capacity for implementation of this proposal as a commercial sector. wastes which currently do not meet the final rule compared with waste Benefits from this rule may accrue in waste acceptance criteria of the existing management in the absence of this rule. the following areas: LLMW disposal facility. Without this • Permitting cost savings: Those rulemaking, these legacy wastes might A. What Are the Regulatory Benefits of generators needing RCRA permits only simply continue to be stored on site This Rule? for storage or treatment of their mixed indefinitely, leaving the generators in In 1990, EPA, NRC and the Oak Ridge wastes will save these permitting costs violation of RCRA permit requirements. National Laboratory conducted a survey and associated corrective action costs. These generators would incur not only of commercially generated low-level • Decay in Storage cost savings: The storage costs, but costs associated with mixed waste (Ref. 8). A report of the rule would allow facilities to store being in violation of RCRA. survey findings was published in 1992 certain wastes while their radioactivity Generators taking advantage of disposal under the title: National Profile on decays. These wastes could then be exemptions will incur costs to meet Commercially Generated Low-Level treated and disposed as hazardous notification conditions. EPA has not Radioactive Mixed Waste. As stated in waste, which is less expensive than quantitatively estimated costs of compliance the Executive Summary ‘‘The * ** LLMW treatment and disposal. EPA with these notification conditions; but objective of the work was to compile a estimates aggregate cost savings from expects these costs to be smaller than the national profile on the volumes, these waste streams will be between administrative cost savings that accrue to characteristics, and treatability of $800,000 and $2,600,000 per year. generators under this proposed rulemaking. commercially generated low-level • Other disposal cost savings: This Under this rule, there will also be some mixed waste * * * by major facility rule would facilitate disposal of wastes increased costs to EPA and state categories * * * [including] academic, in LLRWDFs, possibly saving between agencies overseeing management of industrial, medical, and * ** $100,000 and $800,000 each year. EPA mixed wastes. We expect these entities government facilities and nuclear has not estimated savings resulting from to incur costs associated with utilities.’’ Based on this research, and reduced storage costs. notification conditions for generators/ site visits in 1998 (see docket to ANPR), • Other cost savings: Generators of treaters of LLMW (that meets the LDR we believe that there are a number of mixed waste and Federal/state RCRA treatment standards); sending their LLMW generators, who could benefit regulating agencies are expected to save waste for disposal at LLRWDFs and from this proposed regulatory relief. administrative burden and costs because related implementation costs. This will Based on the 1992 Study (which was of this regulatory relief. result in a small increase in costs for weighted to develop a statistically valid • Risk Reductions: EPA anticipates these regulating bureaus. As a whole, estimate of the nation) we estimated that that generators will take advantage of costs to EPA and state agencies are the national generation rate of mixed relaxed storage restrictions to allow likely to be far lower, since these waste was 108,000 cubic feet per year certain LLMW to undergo decay in regulatory agencies will have reduced and that 4,000 cubic feet of mixed waste storage. NRC or Agreement State administrative costs as noted in section was in storage for various reasons. (Ref. approves this process which allows A above. 14 and 17.) Nuclear utilities accounted certain short-lived radionuclides in for roughly 10 percent of the total these wastes to decay. The remaining C. What Are the Economic Impacts of commercially generated LLMW volume decayed waste no longer meets the This Rule? in the United States. ‘‘The industrial definition of radioactive under the AEA. By allowing LLMW to be disposed as category was estimated to be the largest Since EPA does not expect these wastes LLW, this rule may have impacts on the generator and accumulator of mixed to be treated or handled during the national market for disposal of LLW, waste, with over 36% of the generation radioactive decay process, waste although we have not specifically and nearly 57% of the storage, of the handlers in treatment and transportation modeled these impacts. The larger the total mixed waste in the United States will not be exposed to this radioactivity. volume to be added to the disposal in 1990.’’ (Ref. 8, p. 40). Based on our This decrease in exposure translates to market, the greater the effects are likely discussions with the regulated an unquantified risk reduction, to be. The largest volumes of LLMW community, we understand that attributable to the relaxed RCRA storage potentially to be disposed at commercial commercial generators of LLMW have restrictions in this proposed rule. LLRWDFs are those generated by the taken a number of steps, including DOE may also save on transportation Department of Energy, including wastes pollution prevention, waste and disposal costs, to the extent that from site cleanup/remediation activities. minimization, and source reduction they choose to meet the conditions for Overall, we expect aggregate (such as using water-based scintillation exemption and dispose of wastes in economic impacts to be positive for all

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LLMW generators and LLW disposal LLMW, these States could address these non-hazardous waste under this facilities. Some generators may find concerns when adopting this rule. (See proposal. For the waste to maintain a increased costs for treating and Section 3009 of RCRA.) A State may add non-hazardous waste status, the disposing of wastes which were a requirement for ground water generator must meet all the other previously stranded on-site; without the monitoring for potential chemical conditions for exemption proposed rule, these facilities would incur releases, or use the LLRWDF-generated today. permitting costs, continuing storage groundwater monitoring data for release 3. How Will the RCRA-Exempted Waste costs, and potentially the costs of being of radionuclides as surrogate or Differ From Wastes Delisted per 40 CFR in violation of RCRA. The only possible indicator data for releases of hazardous 260.22? negative impact may fall upon the single constituents with similar fate and mixed waste disposal facility which transport characteristics. The evaluation criteria used for currently accepts some LLMW for delisting vary from today’s proposal to disposal. By allowing LLRWDFs to IX. Relationship With Other RCRA and conditionally exempt LLMW or eligible dispose of the LLMW that meets Land Environmental Programs NARM from the RCRA definition of Disposal Restrictions, this rule will A. What is the Relationship of This hazardous waste. In today’s proposed introduce some competition into the Proposal With Other RCRA Regulatory conditional exemption the evaluation market for disposal of LLMW. Most of Programs? criteria are national and categorical. the wastes affected by this proposed This contrasts with the evaluation rule, however, are unlikely to have been Below, we discuss how this proposed criteria for delisting which are based disposed at the existing facility (see the rule would affect other relevant RCRA upon a designated waste stream and are Regulatory Impact Analysis for regulatory programs. case specific. In delisting, we evaluate complete explanation. Ref. 14 and 17). 1. Does This Proposal Change How You the processes generating a specific waste Determine if a Waste is Hazardous? stream to determine the constituents VIII. State Authorization likely to be present, as well as the As of December 1998, a total of 40 No, the proposed rule is a conditional potential variability in the waste. states and one territory were authorized exemption from the RCRA definition of for implementing RCRA mixed waste hazardous waste. It does not change the 4. Will My Waste Analysis Plan of My regulations. In States (and territories) general requirements to determine if a RCRA-Permitted TSDF Change? that have not received final waste is hazardous. Under current No, if you are an owner or an operator authorization to implement the RCRA RCRA regulations, if you generate a of RCRA-permitted or interim status program, the final rule would apply solid waste, you must first determine if TSDF, also licensed by the NRC for upon the effective date. Since this rule it is a hazardous waste as outlined in 40 managing LLW, and plan to claim a is not being promulgated under HSWA CFR 262.11, Hazardous Waste conditional exemption, you remain statutory authority, it would not apply Determination. A generator of LLMW subject to the waste analysis and waste under RCRA in States with final must also determine if the waste is analysis plan requirements of part 268. authorization until those States amend excluded from regulation under 40 CFR DOE treatment facilities treating LLMW their laws and become authorized for it. 261.4, Exclusions. Next, a generator to meet the proposed conditions for Moreover, because this rule will likely must determine whether the waste exemption are also subject to the waste be considered less stringent than the meets the regulatory description for a analysis and waste analysis plan current RCRA program (since the listed hazardous waste in subpart D of requirements of part 268. proposed rulemaking suggests some part 261, Lists of Hazardous Wastes. If If you are not a RCRA-permitted additional flexibility for disposal or the waste is not a listed hazardous hazardous waste treatment facility and permitting), States will not be required waste, the generator must then elect to employ the proposed exemption to adopt it. determine if the waste exhibits a procedures following promulgation of a We, however, encourage States to characteristic defined in subpart C of final LLMW rule, you must submit a adopt this conditional exemption. The part 261. RCRA part B permit application. conditional exemption provides a LLMW that meets the LDR definition regulatory enforcement mechanism for of non-wastewaters and exhibits toxicity 5. Will the Proposed Rule Change How States to bring against generators who characteristic must be treated to meet the RCRA Closure Requirements Apply may be out of compliance with the the LDR treatment standards and to My Disposal Facility? conditions. Under this regulatory decharacterized to meet the TC If you’re a disposal facility subject to framework, States would retain their regulatory limits at § 261.24 before it NRC regulations for disposal of LLW regulatory oversight and RCRA can exit RCRA Subtitle C and be and you accept conditionally exempt enforceability provisions over the non- disposed of as a nonhazardous solid LLMW the hazardous waste facility compliant claimant. A LLMW generator waste. Under the proposed conditional closure requirements do not apply. If, not meeting the conditions for exemption addressing disposal of however, it has been determined that exemption from hazardous waste LLMW, LLMW that is a TC waste must your disposal unit received RCRA- storage requirements and those for be treated to meet the LDR treatment exempt mixed waste from a generator exemption from the definition of standards, but not the TC regulatory who has violated the conditions for hazardous waste when LLMW disposal limit in instances where the TC limit is exemption, the disposal cell where the occurs at LLRWDFs licensed by the NRC lower than the LDR treatment level. exempted waste has been placed for or an Agreement State may be subject to permanent disposal may become a 2. Can a LLMW or Eligible NARM be a the penalties under the RCRA hazardous RCRA regulated Subtitle C unit subject Non-Hazardous Waste Under this waste enforcement program. to the requirements of 40 CFR parts 264 If States where LLRWDFs licensed by Proposal? or 265, including closure requirements, the NRC are located (for example, South LLMW or eligible NARM meeting the until you completed clean closure of the Carolina, Utah, and Washington) have LDR treatment standards in a ‘‘pure unit or unless all of the wastes in the concerns regarding post-disposal untreated form’’ (that is, as generated unit were delisted. You would normally releases of hazardous constituents in waste) would be a conditionally exempt be required to complete closure

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Off-site disposal of The Order defines ‘‘significant would allow you to delay closure of CERCLA remediation waste must regulatory action’’ as one that is likely your waste management units, while comply with all conditions of today’s to result in a rule that may: (1) have an continuing to receive the RCRA- proposal to take advantage of the annual effect on the economy of $100 exempted low-level mixed waste, if you exemption provided. These wastes must million or more or adversely affect in a meet certain conditions. (See ‘‘delay of go to a LLRWDF that is in compliance material way the economy, a sector of closure’’ options at 264.113(d) and with the 10 CFR Part 61 regulations and the economy, productivity, competition, 265.113(d). is licensed by the NRC or Agreement jobs, the environment, public health or We believe that the availability of a State. safety, or State, local, or tribal delay-of-closure option provides much Management of mixed waste during governments or communities; (2) create of the flexibility needed to allow for the on-site remediation waste must meet all a serious inconsistency or otherwise uninterrupted management of exempt applicable, or relevant and appropriate interfere with an action taken or waste, while providing assurance that requirements of Federal or State planned by another agency; (3) the protections afforded by the closure environmental laws or justify a waiver materially alter the budgetary impact of regulations for RCRA Subtitle C units, from those standards. This proposal entitlements, grants, user fees, or loan such as evaluation of soil and requires that the disposal facility be programs or the rights and obligations of groundwater at closure, are not lost. licensed and overseen by the NRC or recipients thereof; or (4) raise novel To minimize applicability of RCRA Agreement State. On-site CERCLA legal or policy issues arising out of legal hazardous waste management response action must comply with the mandates, the President’s priorities, or requirements, owners/operators of a substantive provisions of environmental the principles set forth in the Executive NRC or Agreement State licensed regulations and standards, but not the Order. LLRWDF may consider some administrative provisions. As such no Pursuant to the terms of Executive precautionary measures. For example, permit or license is required for on-site Order 12866, it has been determined you may require LLMW generators to activities. In accordance with the that this rule is a ‘‘significant regulatory provide you with any documentation National Contingency Plan and the action.’’ While this notice of proposed (e.g., test results, process knowledge) statute, today’s proposed regulation is rulemaking establishes few regulatory that the generators have used to make not expected to be an applicable requirements, it could ultimately result their LDR determination. Alternatively, requirement at most CERCLA sites in a rule that would satisfy one or more you may require LLMW generators to managing LLMW. However, relevant of the remaining criteria. Therefore, this provide a representative LLMW sample and appropriate determinations are a action is a ‘‘significant regulatory for independent waste testing and site-specific determination and these action’’ under the terms of E.O. 12866. analysis to verify that the waste indeed may or may not be deemed relevant and As such, this action was submitted to meets the LDR treatment levels. This appropriate given site-specific OMB for review. Changes made in would assist you to assure that a LLMW conditions. In general, we expect that response to OMB suggestions or recommendations will be documented generator has not mis-characterized the most CERCLA sites will meet both the in the public record. waste and/or to document compliance substantive provisions of the RCRA Under the terms of E.O. 12866, EPA with exemption requirements in the Subtitle C landfill requirements as well is to prepare for any significant event a RCRA program agency exercises as the 10 CFR 61 requirements for a regulatory action an assessment of its its enforcement authority with regard to LLRWDF. potential costs and benefits. If that your facility. 2. How Might Clean Air Act Regulations action satisfies the first of the criteria 6. How Does the Conditional Exemption be Affected? listed above, this assessment must Relate to RCRA Air Emission Standards? include, to the extent feasible, a This rule will not affect Clean Air Act quantification of these costs and Under this proposal LLMW or eligible regulations. LDR treatment of LLMW or benefits, the underlying analyses NARM meeting LDR treatment eligible NARM remains subject to the air supporting such quantification, and an standards is not likely to release volatile emission standards applicable to assessment of the costs and benefits of air emissions. Thus, it would be exempt hazardous waste treatments under reasonably feasible alternatives to the from RCRA Subtitle C regulations, RCRA. planned regulation. This proposed including the air emission standards. rulemaking is expected to yield net Once a LLMW or eligible NARM is no 3. How Might Clean Water Act benefits to society, because of reduced longer regulated as hazardous, any unit Regulations be Affected? waste management and administrative in which the waste is managed This rule will not affect Clean Water costs for both generators of mixed waste (assuming no other hazardous waste Act regulations. Any water discharges and regulatory agencies, and reduced management in that unit) is no longer from LDR treatment of LLMW or eligible worker exposures. A summary NARM remain subject to water subject to RCRA Subtitle C regulations, description of costs and benefits discharge standards applicable to including 40 CFR Parts 264 and 265, associated with this proposal appears in Subparts AA, BB, and CC. hazardous waste treatment under RCRA. section VII. An initial regulatory impact B. What is the Relationship of this Rule X. Regulatory Assessment analysis has been prepared and is to Other Environmental Programs? Requirements available in the docket for today’s proposed rulemaking. EPA is requesting 1. How are CERCLA Actions Affected by A. Executive Order 12866: comment on the costs and benefits of this Proposal? Determination of Significance any of the possible regulatory changes The affect of today’s proposed Under Executive Order (E.O.) 12866, discussed in this proposed rulemaking, regulations on Comprehensive (58 FR 51,735 (October 4, 1993)) the as well as on appropriate methodologies

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 63494 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules for assessing them. We would like to explained above, today’s proposal group or low-income group affected by hear from States, Tribes, members of the would provide regulatory flexibility for alternatives described in this proposed public, and the regulated community. generators and treaters of Low Level rulemaking has an opportunity to Mixed Waste by establishing a review and comment on the proposal. B. Executive Order 13132: Federalism conditional exemption from RCRA D. Executive Order 13045: Protection of Executive Order 13132, entitled Subtitle C requirements, which States Children From Environmental Health ‘‘Federalism’’ (64 FR 43255, August 10, would not be required to adopt. Thus, Risks and Safety Risks 1999), requires EPA to develop an the requirements of section 6 of the accountable process to ensure Executive Order do not apply to this Protection of Children from ‘‘meaningful and timely input by State rule. Environmental Health Risks and Safety and local officials in the development of Risks (62 FR 19885, April 23, 1997) regulatory policies that have federalism C. Executive Order 12898: applies to any rule that: (1) is implications.’’ ‘‘Policies that have Environmental Justice determined to be ‘‘economically federalism implications’’ is defined in Under Executive Order 12898, significant’’ as defined under E.O. the Executive Order to include ‘‘Federal Actions to Address 12866, and (2) concerns an regulations that have ‘‘substantial direct Environmental Justice in Minority environmental health or safety risk that effects on the States, on the relationship Populations and Low-Income EPA has reason to believe may have a between the national government and Populations’’ as well as through EPA’s disproportionate effect on children. If the States, or on the distribution of April 1995, ‘‘Environmental Justice the regulatory action meets both criteria, power and responsibilities among the Strategy, OSWER Environmental Justice the Agency must evaluate the various levels of government.’’ Under Task Force Action Agenda Report’’ and environmental health or safety effects of Executive Order 13132, EPA may not National Environmental Justice the planned rule on children, and issue a regulation that has federalism Advisory Council, EPA has undertaken explain why the planned regulation is implications, that imposes substantial to incorporate environmental justice preferable to other potentially effective direct compliance costs, and that is not into its policies and programs. EPA is and reasonably feasible alternatives required by statute, unless the Federal committed to addressing environmental considered by the Agency. government provides the funds justice concerns, and is assuming a This proposed rulemaking is not necessary to pay the direct compliance leadership role in environmental justice subject to E.O. 13045 because it is not costs incurred by State and local initiatives to enhance environmental an economically significant rule as governments, or EPA consults with quality for all residents of the United defined by E.O. 12866. We do not State and local officials early in the States. The Agency’s goals are to ensure expect this rule to disproportionately process of developing the proposed that no segment of the population, affect children because we do not expect regulation. EPA also may not issue a regardless of race, color, national origin, children to be entering LLMW storage regulation that has federalism or income, bears disproportionately areas which are locked and have limited implications and that preempts State high and adverse human health and access requirements imposed by NRC. law unless the Agency consults with environmental effects as a result of Similarly, disposal facilities must meet State and local officials early in the EPA’s policies, programs, and activities. NRC regulations for public safety thus process of developing the proposed To address this goal, EPA considered reducing the likelihood of exposure of regulation. the impacts of this proposed rulemaking the nearby population including If EPA complies by consulting, on low-income populations and children. Executive Order 13132 requires EPA to minority populations. EPA believes that E. Executive Order 13084: Consultation provide to the Office of Management due to low estimated waste volumes and Coordination With Indian Tribal and Budget (OMB), in a separately stored under the storage exemption, any Governments identified section of the preamble to the potential risk resulting from this rule, a federalism summary impact proposal would be very small. In Under E.O. 13084, EPA may not issue statement (FSIS). The FSIS must include addition, this waste would be stored a regulation that is not required by a description of the extent of EPA’s according to another regulatory statute, that significantly or uniquely prior consultation with State and local authority (NRC) which offers affects the communities of Indian tribal officials, a summary of the nature of comparable protection. Under the governments, and that imposes their concerns and the agency’s position disposal proposal, the exempted waste substantial direct compliance costs on supporting the need to issue the would be disposed following NRC those communities, unless the Federal regulation, and a statement of the extent regulations which provide comparable government provides the funds to which the concerns of State and local protection and low risk. The Agency necessary to pay the direct compliance officials have been met. For final rules does not currently have data on the costs incurred by the tribal subject to Executive Order 13132, EPA demographics of populations governments, or EPA consults with also must submit to OMB a statement surrounding facilities which generate those governments. This order requires from the agency’s Federalism Official low-level mixed waste that potentially EPA to provide to the Office of certifying that EPA has fulfilled the could be affected if today’s proposed Management and Budget, in a separately Executive Order’s requirements. rule were finalized. However, we identified section of the preamble to the This proposed rule will not have believe that the LLMW generators rule, a description of the extent of EPA’s substantial direct effects on the States, storing the waste and the LLRWDFs do prior consultation with representatives on the relationship between the national not appear to be concentrated in areas of affected tribal governments, a government and the States, or on the where the minority or the disadvantaged summary of the nature of their concerns, distribution of power and groups reside. Therefore, we believe and a statement supporting the need to responsibilities among the various there would not be disproportionately issue the regulation. In addition, E.O. levels of government as specified in high and adverse environmental or 13084 requires EPA to develop an Executive Order 13132, because it will economic impact on any minority or effective process that permits elected not impose any requirements on States low-income group, or on any other type officials and other representatives of or any other level of government. As of affected community. Any minority Indian tribal governments ‘‘to provide

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules 63495 meaningful and timely input in the regulatory actions on State, local, and unless to do so would be inconsistent development of regulatory policies on tribal governments and the private with applicable law or otherwise matters that significantly or uniquely sector. Under § 202 of the UMRA, EPA impractical. Voluntary consensus affect their communities.’’ Today’s generally must prepare a written standards are technical standards (for proposal does not significantly or statement, including a cost-benefit example, materials specifications, test uniquely affect the communities of analysis, for proposed and final rules methods, sampling procedures, and Indian tribal governments. There is no with ‘‘Federal mandates’’ that may business practices) that are developed or impact to tribal governments as the result in expenditures to State, local, adopted by voluntary consensus result of generator’s choosing to claim a and tribal governments, in the aggregate, standards bodies. The NTTAA directs conditional exemption for storage units or to the private sector, of $100 million EPA to provide Congress, through OMB, containing low-level mixed waste. or more in any one year. Before explanations when the Agency decides Accordingly, the requirements of promulgating an EPA rule for which a not to use available and applicable section 3(b) of Executive Order 13084 written statement is needed, § 205 of the voluntary consensus standards. This do not apply to this rule. UMRA generally requires EPA to proposed rulemaking does not involve identify and consider a reasonable technical standards. In 1997, EPA in F. The Regulatory Flexibility Act as number of regulatory alternatives and cooperation with NRC developed a Amended by the Small Business adopt the least costly, most cost- testing guidance for sampling and Regulatory Enforcement Fairness Act of effective or least burdensome alternative testing of mixed waste. Facilities subject 1996 that achieves the objectives of the rule. to this rulemaking may continue to use Pursuant to the Regulatory Flexibility The provisions of § 205 do not apply that guidance which allows analysis of Act (5 U.S.C. 601 et seq., as amended by when they are inconsistent with smaller samples, thus reducing the Small Business Regulatory applicable law. Moreover, § 205 allows exposure of workers to radiation Enforcement Fairness Act (SBREFA) of EPA to adopt an alternative other than hazards. 1996) whenever an agency is required to the least costly, most cost-effective or I. Paperwork Reduction Act publish a notice of rulemaking for any least burdensome alternative if the proposed or final rule, it must prepare Administrator publishes with the final Under the implementing regulations and make available for public comment rule an explanation why that alternative for the Paperwork Reduction Act, an a regulatory flexibility analysis that was not adopted. Before EPA establishes agency is required to certify that any describes the effect of the rule on small any regulatory requirements that may agency-sponsored collection of entities (i.e., small businesses, small significantly or uniquely affect small information from the public is necessary organizations, and small governmental governments, including tribal for the proper performance of its jurisdictions). However, no regulatory governments, it must have developed functions, has practical utility, is not flexibility analysis is required if the under § 203 of the UMRA a small unnecessarily duplicative of head of an agency certifies the rule will government agency plan. The plan must information otherwise reasonably not have a significant economic impact provide for notifying potentially accessible to the agency, and reduces to on a substantial number of small affected small governments, enabling the extent practicable and appropriate entities. officials of affected small governments the burden on those required to provide SBREFA amended the Regulatory to have meaningful and timely input in the information (5 CFR 1320.9). Any Flexibility Act (RFA) to require Federal the development of EPA regulatory proposed collection of information must agencies to provide a statement of the proposals with significant Federal be submitted, along with this factual basis for certifying that a rule intergovernmental mandates, and certification, to the Office of will not have a significant economic informing, educating, and advising Management and Budget for approval impact on a substantial number of small small governments on compliance with before it goes into effect. entities. EPA has examined this the regulatory requirements. The UMRA The information collection proposed rulemaking’s potential effects excludes from the definition of ‘‘Federal requirements in this proposed rule have on small entities as required by the private sector mandate’’ duties that arise been submitted for approval to the Regulatory Flexibility Act and has from participation in a voluntary federal Office of Management and Budget determined that this action will not program and also generally excludes (OMB) under the Paperwork Reduction have a significant economic impact on from the definition of ‘‘Federal Act, 44 U.S.C. 3501 et seq. An a substantial number of small entities. intergovernmental mandate’’ duties that Information Collection Request (ICR) The overall economic effect of this arise from participation in a voluntary document has been prepared by EPA regulation has been determined to be a federal program. The Agency’s analysis (ICR No. 1922.01) and a copy may be net savings to all regulated entities who of compliance with the Unfunded obtained from Sandy Farmer, OPPE choose to avail themselves of a Mandates Reform Act (UMRA) of 1995 Regulatory Information Division; U.S. conditional exemption for storage or found that the proposed rulemaking Environmental Protection Agency disposal of the mixed wastes they imposes no enforceable duty on any (2137); 401 M St., S.W.; Washington, generate. Since this rule will not impose State, local, or tribal governments or the D.C. 20460 or by calling (202) 260–2740. additional costs on any entities, I hereby private sector. Thus, today’s proposal is This information collection is certify that this rule will not have a not subject to the requirements of § 202 required to provide documentation of significant economic impact on a and § 205 of UMRA. conditional exemption from RCRA substantial number of small entities. Subtitle C requirements. The H . National Technology Transfer and This rule, therefore, does not require a exemptions from RCRA Subtitle C under Advancement Act of 1995 regulatory flexibility analysis. today’s proposed action would require Section 12(d) of the National no government approval before being G. Unfunded Mandates Reform Act Technology Transfer and Advancement effective. As such, information Title II of the Unfunded Mandates Act of 1995 (‘‘NTTAA’’), Pub L. No. collection, maintenance and reporting Reform Act of 1995 (UMRA), P.L. 104– 104–113, § 12(d) (15 U.S.C. 272 note) issues are especially important due to 4, establishes requirements for Federal directs EPA to use voluntary consensus the self-implementing nature of this agencies to assess the effects of their standards in its regulatory activities action. Successful implementation of

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 63496 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules today’s proposal will depend upon the licensed by NRC or NRC Agreement maintaining information, and disclosing documentation, certification and States. If the generator or treater of and providing information; adjust the verification provided by the information LLMW chooses not to claim an existing ways to comply with any collection. exemption, they remain subject to the previously applicable instructions and The general authority for this existing hazardous waste disposal requirements; train personnel to be able proposal is § 2002(a), 3001, 3002, 3004, requirements including compliance to respond to a collection of 3006 and 3007 of the Solid Waste with LDR treatment standards. information; search data sources; Disposal Act of 1970, as amended by the Some of the proposed requirements complete and review the collection of Resource Conservation and Recovery contained in today’s action entail new information; and transmit or otherwise Act of 1976 (RCRA), as amended by the reporting and recordkeeping disclose the information. Hazardous and Solid Waste requirements for members of the Comments are requested on the need Amendments of 1984 (HSWA), 42 regulated public, if such change is for this information, the accuracy of the U.S.C. 6912(a), 6921, 6922, 6924, and adopted. EPA is interested in comments provided burden estimates, and any 6926. To the extent that this rule on any and all aspects of potential suggested methods for minimizing imposes any information collection paperwork requirements, and in respondent burden, including through requirements under existing RCRA particular on how they should be the use of automated collection regulations promulgated in previous structured to fulfill the requirements techniques. Send comments on the ICR rulemakings, those requirements have that they have practical utility, are not to the Director, OPPE Regulatory been approved by the Office of unnecessarily duplicative of other Information Division; U.S. Management and Budget (OMB) under available information, and are the least Environmental Protection Agency the Paperwork Reduction Act, 44 U.S.C. burdensome necessary to ensure that the (2137); 401 M St., S.W.; Washington, DC 3501 et seq., and have been assigned disposal of conditionally exempted low 20460; and to the Office of Information OMB control numbers 2050–0009 (ICR level mixed waste is safely managed. and Regulatory Affairs, Office of If generators choose to avail no. 1573, Part B Permit Application, Management and Budget, 725 17th St., themselves of the regulatory flexibility Permit Modifications, and Special N.W., Washington, DC 20503, marked discussed in this proposal, they will be Permits); 2050–0120 (ICR 1571, General ‘‘Attention: Desk Officer for EPA.’’ subject to notification and Facility Hazardous Waste Standards); Include the ICR number in any recordkeeping requirements described 2050–0028 (ICR 261, Notification of correspondence. Since OMB is required above. However, such notification and Hazardous Waste Activity); 2050–0034 to make a decision concerning the ICR (ICR 262, RCRA Hazardous Waste recordkeeping would replace the between 30 and 60 days after November Permit Application and Modification, paperwork burden required for 19, 1999, a comment to OMB is best Part A); 2050–0039 (ICR 801, treatment and storage permits for their assured of having its full effect if OMB Requirements for Generators, low-level mixed wastes if they did not receives it by December 20, 1999. The Transporters, and Waste Management claim a conditional exemption. States final rule will respond to any OMB or Facilities under the Hazardous Waste (but not Tribes) would have additional public comments on the information Manifest System); 2050–0035 (ICR 820, recordkeeping requirements for collection requirements contained in Hazardous Waste Generator Standards); generators’ claims for conditional this proposal. and 2050–0024 (ICR 976, 1997 exemption notices for storage units, and Hazardous Waste Report). review of the self-implementing XI. List of Comments Being Requested An Agency may not conduct or reinstatement notices for generators who By EPA in This Proposal sponsor, and a person is not required to fail to meet all the conditions for storing respond to a collection of information mixed waste and correct any violations. In this proposal, we are seeking unless it displays a currently valid OMB We have prepared a full Information comment on several issues that concern control number. The OMB control Collection Request (ICR) in support of stakeholders potentially affected by this numbers for EPA’s regulations are listed today’s action. The total annual public rule, and the public. Please note, even in 40 CFR parts 9 and 48 CFR chapter burden associated with this exemption if you commented on the Advance 15. This rule proposes new information is estimated to average 3.6 hours per Notice of Proposed Rulemaking (64 FR collection requirements subject to OMB respondent. The reporting burden is 10063–73, March 1, 1999), EPA is review under the Paperwork Reduction estimated to average 1.9 hours per seeking your comments on this Act of 1995, 44 U.S.C. 3501 et seq. respondent annually, and includes time proposal. Even if you submitted Facilities must notify EPA or the for reading the regulations and comments on the March 1, 1999 ANPR, Authorized State of their claim for preparing and submitting notifications. you must submit comments on this conditional exemption for a storage unit The recordkeeping burden is estimated revised and expanded proposal by the to be eligible for a conditional to average 1.7 hours per respondent deadline listed above in order to have exemption for stored low-level mixed annually, and includes the time for your comments considered for this waste. If they do not choose to claim a recording the results of inventories and proposed rulemaking. Below, we conditional exemption, generators will inspections and maintaining records provide a list of these comment have to comply with the existing pertaining to the mixed waste requests, cross-referenced with the Subtitle C recordkeeping and reporting exemption. applicable section of the proposal. requirements for the low-level mixed Burden means the total time, effort, or Storage wastes they generate. This rule also financial resources expended by persons proposes notification requirements for to generate, maintain, retain, or disclose —We seek comment on ways we generators or treaters of LLMW and or provide information to or for a propose to address the issue of dual eligible NARM seeking a conditional Federal agency. This includes the time regulation of LLMW storage, exemption from the definition of needed to review instructions; develop, treatment, transportation, and hazardous waste which would allow acquire, install, and utilize technology disposal. (III.A.) disposal of the waste meeting the and systems for the purposes of —We would appreciate comments conditions for exemption in low-level collecting, validating, and verifying regarding the standard to use for radioactive waste disposal facilities information, processing and determining when the decayed waste

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would reenter RCRA Subtitle C —We request comment on whether, for 8. National Profile on Commercially management. (V.A.1.) any reason, this conditional Generated Low-Level Radioactive Mixed —We invite comment on whether a time exemption should apply only to Waste, NUREG/CR–5938, December 1992. limit may be appropriate, and, if so, hazardous soils contaminated with 9. Meeting Notes for EPA Meeting with Low-Level Radioactive Waste Disposal on what basis that time limit might be radioactive waste and treated to LDR Facilities, December 7, 1998. established. (V.A.2.) standards derived from the original 10. RCRA Hazardous Constituents and —We invite comment on how waste waste codes, rather than to soils Waste Codes Associated with Mixed Waste, being stored for decay under 10 CFR treated to alternative soil treatment December 1997. 20.2001(a)(2) and 10 CFR part 35 can standards. (VI.E.1) 11. Joint State/EPA Workshop on Mixed be completely decayed while at the —We are asking for public comments on Waste Rulemaking, October 7–9, 1998, same time reenter RCRA Subtitle C the approach of a state approved site- Meeting Summary. without a gap in time during which specific, risk-based alternative to 12. Comparison of NRC and EPA’s Waste Tracking and Related Record Keeping the waste is not regulated as either a allow the disposal of hazardous waste contaminated with radioactivity in Requirements, July 1999. hazardous or radioactive. Please 13. Technical Alternatives Considered for indicate in your comment what mixed any LLRWDFs including DOE’s Evaluating Protectiveness of Low-Level wastes you generate that have LLRWDFs. (VI.F.) Waste Disposal Facilities, July 21, 1999. radionuclides with activity levels —We seek comments on the site- 14. Regulatory Impact Analysis: Relief from which would not qualify for the specific risk-based variance approach, Regulatory Requirements for Storage and conditional exemption we are and the types of guidance documents Disposal of Mixed Waste, July 1999. proposing if it were based on needed by EPA for site-specific risk 15. Summary of Public Comments on whichever occurred first— ten half- modeling. (VI. F.) ‘‘Contingent Management of Mixed Waste’’ Submitted in Response to the 1995 HWIR lives of decay or not registering above —We also seek comments on whether this approval would be preferred over Proposal, July 1999. background levels. Also indicate how 16. The Management of Mixed Low-Level this limitation would affect your the proposed conditional exemption. (VI. F.) Radioactive Waste in the Nuclear Power management of the waste. (V.A.2). Industry, NUMARC/NESP–006, Nuclear —We are soliciting comments on —We seek comment on whether this Management Resources Council, Inc., condition should be: broad (and whether we need to consider, as a Washington, D.C., January 1990. include the loss of the exemption if condition for exemption, groundwater 17. Regulatory Impact Analysis: Relief from any LLW storage requirement of the monitoring for chemical releases. (VI. Regulatory Requirements for Storage and NRC or Agreement State license is not G.) Disposal of Mixed Waste, Background —We are requesting groundwater Documents, August 1999. met); or more specific (and limit the monitoring data from LLRWDFs. (VI. loss of the exemption to those List of Subjects in 40 CFR Part 266 G.) violations which may result in an —We request comment on whether for Environmental protection, Hazardous environmental impact). (V.B.2.(b)) any reason under this conditional waste, Reporting and recordkeeping —We request comment regarding both exemption, we should require requirements, Waste treatment and the definition of ‘‘on-site’’ and the LLRWDFs to provide RCRA-like disposal. appropriateness of extending a financial assurance for cleanup of Dated: October 29, 1999. conditional exemption to facilities RCRA hazardous constituents. (VI. G.) that own/operate storage facilities that Carol M. Browner, do not meet our current definition of XII. Supporting Documents Administrator. ‘‘on-site.’’(V.B.2.(c)) 1. EPA—Consent Decree. HWIR Settlement For the reasons set forth in the —We also seek comment on whether the Agreement, April 11, 1997. preamble 40 CFR part 266 is proposed conditional exemption should include 2. EPA—Side-bar letter to EEI/USWAG to be amended as follows: a storage facility which serves as a dated April 7, 1997. consolidation point for single entity. 3. ‘‘Review of Waste Management Practices PART 266ÐSTANDARDS FOR THE (V.B.2.(c)) and Compliance History at Nuclear Power MANAGEMENT OF SPECIFIC —We request comment on whether we Plants and Other Entities that Generate Low- HAZARDOUS WASTES AND SPECIFIC Level Mixed Waste.’’ April 12, 1999. TYPES OF HAZARDOUS WASTE should include in the conditional 4. ‘‘Comparison of the EPA’s RCRA exemption for storage those mixed Requirements and the NRC’s Licensing MANAGEMENT FACILITIES waste treatment facilities that manage Requirements for the On-site Treatment (In 1. The authority citation for part 266 Tanks and Containers) and Storage of Low- wastes from other generators. (V.B.2) continues to read as follows: —We are interested in additional Level Mixed Wastes at Nuclear Facilities’’, information regarding the safety of September 30,1999. Authority: 42 U.S.C. 6905, 6912(a), commercial TSDFs that could provide 5. Comment Summary Document— 6921,6922, 6924, 6926, 6927, and 6934. Approach to Reinventing Regulations of 2. Part 266 is amended by adding a basis for expanding the scope of the Storing Mixed Low-Level Radioactive Waste; exemption to include off-site storage Advance Notice of Proposed Rulemaking subpart N to read as follows: at commercial TSDFs. (V.B.2) (ANPR), September 21,1999. Subpart NÐConditional Exemption for Low- Disposal 6. Report to Utility Solid Waste Activities Level Mixed Waste Storage, Treatment, Group and Utility Nuclear Waste Transportation and Disposal —We are seeking comment and Management Group on Comparative supporting information concerning Assessment of the Environmental Protection Terms the applicability of this proposal to Agency’s Regulations for Hazardous Waste Sec. hazardous waste contaminated with Tank Systems (40 CFR part 265, Subpart J) 266.210 What special definitions apply to NARM. (VI.B.1) and Comparable Nuclear Regulatory this subpart? Commission Requirements, July 1988. —We are seeking comment on whether 7. Technical Evaluation on Document for Storage Conditional Exemption and to provide for a 90-day waiting period the Disposal of Mixed Waste at Low-Level Eligibility during reclaiming of an exemption. Radioactive Waste Disposal Facilities, Draft 266.220 What does a conditional exemption (VI.D.4) Technical Background Document, July1999. for stored mixed waste do?

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266.225 What stored mixed wastes are Subpart NÐConditional Exemption for Mixed Waste Treatment Facility eligible? Low-Level Mixed Waste Storage and means a waste treatment facility 266.230 What must you do to qualify for a Disposal permitted by EPA or an Authorized storage exemption? State to treat hazardous waste and Terms Treatment licensed by the NRC or an Agreement State to manage radioactive waste. 266.235 What waste treatment does this § 266.210 What special definitions apply to exemption allow? this subpart? Naturally Occurring and/or This subpart uses the following Accelerator-produced Radioactive Loss of Conditional Exemption special definitions: Material (NARM) means radioactive 266.240 How could you lose your Agreement State means a state that materials not covered under the AEA conditional exemption? has entered into an agreement with the that are naturally occurring or produced 266.245 If you lose the exemption, can it be NRC under subsection 274b of the by an accelerator. The naturally reclaimed? Atomic Energy Act of 1954, as amended occurring radioactive material (NORM) Record Keeping and Reentry Into RCRA (68 Stat. 919), to assume responsibility is defined below. NARM is regulated by for regulating within its borders source, the States under State law, or by DOE 266.250 What records must you keep under DOE Orders. besides those required by your NRC or special nuclear, or byproduct material Agreement State license? in quantities not sufficient to form a Naturally Occurring Radioactive 266.255 When is your low-level mixed critical mass. Material (NORM), a subset of NARM, waste no longer eligible for the Storage Eligible NARM means NARM that refers to materials not covered under the Conditional Exemption? meets the acceptance criteria of a AEA whose radioactivity has been LLRWDF licensed by NRC or an enhanced usually by mineral extraction Transportation and Disposal Conditional or processing activities. Exemption Agreement State in accordance with 10 CFR part 61 and is contaminated by NRC means the Nuclear Regulatory 266.305 What does the Transportation and hazardous waste, and therefore, is Commission. or its duly authorized Disposal Conditional Exemption do? representative (for example, an NRC 266.310 Is your waste eligible for the eligible for the transportation and disposal conditional exemption. Agreement State that regulates Transportation and Disposal Conditional management of low-Level waste). Exemption? Facility as defined in 40 CFR 260.10. 266.315 What are the conditions you must Hazardous waste means any material RCRA program agency means EPA, or meet? which is defined to be hazardous waste the state agency authorized to in accordance with 40 CFR 261.3, implement the RCRA program. Treatment Standard for Disposal ‘‘Definition of Hazardous Waste.’’ We, within this subpart, means the 266.320 What treatment standard must your Land Disposal Restriction (LDR) EPA, or the EPA Regional Office. waste, either as-generated or treated, treatment standards means treatment You means a generator, treater, or meet? standards, under 40 CFR part 268, that other handler of low-level mixed waste Notification, Transportation, and Manifest a RCRA hazardous waste must meet except for the storage exemption before it can be disposed on land in a provisions in § 266.220–266.255 where 266.325 Before shipping exempt waste, it means only a generator. whom must you notify? RCRA hazardous waste disposal 266.330 How must you notify them? landfill. Storage Conditional Exemption and 266.335 Must you wait for any approvals? License means a license issued by the Eligibility 266.340 What if the information in your Nuclear Regulatory Commission, or notification changes? NRC Agreement State, to users that § 266.220 What does a conditional 266.345 What are the transportation and manage radionuclides regulated by exemption for stored mixed waste do? manifest conditions you must meet? NRC, or NRC Agreement States, under A conditional exemption exempts 266.350 When does the exemption take authority of the Atomic Energy Act of certain low-Level mixed waste from the effect? 1954, as amended. regulatory definition of hazardous waste Low-Level Mixed Waste (LLMW) is a Disposal Facility in § 261.3 during storage if you, as the low-Level radioactive waste containing generator, have a storage unit and waste 266.355 Where must you dispose of exempt a RCRA hazardous waste component. which meet specified conditions in waste to keep this exemption? Low-Level radioactive waste (LLW) is §§ 266.225 through 266.255. 266.360 Must your waste be containerized a radioactive waste containing source, before disposal at the LLRWDF to keep special nuclear, or by-product material § 266.225 What stored mixed wastes are this exemption? which is not classified as high-level eligible? Record Keeping radioactive waste, transuranic waste, Low-Level mixed waste defined in 266.365 What records must you keep at spent nuclear fuel, byproduct material § 266.210 is eligible for a conditional your facility and for how long? as defined in section 11(e)(2) of the exemption if managed subject to NRC or 266.370 When must you make records Atomic Energy Act or NARM. (See also Agreement State regulations, and if it is: available? NRC definition of ‘‘waste’’ at 10 CFR (a) Generated at your facility (Mixed 61.2) waste generated at another facility and Loss of Conditional Exemption Low-Level Radioactive Waste Disposal shipped to your facility for storage or 266.375 How will your RCRA program Facility (LLRWDF) means a disposal treatment requires a storage permit and agency verify your Transportation and facility licensed by the NRC or an is ineligible for the storage exemption.); Disposal Conditional Exemption? Agreement State for the disposal of low- (b) Stored on-site in a tank or 266.380 How could you lose your Level waste. container meeting the requirements of Transportation and Disposal Conditional Exemption? Mixed Waste means a waste that your NRC or Agreement State license for 266.385 If you lose the Transportation and contains both RCRA hazardous waste storing low-Level waste; and Disposal Conditional Exemption can it and source, special nuclear, or by- (c) Stored in compliance with be reclaimed? product material subject to the Atomic chemical compatibility requirements of Energy Act of 1954, as amended. a tank or container (See § 264.177, or

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§ 264.199 of this chapter), or (§ 265.177, Loss of Conditional Exemption Record Keeping and Reentry Into or § 265.199 of this chapter). RCRA § 266.240 How could you lose your § 266.230 What must you do to qualify for conditional exemption? § 266.250 What records must you keep a storage exemption? (a) The conditional exemption applies besides those required by your NRC or You must meet all the following only while all the conditions are met. Agreement State license? conditions. (See § 266.230) You must keep your initial (b) You automatically lose your (a) Have a valid NRC or Agreement notification records and records of your exemption for failure to meet any of the State license. LLMW inventories and inspections. At conditions. (See § 266.230). (b) Comply with the requirements of a minimum you must inventory waste (c) You must report to us and the NRC your license for storing low-Level mixed annually, inspect quarterly, and update waste. or Agreement State in writing of any failure to meet a condition within 30 your records of conditionally exempt (c) Meet the eligibility requirements of LLMW at least quarterly. You must § 266.225. days of learning of the failure. If the failure may endanger human health or maintain storage records for three years (d) Notify us (EPA) by certified mail, after the waste is sent for disposal, or in return receipt requested, that you claim the environment, you must also notify accordance with NRC requirements a conditional exemption for a storage us, EPA or RCRA program agency orally under 10 CFR part 20, whichever is unit containing low-Level mixed waste. within 24 hours. Failures that endanger longer. You must notify us of your claim either human health or the environment within 90 days of the effective date of include, but are not limited to, § 266.255 When is your low-Level mixed this rule in your State, or within 90 days discharge of a CERCLA reportable waste no longer eligible for the Storage of when a storage unit is first used to quantity or other leaking or exploding Conditional Exemption? store LLMW for which you claim a tanks or containers, or detection of conditional exemption. radionuclides or hazardous constituents (a) When your LLMW has met the (e) Certify that facility personnel who in the leachate collection system of a requirements of your NRC or Agreement manage stored mixed waste have been storage area. If the failure may endanger State license for decay-in-storage and trained in a manner that ensures that the human health or the environment, you can be disposed of as non-radioactive low-Level mixed waste is safely must follow the provisions of your waste, then the conditional exemption managed and includes training in emergency contingency plan. for storage no longer applies. At that chemical waste management and point your waste is subject to hazardous § 266.245 If you lose the exemption, can it waste regulation as ‘‘newly generated’’ hazardous materials incidence response be reclaimed? as outlined in the personnel training hazardous waste under the relevant (a) You may reclaim your exemption sections of 40 CFR Parts 260–271. standards found in 40 CFR 265.16(a)(3). if: (f) Inventory your stored low-level (1) You again meet the requirements (b) When your waste is transported mixed waste at least annually; inspect it of § 266.230; and off-site for any reason other than to a at least quarterly for compliance with (2) You send us, the RCRA program LLRWDF under the Disposal the other conditions of the paragraph; agency, a notice that you are reclaiming Conditional Exemption at § 266.305, it update your inventory records of the exemption. The notice must do the is no longer eligible for the Storage conditionally exempt LLMW quarterly; following: Conditional Exemption. and maintain records for three years (i) Explain the circumstances of each after the waste is sent for disposal, or in Transportation and Disposal failure. Conditional Exemption accordance with NRC requirements, (ii) Certify that you have corrected whichever is longer. each failure that caused you to lose the § 266.305 What does the Transportation (g) Maintain an accurate emergency exemption and that your waste again and Disposal Conditional Exemption do? plan and provide it to all local meets all the conditions as of the date The conditional exemption for authorities who may have to respond to you specify. an emergency. Your plan must describe (iii) Demonstrate that each failure is transportation and disposal gives you— emergency response arrangements with not likely to recur because of specific the mixed waste generator, treater, or local authorities; describe evacuation steps (list them) that you have other handler—an alternate way to plans; list the names, addresses, and implemented in your LLMW manage your low-Level mixed waste. If telephone numbers of all facility compliance activities. this waste meets Land Disposal personnel qualified to work with local (iv) Include any other information you Restrictions treatment standards, and is authorities as emergency coordinators; want us to consider when we review subject to NRC or Agreement State’s and list emergency equipment. (See 40 your notice reclaiming the exemption. transportation, manifest and disposal CFR part 265, subpart D.) (b) We may terminate a reclaimed regulations, it will be exempted from RCRA Subtitle C hazardous waste Treatment conditional exemption if we find that your claim is inappropriate based on manifest, transportation and disposal § 266.235 What waste treatment does this factors such as: you have failed to regulations. Currently, low-Level mixed exemption allow? correct the problem; you explained the waste meeting LDR treatment standards Allowable treatment of your low- circumstances of the violation must be managed in accordance with Level mixed waste includes only on-site unsatisfactorily; or you failed to show both NRC or Agreement State’s and treatment within a tank or container that the violation is unlikely to recur. In RCRA Subtitle C’s transportation, covered by the provisions of your NRC reviewing a reclaimed conditional manifest and disposal regulations. To or Agreement State license. The exemption under this section, we may obtain and keep the Transportation and treatment may include solidification, add requirements to the exemption to Disposal Conditional Exemption, you neutralization, or other forms of ensure and document proper storage to must meet all conditions under the stabilization, but excludes thermal protect human health or the Transportation and Disposal treatment, such as incineration. environment. Conditional Exemption at all times.

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§ 266.310 Is your waste eligible for the (3) The NRC or Agreement State LLRWDF once certified mail receipts Transportation and Disposal Conditional regulating the LLRWDF where the waste have come back to you from all parties Exemption? will be disposed. required to be notified. To be eligible for this exemption, your (b) You must also notify the LLRWDF waste must be: receiving your waste, in writing, every § 266.340 What if the information in your notification changes? (a) A low-Level radioactive waste, or time you plan to ship any exempted NARM waste as defined in § 266.210 waste to the LLRWDF. (a) Submit any change in any which meets the acceptance criteria of information submitted under § 266.330 a LLRWDF licensed by the NRC or an § 266.330 How must you notify them? to all parties you notified initially. Agreement State in accordance with 10 (a) You must notify all parties in (b) Do it within 10 business days of CFR part 61; and § 266.325(a) by sending your first learning of a change. (b) A RCRA hazardous waste as notification by certified mail with return § 266.345 What are the transportation and defined in 40 CFR 261.3. receipt requested. A ‘‘return receipt’’ is manifest conditions you must meet? any document that demonstrates the Even if you self-regulate under the § 266.315 What are the conditions you receipt of the notification package by must meet? authority of the Atomic Energy Act, you the regulatory agencies. It can be the must meet the NRC or Agreement State You must do the following to obtain receipt of delivery by the U.S. Postal transportation requirements in 10 CFR and keep the Transportation and Service, or a mail delivering service. 71.5, and the NRC or Agreement State Disposal Conditional Exemption: Include at least the following in the manifest requirements in 10 CFR (a) Meet and continue to meet LDR notice: 20.2006. Your exempted waste is not treatment standards per § 266.320. (1) A dated cover letter signed by an subject to the RCRA hazardous-waste (b) Have received written officer or authorized employee that transportation and manifest confirmation that you have notified the claims the exemption and includes the requirements. designated regulatory agencies of the following: exemption per § 266.325(a), (i) Your facility’s name, address, and § 266.350 When does the exemption take § 266.330(a), and § 266.340. RCRA ID number. effect? (c) Even if you self-regulate under the (ii) The RCRA hazardous waste codes. Your waste becomes exempt from Atomic Energy Act, you must manifest (2) A brief, general description of the RCRA Subtitle C manifest, and transport the waste according to process or operation that generated the transportation and disposal once you do NRC regulations per § 266.345. waste. the following: (d) Ensure the exempted waste is (3) The quantity of each waste stream (a) Your waste meets LDR treatment containerized per § 266.360, and you will ship for disposal and an standards; disposed at a designated LLRWDF per estimate of the average monthly, (b) You have received return receipts § 266.355. maximum monthly, average annual, and that you have notified the specified (e) Keep and submit records of the maximum annual quantities of the regulatory agencies; exemption as required under § 266.365, waste for which you are claiming an (c) You have manifested the waste and § 266.370. exemption. according to NRC or Agreement State (4) Name, address, and NRC or manifest regulation at 10 CFR 20.2006; Treatment Standard For Disposal Agreement State license number of the and § 266.320 What treatment standard must LLRWDF that has agreed to receive your (d) You have placed the waste on a your waste, either as-generated or treated, waste. transportation vehicle bound for an meet? (5) A certification for compliance with LLRWDF licensed by NRC or an Agreement State. Your LLMW or eligible NARM must LDR treatment standards as follows: meet, or be treated to meet, LDR (i) A generator at § 268.7(a)(3)(i) of Disposal Conditions treatment standards specified in this chapter. §§ 268.40–268.49 of this chapter. The (ii) Treatment facilities at § 268.7(b)(4) § 266.355 Where must you dispose of exempted waste to keep this exemption? waste must also meet RCRA definition of this chapter. of non-wastewater as specified in 40 (6) A certification signed by you, or You must dispose of your RCRA- CFR 268.2(d) of this chapter prior to your authorized representative, that the exempted waste in a LLRWDF licensed disposal. information contained in the by NRC or Agreement State under 10 notification package is true, accurate, CFR part 61. Notification, Transportation and and complete. Manifest (b) You must notify the LLRWDF by § 266.360 Must your waste be certified mail with return receipt containerized before disposal at the § 266.325 Before shipping exempt waste, LLRWDF to keep this exemption? whom must you notify? requested. Include at least the following: (1) The cover letter described in You must arrange to have your (a) You must notify the following § 266.330(a)(1). exempted waste containerized before it parties, in writing, every time you (2) The shipment number that will is placed in a disposal cell. The intend to claim an exemption for a appear on block number 5 of NRC or container can not be cardboard or newly generated waste stream (a waste Agreement State’s Uniform Low-Level fiberboard boxes. stream whose RCRA hazardous waste Radioactive Waste Manifest Form 540. Record Keeping codes differ from those of the previously claimed waste streams): § 266.335 Must you wait for any § 266.365 What records must you keep at (1) The RCRA program agency (EPA approvals? your facility and for how long? or state) regulating your low-level mixed Your exemption is self-implementing. You must keep records as follows: waste activities; The parties you notify needn’t review (a) You must continue to follow (2) The RCRA program agency (EPA your notification or approve the existing applicable record keeping or state) in the state where the LLRWDF exemption. You may ship waste that requirements under §§ 264.73 and 268.7 is located; and meets LDR treatment standards to the of this chapter in order to demonstrate

VerDate 29-OCT-99 14:20 Nov 18, 1999 Jkt 190000 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 E:\FR\FM\19NOP3.XXX pfrm04 PsN: 19NOP3 Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / Proposed Rules 63501 that your waste has met LDR treatment Loss of Conditional Exemption all parties listed in § 266.325(a) in standards prior to your claiming the writing, with return receipt requested, exemption. § 266.375 How will your RCRA program of the violation within 30 days of agency verify your Transportation and (b) You must keep a copy of all Disposal Conditional Exemption? learning of the violation. notifications required under § 266.330, Your RCRA program agency may § 266.385 If you lose the Transportation sent to parties listed in § 266.325 of this inspect your facility, audit your records and Disposal Conditional Exemption can it subpart for as long as the Mixed Waste regarding the exemption, obtain samples be reclaimed? exemption continues to be active, and and perform any other activities for the three years that follow. (a) You may reclaim your exemption authorized under RCRA including if: (c) You must keep a copy of return under section 3007, 42 U.S.C. 6927 or (1) You again meet the requirements receipts of the notification package from other information gathering authority. In of § 266.315; and all those parties for as long as the Mixed an enforcement action, the burden of (2) You send us, the RCRA program Waste exemption continues to be active, proof to establish compliance with this agency, a notice that you are reclaiming and for the three years that follow. subpart falls on you. Nothing in Subpart the exemption. The notice must do the (d) You must keep a copy of all of N shall be interpreted or applied to following: NRC or Agreement State’s radioactive restrict any inspection or enforcement (i) Explain the circumstances of each waste manifests which included a authority under RCRA, 42 U.S.C. 6901 failure. shipment of the exempted waste, and et seq. Notwithstanding any other (ii) Certify that you have corrected you must attach the accompanying provisions of these regulations, actions each failure that caused you to lose the cover letter as described in may also be brought pursuant to Section exemption and that your waste again § 266.330(a)(1) to it. Keep these records 7003 of RCRA, 42 U.S.C. 6973, relating meets all the conditions as of the date until closure of the disposal facility, or to imminent and substantial you specify. closure of your facility if it happens endangerment. (iii) Demonstrate that each failure is before the disposal facility closure. not likely to recur because of specific § 266.380 How could you lose your (e) You must keep a copy of any steps (list them) that you have notice to any regulatory agency that tells Transportation and Disposal Conditional Exemption? implemented in your LLMW of any change to your initial notification compliance activities. (a) If you fail to satisfy any conditions for as long as the Mixed Waste (iv) Include any other information you listed under § 266.315 you will lose exemption continues to be active, and want us to consider when we review your manifest, transportation, and for the three years that follow. your notice reclaiming the exemption. disposal exemption. When you lose (f) For generators who self-regulate (b) We may terminate a reclaimed your exemption, you must immediately under the Atomic Energy Act, in conditional exemption if we find that manage your waste as RCRA hazardous addition to the records specified in your claim is inappropriate based on waste and you may be subject to § 266.365(a) through (e), you must keep factors such as: you have failed to enforcement action and fines and all other documents related to tracking correct the problem; you explained the penalty under RCRA. the waste as required under 10 CFR circumstances of the violation (b) If you fail to satisfy the 20.2006. unsatisfactorily; or you failed to show requirements listed under § 266.325(b) that the violation is unlikely to recur. In § 266.370 When must you make records and/or § 266.330(b), you may be subject reviewing a reclaimed conditional available? to enforcement action and fines and exemption under this section, we may Make all records relative to your penalty under RCRA. However, you will add requirements to the exemption to exemption available to your RCRA not lose your manifest, transportation, ensure and document proper waste program agency in these cases: and disposal exemptions. management to protect human health or (a) Immediately during an on-site (c) If you fail to satisfy any of the the environment. inspection. conditions and requirements under the (b) Within five business days when Transportation and Disposal [FR Doc. 99–29068 Filed 11–18–99; 8:45 am] and as requested by EPA. Conditional Exemption you must notify BILLING CODE 6560±50±p

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