Conditional Exemption for Low-Level Mixed Waste Storage and

[Title 40 CFR N]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter I - ENVIRONMENTAL PROTECTION]
[Subchapter I - SOLID WASTES (CONTINUED)]
[Part 266 - STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES]
[Subpart N - Conditional Exemption for Low-Level Mixed Waste Storage and]
[From the U.S. Government Printing Office]

40PROTECTION OF ENVIRONMENT232002-07-012002-07-01falseConditional Exemption for Low-Level Mixed Waste Storage andNSubpart NPROTECTION OF ENVIRONMENTENVIRONMENTAL PROTECTIONSOLID WASTES (CONTINUED)STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
Subpart N--Conditional Exemption for Low-Level Mixed Waste Storage and
Disposal

Source: 66 FR 27262, May 16, 2001, unless otherwise noted.

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Terms

Sec. 266.210 What definitions apply to this subpart?

This subpart uses the following special definitions:
Agreement State means a state that has entered into an agreement
with the NRC under subsection 274b of the Atomic Energy Act of 1954, as
amended (68 Stat. 919), to assume responsibility for regulating within
its borders byproduct, source, or special nuclear material in quantities
not sufficient to form a critical mass.
Certified delivery means certified mail with return receipt
requested, or equivalent courier service, or other means, that provides
the sender with a receipt confirming delivery.
Director refers to the definition in 40 CFR 270.2.
Eligible Naturally Occurring and/or Accelerator-produced Radioactive
Material (NARM) is NARM that is eligible for the Transportation and
Disposal Conditional Exemption. It is a NARM waste that contains RCRA
hazardous waste, meets the waste acceptance criteria of, and is allowed
by State NARM regulations to be disposed of at a low-level radioactive
waste disposal facility (LLRWDF) licensed in accordance with 10 CFR part
61 or NRC Agreement State equivalent regulations.
Exempted waste means a waste that meets the eligibility criteria in
266.225 and meets all of the conditions in Sec. 266.230, or meets the
eligibility criteria in 40 CFR 266.310 and complies with all the
conditions in Sec. 266.315. Such waste is conditionally exempted from
the regulatory definition of hazardous waste described in 40 CFR 261.3.
Hazardous Waste means any material which is defined to be hazardous
waste in accordance with 40 CFR 261.3, ``Definition of Hazardous
Waste.''
Land Disposal Restriction (LDR) Treatment Standards means treatment
standards, under 40 CFR part 268, that a RCRA hazardous waste must meet
before it can be disposed of in a RCRA hazardous waste land disposal
unit.
License means a license issued by the Nuclear Regulatory Commission,
or NRC Agreement State, to users that manage radionuclides regulated by
NRC, or NRC Agreement States, under authority of the Atomic Energy Act
of 1954, as amended.
Low-Level Mixed Waste (LLMW) is a waste that contains both low-level
radioactive waste and RCRA hazardous waste.
Low-Level Radioactive Waste (LLW) is a radioactive waste which
contains source, special nuclear, or byproduct material, and which is
not classified as high-level radioactive waste, transuranic waste, spent
nuclear fuel, or byproduct material as defined in section 11e.(2) of the
Atomic Energy Act. (See also NRC definition of ``waste'' at 10 CFR 61.2)
Mixed Waste means a waste that contains both RCRA hazardous waste
and source, special nuclear, or byproduct material subject to the Atomic
Energy Act of 1954, as amended.
Naturally Occurring and/or Accelerator-produced Radioactive Material
(NARM) means radioactive materials that:
(1) Are naturally occurring and are not source, special nuclear, or
byproduct materials (as defined by the AEA) or
(2) Are produced by an accelerator. NARM is regulated by the States
under State law, or by DOE (as authorized by the AEA) under DOE orders.
NRC means the U. S. Nuclear Regulatory Commission.
We or us within this subpart, means the Director as defined in 40
CFR 270.2.
You means a generator, treater, or other handler of low-level mixed
waste or eligible NARM.

Storage and Treatment Conditional Exemption and Eligibility

Sec. 266.220 What does a storage and treatment conditional exemption do?

The storage and treatment conditional exemption exempts your low-
level mixed waste from the regulatory definition of hazardous waste in
40 CFR 261.3 if your waste meets the eligibility criteria in
Sec. 266.225 and you meet the conditions in Sec. 266.230.

Sec. 266.225 What wastes are eligible for the storage and treatment conditional exemption?

Low-level mixed waste (LLMW), defined in Sec. 266.210, is eligible
for this conditional exemption if it is generated

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and managed by you under a single NRC or NRC Agreement State license.
(Mixed waste generated at a facility with a different license number and
shipped to your facility for storage or treatment requires a permit and
is ineligible for this exemption. In addition, NARM waste is ineligible
this exemption.)

Sec. 266.230 What conditions must you meet for your LLMW to qualify for and maintain a storage and treatment exemption?

(a) For your LLMW to qualify for the exemption you must notify us in
writing by certified delivery that you are claiming a conditional
exemption for the LLMW stored on your facility. The dated notification
must include your name, address, RCRA identification number, NRC or NRC
Agreement State license number, the waste code(s) and storage unit(s)
for which you are seeking an exemption, and a statement that you meet
the conditions of this subpart. Your notification must be signed by your
authorized representative who certifies that the information in the
notification is true, accurate, and complete. You must notify us of your
claim either within 90 days of the effective date of this rule in your
State, or within 90 days of when a storage unit is first used to store
conditionally exempt LLMW.
(b) To qualify for and maintain an exemption for your LLMW you must:
(1) Store your LLMW waste in tanks or containers in compliance with
the requirements of your license that apply to the proper storage of
low-level radioactive waste (not including those license requirements
that relate solely to recordkeeping);
(2) Store your LLMW in tanks or containers in compliance with
chemical compatibility requirements of a tank or container in 40 CFR
264.177, or 264.199 or 40 CFR 265.177, or 265.199;
(3) Certify that facility personnel who manage stored conditionally
exempt LLMW are trained in a manner that ensures that the conditionally
exempt waste is safely managed and includes training in chemical waste
management and hazardous materials incidents response that meets the
personnel training standards found in 40 CFR 265.16(a)(3);
(4) Conduct an inventory of your stored conditionally exempt LLMW at
least annually and inspect it at least quarterly for compliance with
subpart N of this part; and
(5) Maintain an accurate emergency plan and provide it to all local
authorities who may have to respond to a fire, explosion, or release of
hazardous waste or hazardous constituents. Your plan must describe
emergency response arrangements with local authorities; describe
evacuation plans; list the names, addresses, and telephone numbers of
all facility personnel qualified to work with local authorities as
emergency coordinators; and list emergency equipment.

Treatment

Sec. 266.235 What waste treatment does the storage and treatment conditional exemption allow?

You may treat your low-level mixed waste at your facility within a
tank or container in accordance with the terms of your NRC or NRC
Agreement State license. Treatment that cannot be done in a tank or
container without a RCRA permit (such as incineration) is not allowed
under this exemption.

Loss of Conditional Exemption

Sec. 266.240 How could you lose the conditional exemption for your LLMW and what action must you take?

(a) Your LLMW will automatically lose the storage and treatment
conditional exemption if you fail to meet any of the conditions
specified in Sec. 266.230. When your LLMW loses the exemption, you must
immediately manage that waste which failed the condition as RCRA
hazardous waste, and the storage unit storing the LLMW immediately
becomes subject to RCRA hazardous waste container and/or tank storage
requirements.
(1) If you fail to meet any of the conditions specified in
Sec. 266.230 you must report to us and the NRC, or the oversight agency
in the NRC Agreement State, in writing by certified delivery within 30
days of learning of the failure. Your report must be signed by

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your authorized representative certifying that the information provided
is true, accurate, and complete. This report must include:
(i) The specific condition(s) you failed to meet;
(ii) A description of the LLMW (including the waste name, hazardous
waste codes and quantity) and storage location at the facility; and
(iii) The date(s) on which you failed to meet the condition(s).
(2) If the failure to meet any of the conditions may endanger human
health or the environment, you must also immediately notify us orally
within 24 hours and follow up with a written notification within five
days. Failures that may endanger human health or the environment
include, but are not limited to, discharge of a CERCLA reportable
quantity or other leaking or exploding tanks or containers, or detection
of radionuclides above background or hazardous constituents in the
leachate collection system of a storage area. If the failure may
endanger human health or the environment, you must follow the provisions
of your emergency plan.
(b) We may terminate your conditional exemption for your LLMW, or
require you to meet additional conditions to claim a conditional
exemption, for serious or repeated noncompliance with any requirement(s)
of subpart N of this part.

Sec. 266.245 If you lose the storage and treatment conditional exemption for your LLMW, can the exemption be reclaimed?

(a) You may reclaim the storage and treatment exemption for your
LLMW if:
(1) You again meet the conditions specified in Sec. 266.230; and
(2) You send us a notice by certified delivery that you are
reclaiming the exemption for your LLMW. Your notice must be signed by
your authorized representative certifying that the information contained
in your notice is true, complete, and accurate. In your notice you must
do the following:
(i) Explain the circumstances of each failure.
(ii) Certify that you have corrected each failure that caused you to
lose the exemption for your LLMW and that you again meet all the
conditions as of the date you specify.
(iii) Describe plans that you have implemented, listing specific
steps you have taken, to ensure the conditions will be met in the
future.
(iv) Include any other information you want us to consider when we
review your notice reclaiming the exemption.
(b) We may terminate a reclaimed conditional exemption if we find
that your claim is inappropriate based on factors including, but not
limited to, the following: you have failed to correct the problem; you
explained the circumstances of the failure unsatisfactorily; or you
failed to implement a plan with steps to prevent another failure to meet
the conditions of Sec. 266.230. In reviewing a reclaimed conditional
exemption under this section, we may add conditions to the exemption to
ensure that waste management during storage and treatment of the LLMW
will protect human health and the environment.

Recordkeeping

Sec. 266.250 What records must you keep at your facility and for how long?

(a) In addition to those records required by your NRC or NRC
Agreement State license, you must keep records as follows:
(1) Your initial notification records, return receipts, reports to
us of failure(s) to meet the exemption conditions, and all records
supporting any reclaim of an exemption;
(2) Records of your LLMW annual inventories, and quarterly
inspections;
(3) Your certification that facility personnel who manage stored
mixed waste are trained in safe management of LLMW including training in
chemical waste management and hazardous materials incidents response;
and
(4) Your emergency plan as specified in Sec. 266.230(b).
(b) You must maintain records concerning notification, personnel
trained, and your emergency plan for as long as you claim this exemption
and for three years thereafter, or in accordance with NRC regulations
under 10 CFR part 20 (or equivalent NRC Agreement State

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regulations), whichever is longer. You must maintain records concerning
your annual inventory and quarterly inspections for three years after
the waste is sent for disposal, or in accordance with NRC regulations
under 10 CFR part 20 (or equivalent NRC Agreement State regulations),
whichever is longer.

Reentry Into RCRA

Sec. 266.255 When is your LLMW no longer eligible for the storage and treatment conditional exemption?

(a) When your LLMW has met the requirements of your NRC or NRC
Agreement State license for decay-in-storage and can be disposed of as
non-radioactive waste, then the conditional exemption for storage no
longer applies. On that date your waste is subject to hazardous waste
regulation under the relevant sections of 40 CFR parts 260 through 271,
and the time period for accumulation of a hazardous waste as specified
in 40 CFR 262.34 begins.
(b) When your conditionally exempt LLMW, which has been generated
and stored under a single NRC or NRC Agreement State license number, is
removed from storage, it is no longer eligible for the storage and
treatment exemption. However, your waste may be eligible for the
transportation and disposal conditional exemption at Sec. 266.305.

Storage Unit Closure

Sec. 266.260 Do closure requirements apply to units that stored LLMW prior to the effective date of Subpart N?

Interim status and permitted storage units that have been used to
store only LLMW prior to the effective date of subpart N of this part
and, after that date, store only LLMW which becomes exempt under this
subpart N, are not subject to the closure requirements of 40 CFR parts
264 and 265. Storage units (or portions of units) that have been used to
store both LLMW and non-mixed hazardous waste prior to the effective
date of subpart N or are used to store both after that date remain
subject to closure requirements with respect to the non-mixed hazardous
waste.

Transportation and Disposal Conditional Exemption

Sec. 266.305 What does the transportation and disposal conditional exemption do?

This conditional exemption exempts your waste from the regulatory
definition of hazardous waste in 40 CFR 261.3 if your waste meets the
eligibility criteria under Sec. 266.310, and you meet the conditions in
Sec. 266.315.

Eligibility

Sec. 266.310 What wastes are eligible for the transportation and disposal conditional exemption?

Eligible waste must be:
(a) A low-level mixed waste (LLMW), as defined in Sec. 266.210, that
meets the waste acceptance criteria of a LLRWDF; and/or
(b) An eligible NARM waste, defined in Sec. 266.210.

Conditions

Sec. 266.315 What are the conditions you must meet for your waste to qualify for and maintain the transportation and disposal conditional exemption?

You must meet the following conditions for your eligible waste to
qualify for and maintain the exemption:
(a) The eligible waste must meet or be treated to meet LDR treatment
standards as described in Sec. 266.320.
(b) If you are not already subject to NRC, or NRC Agreement State
equivalent manifest and transportation regulations for the shipment of
your waste, you must manifest and transport your waste according to NRC
regulations as described in Sec. 266.325.
(c) The exempted waste must be in containers when it is disposed of
in the LLRWDF as described in Sec. 266.340.
(d) The exempted waste must be disposed of at a designated LLRWDF as
described in Sec. 266.335.

Sec. 266.320 What treatment standards must your eligible waste meet?

Your LLMW or eligible NARM waste must meet Land Disposal Restriction
(LDR) treatment standards specified in 40 CFR part 268, subpart D.

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Sec. 266.325 Are you subject to the manifest and transportation condition in Sec. 266.315(b)?

If you are not already subject to NRC, or NRC Agreement State
equivalent manifest and transportation regulations for the shipment of
your waste, you must meet the manifest requirements under 10 CFR 20.2006
(or NRC Agreement State equivalent regulations), and the transportation
requirements under 10 CFR 1.5 (or NRC Agreement State equivalent
regulations) to ship the exempted waste.

Sec. 266.330 When does the transportation and disposal exemption take effect?

The exemption becomes effective once all the following have
occurred:
(a) Your eligible waste meets the applicable LDR treatment
standards.
(b) You have received return receipts that you have notified us and
the LLRWDF as described in Sec. 266.345.
(c) You have completed the packaging and preparation for shipment
requirements for your waste according to NRC Packaging and
Transportation regulations found under 10 CFR part 71 (or NRC Agreement
State equivalent regulations); and you have prepared a manifest for your
waste according to NRC manifest regulations found under 10 CFR part 20
(or NRC Agreement State equivalent regulations), and
(d) You have placed your waste on a transportation vehicle destined
for a LLRWDF licensed by NRC or an NRC Agreement State.

Sec. 266.335 Where must your exempted waste be disposed of?

Your exempted waste must be disposed of in a LLRWDF that is
regulated and licensed by NRC under 10 CFR part 61 or by an NRC
Agreement State under equivalent State regulations, including State NARM
licensing regulations for eligible NARM.

Sec. 266.340 What type of container must be used for disposal of exempted waste?

Your exempted waste must be placed in containers before it is
disposed. The container must be:
(a) A carbon steel drum; or
(b) An alternative container with equivalent containment performance
in the disposal environment as a carbon steel drum; or
(c) A high integrity container as defined by NRC.

Notification

Sec. 266.345 Whom must you notify?

(a) You must provide a one time notice to us stating that you are
claiming the transportation and disposal conditional exemption prior to
the initial shipment of an exempted waste from your facility to a
LLRWDF. Your dated written notice must include your facility name,
address, phone number, and RCRA ID number, and be sent by certified
delivery.
(b) You must notify the LLRWDF receiving your exempted waste by
certified delivery before shipment of each exempted waste. You can only
ship the exempted waste after you have received the return receipt of
your notice to the LLRWDF. This notification must include the following:
(1) A statement that you have claimed the exemption for the waste.
(2) A statement that the eligible waste meets applicable LDR
treatment standards.
(3) Your facility's name, address, and RCRA ID number.
(4) The RCRA hazardous waste codes prior to the exemption of the
waste streams.
(5) A statement that the exempted waste must be placed in a
container according to Sec. 266.340 prior to disposal in order for the
waste to remain exempt under the transportation and disposal conditional
exemption of subpart N of this part.
(6) The manifest number of the shipment that will contain the
exempted waste.
(7) A certification that all the information provided is true,
complete, and accurate. The statement must be signed by your authorized
representative.

Recordkeeping

Sec. 266.350 What records must you keep at your facility and for how long?

In addition to those records required by your NRC or NRC Agreement
State

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license, you must keep records as follows:
(a) You must follow the applicable existing recordkeeping
requirements under 40 CFR 264.73, 40 CFR 265.73, and 40 CFR 268.7 of
this chapter to demonstrate that your waste has met LDR treatment
standards prior to your claiming the exemption.
(b) You must keep a copy of all notifications and return receipts
required under Secs. 266.355, and 266.360 for three years after the
exempted waste is sent for disposal.
(c) You must keep a copy of all notifications and return receipts
required under Sec. 266.345(a) for three years after the last exempted
waste is sent for disposal.
(d) You must keep a copy of the notification and return receipt
required under Sec. 266.345(b) for three years after the exempted waste
is sent for disposal.
(e) If you are not already subject to NRC, or NRC Agreement State
equivalent manifest and transportation regulations for the shipment of
your waste, you must also keep all other documents related to tracking
the exempted waste as required under 10 CFR 20.2006 or NRC Agreement
State equivalent regulations, including applicable NARM requirements, in
addition to the records specified in Sec. 266.350(a) through (d).

Loss of Transportation and Disposal Conditional Exemption

Sec. 266.355 How could you lose the transportation and disposal conditional exemption for your waste and what actions must you take?

(a) Any waste will automatically lose the transportation and
disposal exemption if you fail to manage it in accordance with all of
the conditions specified in Sec. 266.315.
(1) When you fail to meet any of the conditions specified in
Sec. 266.315 for any of your wastes, you must report to us, in writing
by certified delivery, within 30 days of learning of the failure. Your
report must be signed by your authorized representative certifying that
the information provided is true, accurate, and complete. This report
must include:
(i) The specific condition(s) that you failed to meet for the waste;
(ii) A description of the waste (including the waste name, hazardous
waste codes and quantity) that lost the exemption; and
(iii) The date(s) on which you failed to meet the condition(s) for
the waste.
(2) If the failure to meet any of the conditions may endanger human
health or the environment, you must also immediately notify us orally
within 24 hours and follow up with a written notification within 5 days.
(b) We may terminate your ability to claim a conditional exemption
for your waste, or require you to meet additional conditions to claim a
conditional exemption, for serious or repeated noncompliance with any
requirement(s) of subpart N of this part.

Sec. 266.360 If you lose the transportation and disposal conditional exemption for a waste, can the exemption be reclaimed?

(a) You may reclaim the transportation and disposal exemption for a
waste after you have received a return receipt confirming that we have
received your notification of the loss of the exemption specified in
Sec. 266.355(a) and if:
(1) You again meet the conditions specified in Sec. 266.315 for the
waste; and
(2) You send a notice, by certified delivery, to us that you are
reclaiming the exemption for the waste. Your notice must be signed by
your authorized representative certifying that the information provided
is true, accurate, and complete. The notice must:
(i) Explain the circumstances of each failure.
(ii) Certify that each failure that caused you to lose the exemption
for the waste has been corrected and that you again meet all conditions
for the waste as of the date you specify.
(iii) Describe plans you have implemented, listing the specific
steps that you have taken, to ensure that conditions will be met in the
future.
(iv) Include any other information you want us to consider when we
review your notice reclaiming the exemption.
(b) We may terminate a reclaimed conditional exemption if we find
that your claim is inappropriate based on factors including, but not
limited to: you have failed to correct the problem;

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you explained the circumstances of the failure unsatisfactorily; or you
failed to implement a plan with steps to prevent another failure to meet
the conditions of Sec. 266.315. In reviewing a reclaimed conditional
exemption under this section, we may add conditions to the exemption to
ensure that transportation and disposal activities will protect human
health and the environment.