[Federal Register Volume 59, Number 76 (Wednesday, April 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9570]


[[Page Unknown]]

[Federal Register: April 20, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-4876-1]

 

Extension of the Policy on Enforcement of RCRA Section 3004(J) 
Storage Prohibition at Facilities Generating Mixed Radioactive/
Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Policy statement.

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SUMMARY: EPA is announcing an extension of its policy (56 FR 42730, 
August 29, 1991) on the civil enforcement of the storage prohibition in 
section 3004(j) of the Resource Conservation and Recovery Act (RCRA) at 
facilities which generate ``mixed waste'' regulated under both the RCRA 
subtitle C hazardous waste program and the Atomic Energy Act (AEA). The 
policy affects certain mixed wastes that are prohibited from land 
disposal under the RCRA Land Disposal Restrictions (LDR), and for which 
there are no available options for treatment or disposal. This action 
generally renews the August 1991 policy for an additional two-year 
period, based on EPA's determination that the availability of treatment 
and disposal capacity for certain mixed wastes has not changed 
materially in the interim.

EFFECTIVE DATE: April 20, 1994.

FOR FURTHER INFORMATION CONTACT: Richard LaShier, State and Regional 
Programs Branch, Office of Solid Waste; Telephone (703) 308-8760.

SUPPLEMENTARY INFORMATION:

I. Background

A. Mixed Waste and the LDR Storage Prohibition

    ``Mixed wastes'' are wastes that contain both a hazardous waste 
component regulated under Subtitle C of RCRA and a radioactive 
component consisting of source, special nuclear, or byproduct material 
regulated under the AEA. EPA clarified that RCRA applies to wastes 
which contain both types of components on July 3, 1986 (51 FR 24,504). 
The definition of mixed waste was recently added to the RCRA statute by 
the Federal Facility Compliance Act (FFCA) of 1992. Mixed wastes are a 
subset of hazardous wastes, and as such, are subject to the land 
disposal restrictions in 40 CFR Part 268. Currently, most mixed wastes 
are subject to the LDRs, except for newly listed hazardous wastes that 
are mixed with AEA radioactive materials and do not yet have EPA 
treatment standards. Certain additional newly listed wastes that are 
mixed with radioactive materials, and debris contaminated with certain 
hazardous wastes (which also may be radioactive) are currently subject 
to variances from the LDR treatment standards (See 40 CFR 268.36).
    The aspect of the LDRs affected by the policy extension set forth 
in this notice is the ``storage prohibition'' enacted in HSWA section 
3004(j). This provision prohibits any storage of a land disposal 
prohibited waste (including mixed waste) except ``for the purpose of 
the accumulation of such quantities of hazardous waste as are necessary 
to facilitate proper recovery, treatment, or disposal.'' The provision 
has relevance to mixed waste management, since there currently is only 
one facility that EPA is aware of, Envirocare of Utah, Inc., that 
provides disposal capacity for certain types (i.e., mainly low activity 
and high volume mixed wastes) of commercially generated mixed waste. 
Also, there are limited treatment options for much of the mixed waste 
generated by commercial generators (e.g. nuclear power reactors, fuel 
cycle, and materials licensees) and by the Department of Energy (DOE). 
EPA has previously concluded that storage of a waste pending 
development of treatment capacity does not constitute storage to 
accumulate sufficient quantities to facilitate proper treatment or 
disposal. This interpretation was recently upheld by the U.S. Court of 
Appeals for the District of Columbia Circuit in the case of Edison 
Electric Institute v. EPA, 996 F. 2d 326 (D.C. Cir. 1993). EPA, 
however, believes that because of the relatively small quantities of 
mixed waste that are generated by commercial facilities (typically two 
55 gallon drums or less per year per facility), there has not, as yet, 
been sufficient economic incentive to develop and operate mixed waste 
treatment facilities to address many types of mixed waste. Therefore, 
commercial generators may have little option but to store their wastes 
until adequate capacity is available through the efforts of both small 
commercial generators and large generators (e.g., the Department of 
Energy) to secure adequate capacity.

B. Mixed Waste Treatment Capacity Shortage

    Prior to issuing the 1991 policy (56 FR 42,730, August 29, 1991) on 
the civil enforcement of the storage prohibition, EPA determined that 
inadequate capacity existed to treat or dispose of most types of mixed 
waste streams. This determination was supported by data from several 
surveys conducted by States and Regional Low Level Waste Compacts, by 
information available in the Office of Technology Assessment's October, 
1990 report on low-level waste issues (``Partnerships Under Pressure--
Managing Commercial Low-Level Radioactive Waste''), and by commenters 
on EPA LDR rulemakings.
    Since the 1991 enforcement policy, EPA and NRC conducted a joint 
survey on commercial generators, published under the title, ``National 
Profile on Commercially Generated Low-Level Radioactive Mixed Waste'' 
(NUREG/CR-5938, December, 1992). This survey further supports the view 
that a treatment capacity shortfall exists for commercial low-level 
mixed waste streams. The Profile provides a snapshot of the commercial 
low-level mixed waste universe in 1990, and it estimates a treatment 
capacity shortfall of at least 12,000 cubic feet based on the treatment 
demand in 1990. The reported shortfall particularly affects chlorinated 
fluorocarbons, solid lead, and mercury mixed waste streams.
    The capacity information for the Profile was provided from four 
known companies that treat mixed waste (i.e., Diversified Scientific 
Services, Inc. (DSSI), NSSI Recovery Services, Inc. (NSSI), Quadrex 
Corporation, and RAMP Industries). Scientific Ecology Group (SEG) which 
currently provides radioactive waste management services, and 
Envirocare of Utah Inc. which operates a low-activity radioactive and 
mixed waste disposal facility plan to provide mixed waste treatment 
services in the future. Most of the available capacity reported in the 
Profile is found at DSSI and NSSI. EPA has contacted the mixed waste 
treatment vendors since the survey to ascertain if the treatment 
estimates have changed. Based on discussions with the operators of 
facilities that have existing or planned treatment capacity, it appears 
that there has been little change in the availability of treatment 
capacity since the Policy was issued in 1991.
    DSSI's boiler unit was shutdown from mid-1992 to December 1993. 
This shutdown has created a backlog of mixed waste to be burned from 
on-site and off-site locations. DSSI estimates that it will take two to 
two and one-half years to burn off this backlog. NSSI also has a 
backlog of pretreated mixed waste waiting to be sent to DSSI for 
thermal treatment. It does not appear that there is, at this time, 
significant actual treatment of mixed wastes underway at NSSI. Quadrex 
and RAMP still appear to have excess treatment capacity for liquid 
scintillation cocktail fluids and ignitable wastes, but these 
facilities are limited by their RCRA permits as to the types of mixed 
waste streams they can accept. SEG intends to provide mixed waste 
treatment, including incineration, but does not yet have the RCRA 
permit to operate. It appears that SEG may have some treatment capacity 
on-line by the end of the policy extension period. Envirocare of Utah 
Inc. has a RCRA permit to treat, store and dispose of certain types of 
mixed waste. Envirocare's treatment system is scheduled to begin 
operation in 1994.
    EPA is concerned that there has been limited improvement in the 
mixed waste treatment capacity situation in the past two years. The 
Agency also recognizes that clean up wastes and DOE wastes that were 
not specifically addressed in the Profile may place demands on the 
planned and available treatment capacity. EPA understands the factors 
that make development of additional capacity problematic, but 
generators should understand that EPA does not intend to extend this 
Policy on a routine or indefinite basis. EPA's willingness to extend 
this Policy is predicated on indications that there may be positive 
developments in the treatment capacity area during the period of the 
two-year extension.
    These indications include improvements in treatment capability 
which are being pursued by a few facilities. For example, NSSI has 
plans to add the capability to treat mercury in a retorting unit, and 
to add a hydrolysis unit for reactive metals. SEG has submitted a RCRA 
Part B permit application to add solidification, stabilization, 
compaction and thermal desorption processes to its facility. It also 
appears that the backlog of mixed wastes that can be burned for energy 
recovery at DSSI will be eliminated by the end of this extension.
    Another indication is that the prospects for new mixed waste 
treatment capacity are driven largely by the treatment needs identified 
by the DOE, since DOE's waste volumes dwarf those of the commercial 
sector. Thus, EPA cannot ignore the important linkage of overall mixed 
waste treatment capacity development to the planning process underway 
under the FFCA. The FFCA established a timeframe for DOE, the States, 
and EPA to develop and approve site-specific treatment plans for the 
DOE sites' mixed wastes, and these plans must be completed by October, 
1995. The next two years will be a critical period in identifying the 
facilities, the processes, and capacities that must be brought on-line 
to deal with DOE's significant mixed waste inventories. EPA expects 
that the commercial generators affected by this Policy extension will 
also be beneficiaries of the statutory and market forces that are 
currently addressing the treatment capacity issues within the DOE 
complex. Therefore, a two-year extension of this Policy should foster 
greater coordination of the solutions to the treatment capacity 
shortfall that affects both commercial and DOE site generators.
    EPA encourages generators to continue exploring all viable 
treatment alternatives during the next two years. Generators should be 
prepared to demonstrate their good faith efforts at locating available 
capacity for their mixed wastes. In addition, generators should also 
explore the potential benefits of consolidating their wastes with like 
wastes from other generators, and developing or procuring treatment 
capacity to address more efficiently the waste streams that are pooled 
in this fashion. Likewise, commercial generators should provide input 
on their current inventories and treatment needs during the FFCA 
treatment capacity planning process. The option of consolidating the 
management of DOE and commercially generated wastes has been a topic of 
much discussion between DOE and those interests responsible for 
developing and regulating new commercial low-level radioactive waste 
facilities. The States have indicated that they wish to include this 
issue as part of the FFCA planning agenda. EPA urges the continuation 
of these discussions, and the participation of the commercial generator 
interests in the debate.

II. Summary of Policy

A. Storage Prohibition Policy Extension

    In this notice, EPA is announcing a two-year extension of its 
policy (56 FR 42,730, August 29, 1991) on civil enforcement of the 
storage prohibition in section 3004(j) of RCRA at facilities which 
generate limited quantities of mixed wastes. This policy is not final 
agency action, but is intended solely as guidance. It is not intended, 
nor can it be relied upon, to create any rights enforceable by any 
party in litigation with the United States. EPA officials may decide to 
follow the policy provided in this extension or to act at variance with 
the policy, based on an analysis of specific site circumstances. The 
Agency also reserves the right to change this policy at any time 
without public notice. EPA reserves the right to enforce all RCRA 
provisions at hazardous waste facilities and against persons who handle 
hazardous waste. The intent of the policy published on August 29, 1991 
was to explain how section 3004(j) storage violations involving mixed 
wastes fit within the Agency's civil enforcement priorities. At that 
time, there was no available treatment or disposal capacity for most of 
the mixed wastes prohibited from land disposal. Treatment or disposal 
capacity is still generally unavailable for these mixed wastes as well 
as for additional mixed waste that became subject to the land disposal 
prohibitions during the initial term of the mixed waste policy. 
Generators and storers of these wastes continue to find it impossible 
to comply with the section 3004(j) storage prohibition, if there are no 
available options for treatment or disposal of the wastes. At the same 
time, however, generators of the affected mixed waste should, through 
prudent waste management practices, be capable of storing their mixed 
wastes for the limited duration of this policy extension in a manner 
that poses minimal risk to public health or the environment. 
Responsible management practices should minimize the environmental 
risks from these section 3004(j) storage violations.
    For mixed waste generators who are storing mixed wastes in an 
environmentally responsible manner as described in this policy, EPA 
considers the violations of section 3004(j) involving relatively small 
volumes of waste to be reduced priorities among EPA's potential civil 
enforcement actions. Any enforcement activity arising from violations 
of section 3004(j) at these facilities will generally focus on 
determining whether these generators are managing their mixed wastes in 
an environmentally responsible manner. EPA's primary concern is with 
the more significant violations of section 3004(j) committed by larger 
(>1,000 cubic ft/yr) mixed waste generators, especially if they are not 
pursuing environmentally responsible management of their stored mixed 
wastes.
    This policy extension is limited in duration, and terminates on 
April 20, 1996. During the period that this policy is in effect, EPA 
will again evaluate data that become available on generation, 
treatability, and treatment capacity for the mixed wastes affected by 
this policy. EPA will terminate or limit this policy before April 20, 
1996 should lawful treatment capacity become available.
    The policy applies only to mixed waste facilities which generate 
less than 1,000 cubic feet/year of land disposal prohibited wastes. 
That is, the policy does not apply to any facility that generated more 
than 1,000 cubic feet of prohibited mixed wastes during the calendar 
year 1994, or that does so during any succeeding calendar year that 
this policy is in effect. This amount relates only to the annual 
generation rate, and not to the mixed waste inventory in storage. The 
amount includes any newly listed mixed wastes for which treatment 
standards are promulgated during the term of this extension, and mixed 
wastes whose LDR variance expires during the term of this extension.
    Liquid Scintillation Cocktail (LSC) fluids are generally not to be 
included in the calculation of the generation rate, except for those 
volumes that are not eligible for the NRC's medical waste exemption 
(i.e., they contain C-14 or H-3 in excess of the 0.05 uCi/g limits 
spelled out at 10 CFR 20.306). The LSC fluids that are exempted from 
NRC disposal requirements by 10 CFR 20.306 are typically burned for 
energy recovery in RCRA boilers or industrial furnaces, so they are not 
affected by this policy.
    Stored-for-decay wastes are another class of mixed waste that 
should not be included in the calculation of the generation rate for 
eligible generators. For purposes of this policy, the term ``stored-
for-decay'' wastes is to be interpreted consistently with the NRC's 
definition of ``decay-in-storage'' at 10 CFR 35.92. That is, it refers 
to mixed wastes which contain radioisotopes (byproduct material) with 
physical half lives of less than 65 days, so that storage for the 
period measured by at least 10 half-lives will cause their 
radioactivity to diminish to background levels. At the conclusion of 
the decay period, they may be managed solely as hazardous waste, and 
not as mixed wastes. Therefore, these wastes are not at that time 
subject to the constraints on treatment and disposal that apply to 
other mixed wastes.
    As EPA explained in the August 1991 policy, the Agency recognizes a 
variety of indicators of environmentally responsible operation in 
determining the civil enforcement priority of section 3004(j) storage 
violations at particular mixed waste generator facilities.
    EPA believes that all of the factors described in the 1991 policy 
remain relevant to mixed waste generators during the period of this 
extension, except for the participation in the EPA/NRC profile which 
has already been completed. These factors are described in Section IV 
of this document.

B. Limitations on Scope

    This policy affects only the civil judicial and administrative 
enforcement priorities that would arise solely from the act of storing 
LDR mixed wastes in contravention of RCRA section 3004(j). The policy 
is also limited in scope to those mixed waste streams for which 
authorized treatment or disposal capacity is not available. The mixed 
wastes covered by this policy must be mixed wastes when generated: 
e.g., a generator may not commingle distinct hazardous and radioactive 
waste streams in order to come within the scope of this policy.
    EPA intends that this policy apply both to the mixed wastes 
generated during the term of the policy, and to existing inventories of 
mixed wastes already in storage. The policy does not cover other 
violations of RCRA storage requirements, such as the storage facility 
standards of Subparts I through L and DD of 40 CFR parts 264 (permitted 
facility standards) or 265 (interim status facility standards), or 
their State equivalents. EPA emphasizes that this policy does not 
affect any requirement under RCRA to obtain a storage permit, which is 
generally required if mixed wastes are stored for greater than 90 days. 
The policy does not extend to potential criminal violations of RCRA, 
for which prosecutorial discretion rests solely with the United States 
Attorney General.
    This policy does not extend to executive branch federal facilities, 
including the DOE, which generate and store mixed wastes. For all 
executive branch federal facilities, section 102(c) of the Federal 
Facility Compliance Act (FFCA), Public Law 102-386 (October 6, 1992) 
(not codified), delays the waiver of sovereign immunity with respect to 
fines and penalties for violations of RCRA section 3004(j) involving 
storage of mixed waste for three years from October, 1992, so long as 
the waste is managed in compliance with all other applicable 
requirements. The delay of the waiver of sovereign immunity does not 
apply to the storage of mixed waste that is subject to an agreement, 
permit, or judicial or administrative order that was existing as of the 
effective date of the FFCA. For DOE facilities, the delay of the waiver 
of sovereign immunity can extend beyond three years if DOE is in 
compliance with the requirements of section 102(c)(3)(B) of the FFCA. 
The protection from fines and penalties for executive branch federal 
facilities, which extends for the full period of this enforcement 
policy, obviates the need for applying this policy to these federal 
facilities.

C. Effects of Other Violations

    This policy affects only the civil enforcement priority that EPA 
will generally assign to section 3004(j) storage violations. 
Allegations of RCRA violations should generally not affect that 
priority, as long as the generator is otherwise managing its mixed 
wastes in an environmentally responsible manner. If, however, a 
facility inspection or other information reveals significant RCRA 
violations (other than of section 3004(j)) or a pattern of violations 
which evidence a disregard for compliance with the RCRA hazardous waste 
regulations, EPA may attach a greater priority to all violations--
including storage of mixed waste in violation of section 3004(j)--at 
that facility.

III. Applicability

    This policy applies to EPA enforcement activities in all States in 
which mixed waste falls within the jurisdiction of RCRA. It is not 
applicable in States where mixed waste is not regulated under RCRA, 
i.e., in authorized States which lack specific EPA approval of mixed 
waste regulatory programs. In those States where the State, as well as 
EPA, has authority to enforce the LDRs, this policy affects only the 
EPA enforcement programs.
    RCRA mixed waste jurisdiction applies in States which are 
unauthorized for the ``base'' RCRA program. As of December 31, 1993, 
there were 8 such States and Territories that had not received RCRA 
base authorization. These States and Territories are: Alaska, American 
Samoa, Hawaii, Iowa, Mariana Islands, Puerto Rico, Virgin Islands, and 
Wyoming. In these States and Territories, the EPA Regional Offices 
administer both the base RCRA mixed waste program and the LDRs, so this 
policy applies in these States.
    RCRA mixed waste jurisdiction extends as well to authorized States 
that have been additionally authorized specifically for RCRA mixed 
waste programs. As of December 31, 1993, there were 35 States and one 
Territory authorized to implement RCRA mixed waste programs. These 
States and Territories are: Alabama, Arizona, Arkansas, California, 
Colorado, Connecticut, Florida, Georgia, Guam, Idaho, Illinois, 
Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Missouri, 
Mississippi, Nebraska, Nevada, New Mexico, New York, North Carolina, 
North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, 
Tennessee, Texas, Utah, Vermont, Washington, and Wisconsin. The RCRA 
3004(j) storage prohibition is an element of the LDRs enacted in the 
Hazardous and Solid Waste Amendments (HSWA) of 1984. HSWA requires EPA 
to implement the LDR provisions as they apply to mixed waste until the 
authorized States receive approval from EPA to implement the LDR 
provision in lieu of the Agency. EPA therefore implements the LDRs, and 
this policy applies, in the States with authorized RCRA mixed waste 
programs, until the States have also been authorized for their LDR 
programs.
    As of December 31, 1993, 21 States with mixed waste programs had 
received final authorization to implement LDRs covering solvents and 
dioxins, and 18 States have also received final authorization for or 
have adopted EPA's rules for ``California List'' LDRs. The 21 States 
are: Alabama, Arizona, Arkansas, California, Colorado, Georgia, Guam, 
Idaho, Illinois, Michigan, Minnesota, Missouri, Nevada, New York, North 
Carolina, North Dakota, Ohio, Texas, Utah, Vermont, and Wisconsin. 
These States' approved LDR authorities include State law counterparts 
to the RCRA 3004(j) storage prohibition. As these States have 
independent authority to enforce the LDRs and 3004(j), EPA's 
enforcement policy is not binding on these 21 States. Therefore, 
facility owners and operators should consult with the responsible 
officials in these States for clarification on these States' policy 
with respect to storage of LDR prohibited mixed waste.
    During the term of this policy, additional States may receive 
authorization for mixed waste or LDR programs. Facility owners and 
operators should track the authorization status of their State programs 
in order to ascertain whether they are covered by this policy, or 
whether other restrictions based on State law might apply to mixed 
waste storage. During the next two years, EPA reserves the right to 
revisit this policy at any time.

IV. Highlights of Extended Enforcement Policy

    In order to demonstrate that they are pursuing environmentally 
responsible management of their mixed wastes (and therefore should be 
accorded a reduced civil enforcement priority for section 3004(j) 
violations), facility owner/operators generating mixed wastes should be 
undertaking at least the following steps.

A. Inventory and Compliance Assessment of Storage Areas

    Records should be maintained identifying each physical location or 
unit where mixed waste is stored, and identifying the method of storage 
(i.e., container or tank, see 40 CFR 264.73(b)/265.73(b)). An 
inspection of these storage areas for compliance with applicable RCRA 
standards for storage methods, including an assessment of compliance 
with the storage facility standards of 40 CFR part 264 or part 265 
(interim status), Subparts I-J and DD, or the State counterparts to 
these standards should be performed regularly (see 40 CFR 264.15/
265.15). The facility records should contain the results of the 
inspections as required by 40 CFR 264.73(b)(5)/265.73(b)(5). EPA 
encourages facility owner/operators to take action promptly to correct 
any deficiencies, since EPA expects to focus its enforcement efforts 
regarding section 3004(j) violations on those situations where a 
subsequent inspection or other information reveals significant RCRA 
violation(s), or a pattern of violations that indicate a disregard for 
compliance with the RCRA Subtitle C requirements.

B. Identification of Mixed Wastes

    Facility owner/operators should maintain sufficient information to 
identify their mixed wastes. The identification should include the RCRA 
waste codes for the hazardous components, the source of the hazardous 
constituents and discussion of how the waste was generated (if known), 
the generation rate and volumes of mixed wastes in storage, and any 
process information relied upon to identify mixed wastes or make 
determinations that wastes are prohibited by the LDRs (See 40 CFR 
264.73/265.73). If requested for purposes of an inspection, information 
on generation rates should include annual generation rates for all 
mixed wastes, in order to demonstrate that the facility's annual 
generation rate does not exceed 1,000 cubic ft/yr, based on the volumes 
and types of mixed wastes that this policy specifies should be counted.

C. Waste Minimization Plans

    EPA understands that many mixed waste generators and facility 
owner/operators are undertaking active measures to avoid the generation 
of mixed wastes. Each mixed waste generator and facility owner/operator 
should develop a waste minimization plan (See 58 FR 31,114, May 28, 
1993, for guidance), and retain the plan at the facility. The plan 
should address process changes that can be made to reduce or eliminate 
mixed wastes, methods to minimize the volume of regulated wastes 
through better segregation of materials, and substitution of non-
hazardous materials. The plan should include a schedule for 
implementation, projections of volume reductions to be achieved, and 
assumptions that are critical to the accomplishment of the projected 
reductions.

D. Good Faith Efforts

    This policy is limited in scope to those LDR-prohibited mixed 
wastes for which sufficient, lawful treatment capacity is not 
available. As stated earlier, EPA recognizes that commercial treatment 
and disposal capacity does not exist for many types of mixed wastes. 
However, since treatment or disposal capacity may become available in 
the future, facility owner/operators should be prepared to demonstrate 
that good faith efforts have been undertaken to ascertain whether 
treatment capacity is available for their mixed wastes. EPA further 
recognizes that the availability of a process may not always translate 
into adequate capacity available to each generator, and such 
circumstances should be identified.

    Dated: April 7, 1994.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
Scott C. Fulton,
Acting Assistant Administrator, Office of Enforcement.
[FR Doc. 94-9570 Filed 4-19-94; 8:45 am]
BILLING CODE 6560-50-P