[Federal Register Volume 63, Number 215 (Friday, November 6, 1998)]
[Notices]
[Pages 59989-59992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29819]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6183-4]


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 a limited extension of its policy (56 FR 
42730, August 29, 1991) on the civil enforcement of the storage 
prohibition in sec. 3004(j) of the Resource Conservation and Recovery 
Act (RCRA) at facilities that generate ``mixed waste'' regulated under 
both the RCRA subtitle C hazardous waste program and the Atomic Energy 
Act of 1954, as amended (AEA). The policy affects only 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. EPA has determined that for a few of these mixed 
wastes, treatment technology and disposal capacity still is not 
commercially available. Based on this determination, EPA is hereby 
renewing for three years the August 1991 policy for those mixed wastes. 
For purposes of this policy statement, ``available treatment technology 
and disposal capacity'' means that a facility is commercially available 
to treat or dispose of a particular waste and the facility has either 
(1) a RCRA permit or interim status; (2) a research, development, and 
demonstration permit under 40 CFR 270.65; or (3) a land treatment 
permit under 40 CFR 270.63.

[[Page 59990]]

    Pursuant to the terms of this policy, EPA will continue to treat 
violations of RCRA sec. 3004(j) as reduced priorities among EPA's 
potential civil enforcement actions. EPA's primary concerns are with 
mixed waste facilities (1) that are storing wastes for which treatment 
technology is commercially available, and (2) that are not managing 
their stored mixed waste in an environmentally responsible manner. 
Generators must regularly explore all treatment and disposal 
alternatives during the extension because new technologies may come on 
line at any time. If treatment technology or disposal capacity is 
available or becomes available, the generator must use it. EPA will 
employ RCRA enforcement authorities to ensure that this policy is not 
abused, with particular focus on ensuring that emerging treatment 
technologies are fully utilized and on confirming that those wastes for 
which no treatment exists are stored safely.

EFFECTIVE DATE: October 31, 1998.

FOR FURTHER INFORMATION CONTACT: Leslie Bell, Federal, State and Tribal 
Programs Branch, Office of Solid Waste; Telephone (703) 308-8888 or 
Mary Andrews, RCRA Enforcement Division, Office of Regulatory 
Enforcement; Telephone (202) 564-4011.

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. On July 3, 1986, EPA clarified that RCRA 
applies to the hazardous component of these wastes (51 FR 24504). The 
hazardous component of mixed wastes is subject to the land disposal 
restrictions in 40 CFR Part 268. The LDR requires generators to treat 
hazardous wastes to specified treatment standards.
    The aspect of the LDR affected by the policy extension set forth in 
this notice is the ``storage prohibition'' enacted in the Hazardous and 
Solid Waste Amendments (HSWA), RCRA section 3004(j), 42 U.S.C. 6924(j), 
and 40 CFR 268.50. This provision prohibits any storage of a waste 
prohibited from land disposal (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.'' 
EPA has concluded that storage of a waste pending development of 
treatment technology does not constitute storage to accumulate 
sufficient quantities to facilitate proper treatment or disposal. This 
interpretation was upheld by the U.S. Court of Appeals for the District 
of Columbia Circuit in Edison Electric Institute v. EPA, 996 F.2d 326 
(D.C. Cir. 1993).
    However, treatment and disposal options are limited for some mixed 
wastes, both currently generated and generated in the past. Therefore, 
commercial generators may have no option but to store those wastes for 
which treatment technology or disposal capacity is not yet available.

B. Mixed Waste Treatment Technology and Disposal Capacity

    In the past year, EPA has visited hospitals, laboratories, nuclear 
power plants, universities, and treatment and disposal facilities. The 
Agency has also conducted research on emerging mixed waste treatment 
technologies, and has employed RCRA information gathering authority to 
collect information from several facilities regarding the treatment and 
disposal of their mixed wastes. The purpose of these efforts was to 
determine the extent to which generators have utilized available 
treatment and disposal alternatives, to ascertain whether there are 
mixed wastes that can not be treated, and to confirm that those wastes 
for which no treatment exists are stored safely and in compliance with 
interim status or a RCRA storage permit. As a result of its 
investigation, EPA believes that (1) currently treatment is available 
for most low level mixed wastes, but treatment continues to be 
unavailable for a few wastes, such as mixed wastes containing dioxins, 
PCBs, and lead based paint solids, and wastes with very high levels of 
radioactivity; and (2) where treatment technology is available, there 
is excess capacity at the commercial mixed waste treatment facilities.
    In an effort to help generators locate mixed waste treatment, 
storage, and disposal facilities, EPA has developed an Internet 
HomePage that lists some commercially available mixed waste treatment, 
storage, and disposal facilities based on information received from 
vendors. The EPA Mixed Waste HomePage can be found at ``http://
www.epa.gov/radiation/mixed-waste.'' This list should not be seen as 
complete or as a recommendation or endorsement of any of these 
facilities. This list only represents those companies that have 
expressed an interest in participating in EPA's Mixed Waste Internet 
HomePage. EPA does not endorse or promote technologies or companies 
that provide treatment, storage, or disposal capacity for any waste, 
including mixed waste. Companies that wish to participate should 
contact EPA's Office of Solid Waste at the number listed for this 
Federal Register notice.

II. Summary of Policy

A. Storage Prohibition Policy Extension

    In this notice, EPA is announcing a limited extension of its policy 
(56 FR 42730, August 29, 1991) on civil enforcement of the storage 
prohibition in RCRA section 3004(j) at facilities that generate mixed 
wastes. This policy extension is limited to three years from October 
31, 1998. Note that this extended policy applies only to those waste 
streams for which no treatment technology or disposal capacity is 
available. If treatment technology and disposal capacity are available, 
the generator must use it. This policy is not a final agency action, 
but is intended solely as guidance. This policy 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.
    The intent of this policy is to explain how RCRA section 3004(j) 
storage violations involving mixed wastes fit within the Agency's civil 
enforcement priorities. For generators that are storing mixed wastes 
for which no viable treatment technology or disposal capacity exists, 
EPA considers the violations of RCRA section 3004(j) to be a relatively 
low priority among EPA's potential civil enforcement actions so long as 
the wastes are stored in accordance with a RCRA permit or interim 
status and are stored in an environmentally responsible manner. Any 
enforcement activity arising from violations of RCRA section 3004(j) 
will generally focus on those facilities that store mixed wastes for 
which treatment technology is commercially available or fail to manage 
any mixed waste in an environmentally responsible manner.
    In addition, generators of the affected mixed waste must be 
following prudent waste management practices to store their mixed 
wastes in a manner that minimizes risk to public health and the 
environment. In determining the civil enforcement priority of RCRA 
section 3004(j) storage violations at particular mixed waste generator 
facilities, the Agency recognizes a variety of indicators of 
environmentally responsible operation. These factors are

[[Page 59991]]

described in Section IV of this document.
    EPA is currently developing an Advance Notice of Proposed 
Rulemaking that will request comment on several strategies to address 
overlapping regulatory requirements for mixed waste with low levels of 
radioactivity that is subject to both Nuclear Regulatory Commission and 
EPA oversight. The Agency expects to request comments on options for 
mixed waste storage and treatment, including storage for decay, and 
alternative suggestions for providing regulatory flexibility for mixed 
waste management.

B. Limitations on Scope

    This policy affects only the priority placed on potential civil 
judicial and administrative enforcement actions that would arise from 
storing mixed wastes subject to the LDR in contravention of RCRA 
section 3004(j). This policy does not limit the Agency's enforcement 
authority, including its authority under RCRA section 7003 relating to 
imminent and substantial endangerment. The policy also is limited to 
those mixed waste streams for which treatment technology or disposal 
capacity is not commercially available. The mixed wastes covered by 
this policy must be mixed wastes when generated; a generator may not 
commingle radioactive waste streams with hazardous waste in order to 
come within the scope of this policy.
    EPA intends that this policy apply both to 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.
    EPA intends to apply this policy to executive branch federal 
facilities, except facilities owned or operated by the Department of 
Energy (DOE) or by the joint Navy/DOE Naval Nuclear Propulsion Program 
(NNPP). The Federal Facilities Compliance Act of 1992 (FFCA), 42 U.S.C. 
6912, 6939c and 6961, section 102(c)(3)(B) requires DOE and NNPP to be 
in compliance with (1) an approved plan to develop capacities and 
technologies to treat a facility's mixed waste; and (2) any order 
requiring compliance with such plan issued in accordance with RCRA 
section 3021(b), 42 U.S.C. 6939c. With respect to DOE and NNPP, EPA 
enforcement of RCRA section 3004(j) will be based on the terms 
contained in the plans and orders developed pursuant to RCRA section 
3021, and not on the terms of this policy.

III. Applicability

    Mixed waste is regulated by EPA in states that are not authorized 
for the RCRA base program. As of June 30, 1998, three states and four 
territories have not received RCRA base authorization. These states and 
territories are Alaska, American Samoa, Hawaii, Iowa, Northern Mariana 
Islands, Puerto Rico, and Virgin Islands. In these states and 
territories, EPA alone administers the RCRA program and therefore this 
policy applies in these states.
    This policy is not applicable in states that are authorized for the 
RCRA ``base'' program but are not authorized for mixed waste because in 
these states, mixed waste is not subject to RCRA jurisdiction. As of 
June 30, 1998, those states are the District of Columbia, Maryland, 
Massachusetts, New Jersey, Pennsylvania, Rhode Island, Virginia, and 
West Virginia.
    Mixed waste is regulated by EPA and the state in those states that 
are authorized for both the base program and for mixed waste. In states 
authorized for mixed waste that are not authorized to implement any or 
all of the LDR regulations, EPA implements the LDR provisions for all 
waste codes which the state has not yet been authorized. As of June 30, 
1998, Indiana, Kentucky, Louisiana, Montana, Nebraska, New Hampshire, 
South Dakota, and Washington do not have authorization for a 
significant portion of the LDR program and thus this policy is 
applicable to many wastes generated in these states.
    In states that are authorized for both mixed waste and portions of 
the LDR program, the state, as well as EPA, has authority to enforce 
those portions of the LDR program for which the state is authorized. 
This policy affects only the EPA enforcement programs. States that are 
authorized for both mixed waste and the LDR may choose to follow this 
federal policy, however, it is not binding on them. Therefore, 
generators should consult with their states for clarification of the 
state's 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 portions of the LDR program. 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. Information on a state's authorization status for 
mixed waste can be found on the EPA Mixed Waste HomePage previously 
cited. EPA's State Authorization HomePage at ``http://www.epa.gov/
epaoswer/hazwaste/state/index.htm'' also provides information on the 
status of authorization for mixed waste and LDR.

IV. Responsible Management of Mixed Waste

    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 RCRA section 3004(j) 
violations), owners and operators of facilities generating and storing 
mixed wastes should undertake at least the following steps.

A. Inventory and Compliance Assessment of Storage Areas

    RCRA regulations applicable to hazardous waste storage require 
facilities to maintain a record identifying each physical location or 
unit where mixed waste is stored and the method of storage, i.e., 
container or tank, see 40 CFR 264.73(b) or 265.73(b). The regulations 
also require regular inspection of these storage areas for compliance 
with applicable RCRA standards and permit requirements, including an 
assessment of compliance with the storage facility standards of 40 CFR 
Part 264 or Part 265, Subparts I-J and DD, or the state counterparts to 
these standards (see 40 CFR 264.15 or 265.15). Facilities must maintain 
records containing the results of the inspections as required by 40 CFR 
264.73(b)(5) or 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 RCRA section 3004(j) 
violations on situations 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

[[Page 59992]]

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 subject to the LDR (see 40 CFR 264.73 or 
265.73).

C. Waste Minimization Plans

    EPA understands that many mixed waste generators have undertaken 
active measures to avoid the generation of mixed wastes. EPA continues 
to encourage mixed waste generators to develop a waste minimization 
plan (see 58 FR 31114, May 28, 1993, for guidance) to reduce or 
eliminate mixed wastes, to minimize the volume of regulated wastes 
generated, and to substitute non-hazardous materials.

D. Good Faith Efforts

    This policy is limited in scope to those LDR-prohibited mixed 
wastes for which no treatment technology or disposal capacity is 
commercially available. Because additional treatment technology or 
disposal capacity may become available at any time in the future, 
facility owner/operators should be prepared to demonstrate ongoing good 
faith efforts to locate treatment technology and disposal capacity for 
each of their mixed wastes and to utilize any and all such treatment 
technology and disposal capacity.

    Dated: October 31, 1998.
Timothy Fields, Jr.,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.

Sylvia Lowrance,
Acting Assistant Administrator, Office of Enforcement and Compliance 
Assurance.
[FR Doc. 98-29819 Filed 11-5-98; 8:45 am]
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