[Federal Register Volume 64, Number 223 (Friday, November 19, 1999)]
[Proposed Rules]
[Pages 63464-63501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29068]



[[Page 63463]]

_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 266



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

  Federal Register / Vol. 64, No. 223 / Friday, November 19, 1999 / 
Proposed Rules  

[[Page 63464]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 266

[FRN-6470-1]
RIN 2050-AE45


Storage, Treatment, Transportation, and Disposal of Mixed Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is today proposing 
to provide increased flexibility to facilities that manage low-level 
mixed waste (LLMW) and naturally occurring and/or accelerator-produced 
Radioactive Material (NARM) mixed with hazardous waste. The proposal 
also aims to reduce dual regulation of LLMW, which is subject to 
Resource Conservation and Recovery Act (RCRA) and to the Atomic Energy 
Act (AEA). We believe the changes we are proposing will lower cost and 
reduce paperwork burden, while improving or maintaining protection of 
human health (including worker exposure to radiation) and the 
environment.
    We are proposing to allow on-site storage and treatment of these 
wastes at the generator's site. Today's proposal will require the use 
of tanks/containers to solidify, neutralize, or otherwise stabilize the 
waste and would apply only to generators of low-level mixed waste who 
are licensed by the Nuclear Regulatory Commission (NRC) or an Agreement 
State.
    We also seek to exempt LLMW and hazardous NARM waste from RCRA 
manifest, transportation, and disposal requirements when certain 
conditions are met. Under this conditional exemption, generators and 
treaters must still comply with manifest, transport, and disposal 
requirements under the NRC (or NRC-Agreement State) regulations for LLW 
or NARM.

DATES: To make sure we consider your comments, they must be received on 
or before February 17, 2000.
    We are seeking comment on this proposed rulemaking from all 
interested parties.

ADDRESSES: You can send an original and two copies of your comments 
referencing Docket Number F-99-ML2P-FFFFF to (1) if using regular US 
Postal Service mail: RCRA Docket Information Center, Office of Solid 
Waste (5305G), U.S. Environmental Protection Agency Headquarters (EPA, 
HQ), 401 M Street, SW, Washington, D.C. 20460, or (2) if using special 
delivery, such as overnight express service: RCRA Docket Information 
Center (RIC), Crystal Gateway One, 1235 Jefferson Davis Highway, First 
Floor, Arlington, VA 22202. It would also be helpful, although not 
mandatory, to include an electronic copy by diskette or Internet E-
mail. In this case, send your comments to the RCRA Information Center 
on labeled personal computer diskettes in ASCII (TEXT) format or a word 
processing format we can convert to ASCII (TEXT). Please include on the 
disk label the name and version or edition of your word processing 
software as well as your name. Protect your diskette by putting it in a 
protective mailing envelope. To send a copy by Internet E-mail, address 
it to: [email protected]. Make sure this copy is in ASCII 
format that doesn't use special characters or encryption. Cite the 
docket Number F-99-ML2P-FFFFF in your electronic file. Commenters 
should not submit electronically any confidential business information 
(CBI). An original and two copies of CBI must be submitted under 
separate cover to: RCRA CBI Document Control Officer, Office of Solid 
Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, D.C. 20460.
    The RCRA Information Center is at Crystal Gateway One, 1235 
Jefferson Davis Highway, First Floor, Arlington Virginia. You may look 
at and copy supporting information for RCRA rules from 9:00 a.m. to 
4:00 p.m. Monday through Friday, except for Federal holidays. To review 
docket materials you should make an appointment by calling (703) 603-
9230. You may copy up to 100 pages from any regulatory document at no 
cost. Additional copies cost $0.15 per page. The index and some 
supporting materials are available electronically. See the 
Supplementary Information section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: For general information about this 
proposed rule, contact the RCRA Hotline, Office of Solid Waste, U.S. 
Environmental Protection Agency, Washington, D.C. 20460, at (800) 424-
9346 (toll free); or TDD (800) 553-7672 (hearing impaired). In the 
Washington, D.C. metropolitan area call (703) 412-9810 or TDD (703) 
486-3323 (hearing impaired). For information on the disposal portion of 
the proposed rule, contact Grace Ordaz at (703) 308-1130 in the Office 
of Solid Waste. For information on the storage portion of the proposed 
rule, contact Nancy Hunt at (703) 308-8762 or Chris Rhyne at (703) 308-
8658 in the Office of Solid Waste. To get copies of the reports or 
other materials referred to in this proposal, contact the RCRA Docket 
at the phone number or address listed above.

SUPPLEMENTARY INFORMATION: Follow these instructions to access the rule 
electronically on the Internet: www:http://www.epa.gov/epaoswer/
hazwaste/radio.
    The official record for this section will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record, which will also 
include all comments submitted directly in writing. The official record 
is the record maintained at the address in ADDRESSES at the beginning 
of this document. Please note, even if you commented on the March 1, 
1999 Advance Notice of Proposed Rulemaking (64 FR 10063), for your 
comments to be considered for the final rulemaking, you must again 
submit comments on this revised and expanded proposal.
    EPA responses to comments, whether the comments are written or 
electronic, will be in a notice in the Federal Register or in a 
response to comments document placed in the official record for this 
rulemaking. EPA will not immediately reply to commenters electronically 
other than to seek clarification of electronic comments that may be 
garbled in transmission or during conversion to paper form.

Table of Contents

I. Statutory Authority
II. Summary of Today's Action
    A. What regulatory changes are we proposing for on-site storage 
and treatment of LLMW?
    B. What regulatory changes are we proposing for transportation 
and disposal of LLMW and eligible NARM?
III. Why are we Proposing a Storage, Treatment, Transportation, and 
Disposal Rulemaking?
    A. Need to address dual regulation concerns
    B. Need to respond to HWIR consent decree
    C. Need to respond to a rulemaking petition from USWAG and 
concerns of other mixed waste generators regarding capacity
IV Precedent for Regulatory Flexibility in this Proposal
    A. How does the conditional exemption in the Military Munitions 
Rule work?
    B. What is our rationale for today's proposed conditional 
exemption?
V Low-Level Mixed Waste Storage and Treatment
    A. What conditional exemption for stored or treated low-level 
mixed waste are we proposing?
    1. How does the proposal facilitate decay-in-storage?

[[Page 63465]]

    2. For what time period is a storage exemption valid?
    3. What are your on-site treatment options?
    B. What is our low-level mixed waste storage and treatment 
proposal?
    1. Which generators and wastes will be eligible for the storage 
and treatment exemption?
    2. What conditions must you meet as a generator?
    3. Whom should you notify if you want to claim an exemption?
    4. What records must you keep for the exemption?
    5. How can your stored waste lose the exemption?
    6. Can your exemption be reclaimed if you fail to meet a 
condition?
    C. How will implementation and enforcement of the conditional 
exemption for storage and treatment of LLMW take place?
    1. Is this a self-implementing rule?
    2. How will we enforce the proposed storage exemption?
    D. What background information did we use for this proposal?
    E. What was the response of commenters to the ANPR?
    1. What comments did we receive concerning a conditional 
exemption for storage?
    2. What were the comments on decay-in-storage?
    3. What comments did we receive concerning treatment of waste in 
storage?
    4. What comments did we receive concerning possible conditions 
for a storage exemption?
VI Transportation and Disposal Conditional Exemption for Mixed Waste 
and Eligible Narm
    A. What regulatory relief are we providing for transportation 
and disposal proposal?
    B. Applicability of the proposal
    1. To what types of waste does this rule apply?
    2. Who could benefit from this proposal, and what is the profile 
of their waste?
    3. What other regulatory relief provisions may apply?
    C. What is the Point of Exemption?
    D. Implementation and Enforcement
    1. How will the transportation and disposal conditional 
exemption be implemented?
    2. What happens if your waste no longer meets the conditions of 
the transportation and disposal conditional exemption?
    3. Are there any additional requirements you must meet?
    4. Can your exemption be reclaimed if you fail to meet a 
condition?
    5. What can a LLRWDF do to reduce the potential applicability of 
RCRA authorities?
    E. What conditions must you meet prior to claiming the 
transportation and disposal exemption?
    1. Why are we requiring LDR treatment?
    2. Why is notification a condition for the exemption?
    3. What are the conditions for manifesting and transporting the 
exempted waste?
    4. Why must the exempted waste be disposed only in a LLRWDF 
licensed by NRC in accordance with 10 CFR 61?
    5. What is the purpose of the records that you are required to 
keep?
    6. How is the public involved?
    F. What is EPA's site-specific, risk-based variance alternative 
for disposal?
    G . How did we conduct our technical assessment for the disposal 
of treated waste at low-level radioactive waste disposal facilities?
    1. How did we assess low-level radioactive waste disposal 
facilities?
    2. What was the technical assessment we conducted?
    3. What did we conclude from our technical analyses?
    H. Key stakeholder issue
VII Regulatory Impacts
    A. What are the regulatory benefits of this rule?
    B. What are the costs of this rule?
    C. What are the economic impacts of this rule?
VIII State Authorization
IX Relationship with other RCRA and Environmental Programs
    A. What is the relationship of this proposal with other RCRA 
regulatory programs?
    1. Does this proposal change how you determine if a waste is 
hazardous?
    2. Can LLMW or eligible NARM be a nonhazardous waste under this 
proposal?
    3. How will the RCRA-exempted waste differ from wastes delisted 
under 40 CFR 260.22?
    4. Will my waste analysis plan for my RCRA-permitted TSDF 
change?
    5. Will the proposed rule change how the RCRA closure 
requirements apply to my disposal facility?
    6. How does the conditional exemption relate to RCRA air 
emission standards?
    B. What is the relationship of this rule to other environmental 
programs?
    1. How are CERCLA actions affected by this proposal?
    2. How might Clean Air Act regulations be affected?
    3. How might Clean Water Act be affected?
X Regulatory Assessment Requirements
    A. Executive Order 12866: Determination of Significance
    B. Executive Order 13132: Federalism
    C. Executive Order 12898: Environmental Justice
    D. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    E. Executive Order 13084: Consultation and Coordination with 
Indian Tribal Governments
    F. The Regulatory Flexibility Act as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996
    G. Unfunded Mandates Reform Act
    H. National Technology Transfer and Advancement Act of 1995
    I. Paperwork Reduction Act
XI List of Comments Being Requested by EPA in this Proposal
XII Supporting Documents

Acronyms Used in This Preamble

AEA--Atomic Energy Act of 1954, as amended
ALRA--As Low As Is Reasonably Achievable
ANPR--Advance Notice of Proposed Rulemaking
ARAR--Applicable or Relevant and Appropriate Requirements
BDAT--Best Demonstrated Available Technology
CBI--Confidential Business Information
CERCLA--Comprehensive Environmental Response, Compensation, and 
Liability Act
DOD--Department of Defense
DOE--Department of Energy
EEI--Edison Electric Institute
EPA--Environmental Protection Agency (referred to as ``we'' 
throughout this document)
FFCA--Federal Facilities Compliance Act
FUSRAP--Formerly Utilized Sites Remedial Action Program
GWRL--Groundwater risk levels
HSWA--Hazardous and Solid Waste Amendments of 1984
HWIR--Hazardous Waste Identification Rule
ICR--Information Collection Request
LDR--Land Disposal Restrictions
LLW--Low-Level Radioactive Waste
LLMW--Low-Level Mixed Waste
LLRWDF--Low-Level Radioactive Waste Disposal Facility
MMR--Military Munitions Rule
NAAG--National Association of Attorneys General
NARM--Naturally Occurring and/or Accelerator-produced Radioactive 
Material
NGA--National Governors' Association
NNPP--Naval Nuclear Propulsion Program
NRC--Nuclear Regulatory Commission
NTTAA--National Technology Transfer and Advancement Act
OMB--Office of Management and Budget
OSW--Office of Solid Waste
RCRA--Resource Conservation and Recovery Act
RFA--Regulatory Fairness Act
RIC--RCRA Information Center
RQ--Reportable Quantity
SARA--Superfund Amendments and Reauthorization Act
SBREFA--Small Business Regulation Enforcement Fairness Act
SQG--Small Quantity Generator
TC--Toxicity Characteristic
TRI--Toxics Release Inventory
TSDF--Treatment, Storage and Disposal Facility
UHC--Underlying Hazardous Constituent
UMRA--Unfunded Mandates Reform Act of 1995
UMTRCA--Uranium Mill Tailings Radiation Control Act
USWAG--Utility Solid Waste Activities Group
UTS--Universal Treatment Standards

Definition of Terms Used in the Preamble

    Agreement State--means a state that has entered into an agreement 
with the NRC under subsection 274b of the Atomic Energy Act of 1954, as 
amended (68 Stat. 919), to assume responsibility for regulating within 
its borders source, special nuclear, or byproduct material

[[Page 63466]]

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

Who is Eligible for This Rule?

    The conditional exemption proposed for low-level mixed waste (LLMW) 
storage and treatment applies to any mixed waste generator that has an 
NRC or Agreement State license to possess radioactive material or to 
operate a nuclear reactor, so long as the waste generator can satisfy 
the conditions set forth in this proposal.
    The transportation and disposal exemption applies to generators of 
LLMW and eligible NARM so long as they meet all specified conditions. 
Facilities potentially affected by this action include those identified 
in
Table 1.

        Table 1.--Facilities Potentially Affected by the Proposal
------------------------------------------------------------------------
                                                Examples of regulated
                 Category                            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 Institutions....  Academic institutions at all
                                             levels that are licensed by
                                             NRC, or an Agreement State,
                                             to use radionuclides for
                                             academic, biomedical, and
                                             research purposes.
Medical Facilities........................  Hospitals, medical
                                             laboratories, doctors'
                                             offices, or clinics that
                                             are licensed by NRC or an
                                             Agreement State to use
                                             radionuclides for health
                                             care purposes
Industrial Establishments.................  Private companies and
                                             institutions, including
                                             pharmaceutical companies,
                                             and research and
                                             development institutions
Governmental Facilities...................  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 be exhaustive, but rather 
provides examples of facilities likely to be affected by this proposal. 
To determine whether you are affected by this regulatory action, you 
should carefully

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examine the applicability criteria in Parts V and VI of this preamble. 
If you have any questions regarding the applicability of this section 
to a particular entity, consult the persons listed under FOR FURTHER 
INFORMATION CONTACT.

I. Statutory Authority

    The statutory basis for this rule is in Sections 2002(a), 3001, 
3002, 3004, 3005, 3006, 3007, and 3013 of the Solid Waste Disposal Act 
of 1970, as amended by the Resource Conservation and Recovery Act of 
1976 (RCRA) and the Hazardous and Solid Waste Amendments of 1984 
(HSWA), 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924, 6926, 6927 and 6934.

II. Summary of Today's Action

    In today's notice we are proposing a conditional exemption for the 
storage, treatment, transportation, and disposal of low-level mixed 
waste (LLMW) pursuant to the Hazardous Waste Identification Rule (HWIR) 
consent decree (see II. B.) regarding potential regulatory flexibility 
related to hazardous waste disposal requirements and other relief as 
appropriate for commercial mixed waste. (See Ref. 1, Consent Decree and 
Ref. 2, Side-bar Letter.) As an NRC-licensed generator who meets 
certain conditions we specify, (a) your LLMW would be exempt from some 
RCRA Subtitle C storage and treatment regulations, and (b) your LLMW 
and eligible NARM (see definitions and discussion in VI. B. 1.), would 
be exempt from some RCRA Subtitle C manifesting, transportation, and 
disposal regulations. However, your LLMW and eligible NARM waste remain 
subject to RCRA land disposal restriction (LDR) treatment standards 
under the transportation and disposal exemption.
    The ``Diagram of the Storage, Treatment and Disposal Exemptions 
Under the Proposal'' gives an overview of when waste would be 
conditionally exempt from certain RCRA hazardous waste management 
requirements. Briefly, LLMW generated and stored onsite in tanks or 
containers is exempted as long as the exemption conditions listed in 
Sec. 266.230 are met. NRC or Agreement State-licensed generators may 
treat their LLMW on-site pursuant to the limitations imposed by 
Sec. 266.235. Any generator may send LLMW and eligible NARM waste for 
disposal to a low-level radioactive waste disposal facility (LLRWDF) 
licensed by the NRC or an Agreement State, if all the conditions are 
met. Thus, certain LLMW and eligible NARM waste of NRC licensees may 
remain exempted from many RCRA requirements through much of the waste 
management process.
    If your LLMW and eligible NARM is not treated to meet LDR treatment 
standards and is sent off-site for storage, treatment or disposal, your 
waste remains subject to all RCRA Subtitle C and NRC management 
requirements. LLMW treated off-site at mixed waste treatment facilities 
to meet LDR treatment standards may be eligible for the disposal 
exemption if all conditions for the transportation and disposal 
exemption are met.
    In order to claim a conditional exemption for storage or disposal 
you must notify the RCRA program agency that you meet the conditions. 
However, if information you provide on your notification is inaccurate, 
your claim for a conditional exemption is nullified and you will be 
subject to RCRA Subtitle C enforcement.

A. What Regulatory Changes are We Proposing for On-Site Storage and 
Treatment of LLMW?

    Our proposal would allow generators of LLMW to claim a conditional 
exemption from the RCRA definition of hazardous waste for mixed wastes 
stored on-site (40 CFR 260.10). This conditional exemption acknowledges 
the protectiveness of storage of mixed waste subject to NRC regulations 
for low-level waste (LLW). During the storage of LLMW, our proposal 
would allow the conditionally exempt waste to be treated in tanks or 
containers to enable neutralization, solidification, or other 
stabilization of the hazardous portion of the waste. This regulatory 
flexibility would apply only to generators of low-level mixed waste who 
are licensed by NRC. Once your LLMW is removed from storage for further 
management, it is subject to hazardous waste management requirements 
unless it qualifies for a disposal exemption. In that case, you must 
show that it: meets the RCRA LDR treatment standards and NRC's LLW 
disposal requirements; and is destined for disposal at LLRWDFs licensed 
by NRC.

BILLING CODE 6560-50-P

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[GRAPHIC] [TIFF OMITTED] TP19NO99.001



BILLING CODE 6560-50-C

B. What Regulatory Changes Are We Proposing for Transportation and 
Disposal of LLMW and Eligible NARM?

    We are proposing a conditional exemption from hazardous waste 
transportation, and disposal requirements for LLMW, and for eligible 
NARM. (See discussion in VI.B.1.) (Throughout this document when we 
refer to the conditional exemption for transportation and disposal of 
LLMW, we also mean eligible NARM.) The transportation and disposal 
exemption would not take effect until you fulfill all of the following 
conditions: (1) Treat your waste to meet the RCRA LDR treatment 
standards; (2) notify appropriate regulatory agencies of your exemption 
claim; (3) ship your waste according to NRC and DOT shipping 
requirements for transportation of LLW using an NRC Uniform LLW 
Manifest (Form 540, 541, and 542) for immediate disposal to a facility 
licensed by the NRC or an Agreement State; and (4) maintain appropriate 
records (including LDR records) for required time periods. Meeting all 
the prescribed conditions will allow your LLMW or NARM-contaminated 
hazardous waste to be exempt from the RCRA regulatory definition of 
hazardous waste.
    Under this exemption, you may not send your conditionally-exempt 
LLMW or eligible NARM for disposal to a DOE radioactive waste disposal 
facility. Such action would make your waste subject to RCRA hazardous 
waste regulation, and potentially subject you to RCRA enforcement 
authority. Note that DOE LLMW which meets the conditions of the 
exemption for disposal may be shipped to an NRC-licensed disposal 
facility.

III. Why Are We Proposing a Storage, Treatment, Transportation, and 
Disposal Rulemaking?

    Mixed waste is regulated under multiple authorities: RCRA (for the 
hazardous component), as implemented by EPA or Authorized States; and 
AEA (for the source, special nuclear, or byproduct material component), 
as implemented by the NRC or NRC or an Agreement State (for 
commercially-generated mixed wastes), or the Department of Energy (DOE) 
(for defense-related mixed waste generated by DOE activities. NARM-
contaminated hazardous waste is also regulated under multiple 
authorities: RCRA (for the

[[Page 63469]]

hazardous component); and State law (for the NARM component), as 
implemented by a State agency designated by State law. We are proposing 
to make RCRA Subtitle C regulations more flexible so that generators of 
LLMW and eligible NARM are relieved of some dual regulatory 
requirements in managing their mixed wastes.

A. Need To Address Dual Regulation Concerns

    Members of the regulated community have informed us that the 
combination of RCRA and NRC requirements for LLMW is burdensome, 
duplicative, and costly and does not provide more protection of human 
health and the environment than that achieved under one regulatory 
regime. We are responding to these concerns about the inefficiencies of 
dual regulation, as well as concerns about the radiation exposure of 
workers.
    In addition, other mixed waste generators have expressed concerns 
about limited capacity of LLMW treatment and disposal. These concerns 
originated because RCRA Sec. 3004(j) generally prohibits the storage of 
hazardous wastes that are also subject to RCRA land disposal 
restrictions unless the storage is ``solely for the purpose of the 
accumulation of such quantities of hazardous waste as are necessary to 
facilitate proper recovery, treatment or disposal.'' Under EPA's 
regulation codifying RCRA Sec. 3004(j) we presume that the initial year 
of hazardous waste storage is for the sole purpose of accumulating a 
quantity necessary to facilitate treatment and disposal. However, if 
you store LLMW on-site for more than one year, you have the burden of 
proving that the storage is for the allowed purpose.
    Based on our information collection effort in the ANPR and 
information from mixed waste generators, we found that capacity for the 
treatment and disposal of certain LLMW is not always available (that 
is, LLMW containing certain radionuclides are not allowed to be 
disposed at the only LLMW disposal unit--licensed by the State of Utah, 
an NRC Agreement State). We also found that commercial mixed waste 
treatment facilities have not been willing to accept LLMW for treatment 
without viable disposal options. Since mixed waste disposal capacity is 
lacking, some generators of LLMW store the waste on-site. In addition, 
we found that the possibility of siting a new LLMW disposal facility is 
extremely low. Because of the very limited LLMW disposal capacity and 
the low probability of a disposal facility being built in the near 
future, we believe it is appropriate to provide safe and legal 
alternatives for the disposal of LLMW. We also believe that the 
availability of alternate disposal capacity would enable disposal of 
``legacy'' wastes currently in on-site storage by generators of LLMW.
    We have assessed NRC regulations for storage and disposal of LLW 
and compared them with EPA's regulations for hazardous waste storage, 
treatment, transportation, and disposal. Our review suggests that given 
the NRC's regulatory controls, human health and environmental 
protection from chemical risks would not be compromised if we deferred 
to NRC LLW management practices. Through this action, we are proposing 
regulatory relief intended to allow the disposal of certain LLMW (such 
as legacy waste requiring long-term storage due to lack of treatment 
and disposal capacity), that have, until now, been stored on-site by 
NRC licensees as mixed waste subject to both RCRA permitting and NRC 
licensing requirements.
    A similar situation exists at DOE facilities. Available information 
suggests that currently DOE cannot treat some of its LLMW due to a lack 
of treatment capacity. DOE operations, therefore, must store their LLMW 
pursuant to a RCRA storage permit. However, DOE is also subject to 
state compliance orders and other requirements for treatment of its 
mixed waste as a result of the Federal Facility Compliance Act of 1992 
(FFCA, P.L. 102-386, October 6, 1992). This rulemaking effort may 
result in removal of some DOE ``legacy'' waste from storage if DOE: 
increases its own mixed waste treatment capacity or uses commercial 
mixed waste treatment capacity to meet land disposal treatment 
standards; and disposes of LLMW treated to LDR treatment standards in a 
LLRWDF licensed by NRC by meeting the conditions specified to qualify 
for an exemption from disposal of LLMW as a RCRA hazardous waste.
    We seek comment on the ways we propose to address the issue of dual 
regulation of LLMW storage, treatment, transportation, and disposal.

B. Need To Respond to HWIR Consent Decree

    The Edison Electric Institute (EEI), the Utility Solid Waste 
Activities Group (USWAG), and the Nuclear Energy Institute (NEI)--trade 
groups representing commercial nuclear power plants--were parties to 
settlement discussions regarding the deadline for the final Hazardous 
Waste Identification Rulemaking, ETC v. Browner, C.A. No. 94-2119 (TFH) 
(D.D.C.). On April 11, 1997, the court entered a consent decree which 
requires EPA to propose revisions to the mixture and derived-from 
rules, 40 CFR 261.3(a)(2)(iv) and (c)(2)(I) and to seek comment on 
eleven items listed in the decree with respect to those revisions. One 
of the eleven items concerns an exemption from RCRA hazardous waste 
disposal regulations for nuclear power plant low-level mixed waste. The 
proposal must also request comment on other regulatory relief for these 
wastes, if EPA finds that any other relief would be appropriate. (See 
ANPR for further information.)
    Today's notice requests comment on EPA's proposal to provide 
regulatory relief to LLMW generators and other regulatory relief as 
described in this document. In a separate notice (see Docket # F-99-
WH2P-FFFFF), EPA is proposing revisions to the mixture and derived-from 
rules and requesting comment on the other ten items set forth in the 
consent decree. Those proposed revisions include an exemption for mixed 
waste that is managed in compliance with the requirements in part 266, 
subpart N proposed here today.

C. Need To Respond to a Rulemaking Petition From USWAG and Concerns of 
Other Mixed Waste Generators Regarding Capacity

    The Utility Solid Waste Activities Group (USWAG), a national 
organization of power companies, petitioned the U.S. EPA on January 13, 
1992 to request an amendment to RCRA Subtitle C regulations governing 
storage of mixed wastes. The USWAG organization cited difficulties in 
complying with RCRA Subtitle C regulations because of limited treatment 
technology and disposal capacity for some mixed wastes. (See discussion 
in ANPR for additional information.) We regard today's action as a 
response to the USWAG petition.
Policy of Lower Enforcement Priority for Mixed Waste
    Recognizing this capacity difficulty, we issued a policy on the 
lower priority of enforcement of the storage prohibition contained in 
Sec. 3004(j) of RCRA. (See 56 FR 42730; August 29, 1991) Sec. 3004(j) 
prohibits storage of a land disposal restricted waste (including mixed 
waste), except for the purposes of the accumulation of such quantities 
of hazardous waste necessary to facilitate proper recovery, treatment, 
or disposal. Because treatment technology or disposal capacity was 
still unavailable for some mixed wastes, we extended this policy on 
October 31,

[[Page 63470]]

1998. The lack of adequate treatment technology or disposal capacity 
for some mixed waste streams necessitated storage in violation of land 
disposal restrictions for storage of mixed waste. The policy stated 
that violators who: were faced with the impossibility of complying with 
the RCRA regulations; had a RCRA storage permit; and were storing their 
wastes in an environmentally responsible manner would be a low 
enforcement priority for EPA. The extension of the policy expires 
October 31, 2001. (See 63 FR 59989; November 6, 1998.) This proposed 
rulemaking is expected to replace the current enforcement policy.

IV. Precedent for Regulatory Flexibility in This Proposal

    We are proposing regulatory flexibility modeled on the conditional 
exemption developed for waste military munitions in the Military 
Munitions Rule (40 CFR part 266, Subpart M) published February 12, 1997 
(62 FR 6622-6657).

A. How Does the Conditional Exemption in the Military Munitions Rule 
Work?

    The Military Munitions Rule (MMR) identifies when conventional and 
chemical military munitions become a hazardous waste subject to RCRA 
Subtitle C. In the MMR, EPA developed a conditional exemption to 
provide regulatory flexibility to storers and transporters of non-
chemical waste military munitions. Under the conditional exemption, 
non-chemical waste military munitions that normally meet the definition 
of ``hazardous waste'' are not regulated under RCRA Subtitle C as a 
hazardous waste so long as the facilities storing or transporting 
munitions meet all of the conditions for storing and transporting non-
chemical waste munitions listed in the rule. (For the complete text of 
the Military Munitions Rule, see 62 FR 6621, February 12, 1997.)
    The Court of Appeals upheld all aspects of the MMR in Military 
Toxics Project v. EPA, 146 F. 3rd 948 (D.C. Cir. 1998). The court 
agreed that ``Congress has not spoken directly to the issue of 
conditional exemption,'' and upheld as reasonable EPA's interpretation 
that Sec. 3001(a), which requires the Administrator to promulgate 
criteria for identifying and listing wastes that should be subject to 
Subtitle C requirements, allows the use of conditional exemptions. 
(Ibid.) The court also agreed with EPA that ``where a waste might pose 
a hazard only under limited management scenarios, and other regulatory 
programs already address such scenarios, EPA is not required to 
classify a waste as hazardous waste subject to regulation under 
Subtitle C.'' (Ibid. at 958.)

B. What Is Our Rationale for Today's Proposed Conditional Exemption?

    In the MMR, EPA conditionally exempted stored waste military 
munitions and transported from one military owned or operated facility 
to another. However, waste military munitions treatment, and disposal 
remain subject to RCRA Subtitle C. We take a comparable approach for 
generators of LLMW in this proposed rulemaking in that we propose to 
provide a conditional exemption for the storage, treatment, 
transportation, and disposal of LLMW that is also subject to NRC or 
Agreement State regulation. We base this proposal on the NRC or the NRC 
Agreement State licensing process and regulatory requirements, and 
their adequacy in addressing risks from radioactivity and RCRA 
hazardous constituents. By promulgating a conditional exemption, we can 
eliminate redundant or dual requirements where wastes are managed 
safely and mismanagement is unlikely; the NRC-required safeguards are 
in place (for example, inspection, monitoring, record keeping, 
reporting); and penalties or other consequences may be imposed if the 
governing regulatory framework is not followed.
    In proposing a conditional exemption from RCRA Subtitle C 
regulation for storage/treatment of NRC-licensee generated LLMW, we 
evaluated certain key factors. First, we reviewed the licensing 
requirements and NRC standards for the storage and treatment of LLW to 
determine whether NRC regulation of stored low-level waste (LLW) 
adequately protects against possible risks from RCRA hazardous 
constituents in mixed waste. Although NRC regulation and oversight are 
designed primarily for radiation risks, the NRC, the regulated 
industry, and others have argued that these standards largely duplicate 
RCRA requirements and thus, protect against chemical risks to human 
health and the environment. Second, we compared NRC low-level waste and 
EPA hazardous waste storage and treatment requirements. (See Ref. 4, 
EPA's comparison of storage and treatment requirements, for details.) 
Our analysis was done independently of similar studies performed by 
USWAG, the Electric Power Research Institute, and the Nuclear 
Management and Resources Council, Inc. (who represent members of the 
power generation industry) regarding applicable NRC standards. (See 
Ref. 6 and 16 for the industry studies.) These other studies concluded 
that the technical design and operating standards of the NRC meet or 
exceed RCRA standards in virtually all respects, though there were 
differences noted in emphasis (performance based rather than 
proscriptive requirements) and implementation of NRC licensing 
requirements. Third, we reviewed the compliance history of licensed 
facilities. We looked at the documentation of incidents involving the 
storage and on-site treatment of radioactive wastes by LLMW generators 
who are NRC licensed users of radionuclides. Our review of documented 
information suggests that NRC licensed facilities almost universally 
have good low-level waste management safety records. (See Ref. 3, EPA's 
compliance record review.) Based on our evaluation of these factors, we 
concluded that low-level mixed wastes stored and treated at these 
facilities are not likely to be mismanaged, and that regulation under 
RCRA Subtitle C does not increase protection to human health and the 
environment for these wastes during on-site storage and treatment.
    In addition to storage and treatment requirements, we reviewed NRC 
requirements and the practices of low-level waste disposal facilities 
to determine if they provide human health and environmental protection 
similar to that achieved upon the disposal of low-level mixed waste at 
RCRA Subtitle C disposal facilities. (Ref. 7, Technical assessment of 
LLRWDFs) Our review suggests that NRC regulations for disposal 
facilities provide adequate protection so long as the hazardous 
constituents are treated to LDR treatment standards prior to disposal. 
Therefore, compliance with LDR treatment standards is required to 
obtain the conditional exemption for disposal of LLMW or eligible NARM. 
Disposal facilities licensed by the NRC will be accepting for disposal 
conditionally-exempt LLMW as a low-level waste. We believe that LLMW or 
eligible NARM disposed at these facilities are not likely to be 
mismanaged and, therefore, RCRA Subtitle C regulation is not necessary 
to protect human health and the environment.

V. Low-Level Mixed Waste Storage and Treatment

    We are proposing a conditional exemption from RCRA Subtitle C 
requirements to provide regulatory flexibility related to storage and 
treatment for (1) the on-site storage of low-level mixed waste if 
specified conditions are met; and (2) the on-site treatment of low-
level mixed waste in qualified tanks or containers (40 CFR 262.34). 
This regulatory flexibility applies to any generator of LLMW who

[[Page 63471]]

is an NRC licensee licensed to manage radioactive materials.

A. What Conditional Exemption for Stored or Treated Low-Level Mixed 
Waste Are We Proposing?

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

[[Page 63472]]

Also indicate how this limitation would affect your management of the 
waste.
---------------------------------------------------------------------------

    \1\ Note: The NRC licensee is not required to immediately 
monitor the waste after decay of 10 half-lives. Prior to monitoring 
there may be an interval when the waste is hazardous only. However, 
the lower cost of diposing of hazardous rather than LLMW should 
serve to encourage prompt monitoring and disposal.
---------------------------------------------------------------------------

3. What Are Your On-Site Treatment Options?
    We are proposing to allow the on-site treatment of LLMW during a 
storage exemption from hazardous waste regulation under the conditions 
listed above for the storage conditional exemption. In addition, the 
mixed waste must be: (a) treated on-site; and (b) physically or 
chemically treated in a tank or container in accordance with the 
generator's NRC license requirements. If these conditions are met, then 
a RCRA treatment permit during storage will not be required.
    RCRA allows accumulation and treatment of hazardous waste in a tank 
or container within 90-270 days of generation of the waste without a 
permit provided generators comply with the standards for storage tanks 
and containers. An NRC license may allow solidification, 
neutralization, or other stabilization of LLW in the tank or container. 
If the waste also includes RCRA characteristic or listed hazardous 
material, then a RCRA permit is normally required if the waste is not 
treated within 40 CFR part 262 accumulation time limits. In this 
proposal, we are not requiring a RCRA treatment permit from a generator 
if the on-site treatment is allowed for LLW under the facility's NRC 
license. Such treatment may, for example, allow cement to be added to a 
legacy waste (see definitions at the beginning of this proposal) stored 
in a container such that it will then be able to meet LDR requirements. 
Or a mixed waste may be treated chemically to neutralize its 
corrosivity so that it may be safely stored in a tank or container.
    EPA's regulations governing on-site storage and treatment in tanks 
and containers are generally the same as NRC's. Without the proposed 
conditional exemption, treatment of legacy waste would require a 
generator to obtain a permit to address an expired RCRA Part 262 
accumulation time limit. We are proposing to allow the types of 
treatment included in NRC licenses to manage the radioactive material 
in the waste. We believe that additional RCRA requirements would not 
increase protection of human health and the environment. Nevertheless, 
more specific controls are appropriate for some forms of treatment, 
such as thermal treatment (as defined in 40 CFR 260.10) or 
incineration, because of the complexity of the treatment and the 
specificity of RCRA requirements. (Thermal treatment is not now allowed 
under RCRA without a permit even if done within 90 days of generation.) 
For that reason, under the conditional exemption for on-site storage of 
LLMW, we are not including on-site thermal treatment of LLMW by 
generators without an appropriate RCRA permit.

B. What is Our Low-Level Mixed Waste Storage and Treatment Proposal?

    We describe our proposal in the following sections which cover what 
generators and wastes are eligible, what conditions must be met, and 
how an exemption is claimed.
3. Which Generators and Wastes Will be Eligible for the Storage and 
Treatment Exemption?
    Generators of LLMW regulated by the NRC will be eligible for the 
proposed storage exemption. The types of facilities that may be 
affected include nuclear power plants, fuel cycle facilities, 
pharmaceutical companies, medical and research laboratories, 
universities and academic institutions, hospitals, and some industrial 
facilities. We describe eligible wastes in Sec. 266.225 of this 
proposal.
4. What Conditions Must You Meet as a Generator?
    Conditions in Sec. 266.230 which you, as a generator, must meet to 
qualify for the exemption include the following:
    (a) You must have a valid NRC license. Our proposed exemption is 
predicated on our finding that NRC oversight provides the regulatory 
control necessary to ensure that the hazardous portion of an exempted 
waste will not be mismanaged. It is the NRC license, issued and 
enforced by an independent government agency, that is the basis of the 
proposed exemption.
    (b) You must comply with the requirements of your NRC license for 
storing low-level mixed waste. We believe that adherence to NRC 
licensing conditions is important to the safe storage of the hazardous 
portion of the LLMW stream. As a result of comments we received on the 
ANPR, we are now requesting comment on whether we should increase the 
specificity of this condition by limiting it to the kinds of NRC 
requirements that if violated may result in endangerment of human 
health or the environment. For example, we could include violation of 
those terms and conditions that result in filing a report under 10 CFR 
Subpart M, Section 20.2201-2203. We seek comment on whether this 
condition should be: broad (and include the loss of the exemption if 
any LLW storage requirement of the NRC license is not met); or more 
specific (and limit the loss of the exemption to those violations which 
may result in an environmental impact).
    (c) You must comply with Sec. 266.225 which requires that the 
eligible waste be subject to regulation by the NRC. The proposal also 
requires that the waste be generated ``on-site'' at the facility 
seeking the exemption. (See 40 CFR 260.10 f.) For the purposes of this 
conditional exemption, we consider your mixed waste to be on-site if 
you can move your waste without a RCRA manifest from a storage unit at 
the point of generation to another storage/accumulation area which you 
own or operate (with the same RCRA ID number). For example, a LLMW 
generator may transfer waste from one location to another storage 
location so long as both the locations are owned by the same entity 
such as a university, or pharmaceutical firm, and are operated under 
the same RCRA ID number or same NRC license. Thus, under our proposal, 
commercial mixed waste processing facilities will not be eligible for 
this exemption for wastes received from their customers. Finally, the 
proposal requires that the waste be compatibly stored in tanks, or 
containers. We do not believe other storage units (for example, surface 
impoundment units) are appropriate storage devices under this proposal. 
Commenters on the ANPR suggested we extend the conditional exemption to 
wastes stored ``off-site.'' We request comment regarding both the 
definition of ``on-site'' and the appropriateness of extending a 
conditional exemption to facilities that own/operate storage units that 
do not meet our current definition of ``on-site.'' This conditional 
exemption applies only to stored waste which is generated and owned by 
the same facility. We also seek comment on whether the conditional 
exemption should include a storage facility which serves as a 
consolidation point for a single entity. For example, a university 
storage facility that serves several noncontiguous laboratories on a 
campus which have the same NRC license, or which have the same RCRA 
hazardous waste generator identification number.
    (d) You must notify us (the EPA Region or the RCRA Subtitle C 
Authorized State Agency) by certified mail, return receipt requested, 
that you claim the exemption for a storage unit containing low-level 
mixed waste. Your notification must be signed by the owner, operator, 
or other appropriate official of your facility. Notification of your 
claim should be made either within 90 days of the effective date of 
this rule in your State or within 90 days of when a storage unit is 
first used to store low-level mixed waste for which

[[Page 63473]]

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

[[Page 63474]]

6. Can Your Exemption be Reclaimed if You Fail to Meet a Condition?
    This proposed conditional exemption rulemaking envisions a self-
implementing process. The exemption is lost at the time of non-
compliance. EPA needs to take no action to remove the exemption. 
However, if your waste loses the conditional exemption, you may reclaim 
your exemption if you return to compliance with all conditions in 
Sec. 266.230. You must send the RCRA program agency a written notice 
that you are reclaiming your exemption. Your notice must do the 
following:
     Explain the circumstances of the failure which caused your 
waste to lose the exemption;
     Certify that your waste is in compliance with all 
conditions as of the date you reclaim the exemption;
     Demonstrate that the failure is not likely to recur 
because of specific steps (list them) you have implemented in your 
LLMW-related compliance activities; and
     Include any additional information you would like us to 
consider regarding your reclaim notice.
    If subsequently we find that a reclaimed conditional exemption is 
inappropriate because it is not protective of human health or the 
environment, then we may terminate the conditional exemption which was 
reclaimed.

 C. How Will Implementation and Enforcement of the Conditional 
Exemption for Storage and Treatment of LLMW Take Place?

1. Is This a Self-Implementing Rule?
    Yes, a conditional exemption is in effect as of the date of the 
claim, and is lost automatically when the generator fails to comply 
with the conditions.
2. How Will We Enforce the Proposed Storage Exemption?
    We will consider non-compliant facilities to be subject to RCRA 
Subtitle C from the time of noncompliance. Utilities or other LLMW 
generators that claim the conditional exemption, but fail to store and/
or treat the LLMW in compliance with the provisions of the exemption, 
would no longer be exempt from the applicable provisions of RCRA. 
Moreover, imminent and substantial endangerment provisions under 
Sec. 7003 of RCRA will continue to apply to conditionally exempt mixed 
waste as a safeguard in the unlikely event of a release which could 
pose a health or environmental threat.
    We are proposing the storage exemption because of the regulatory 
framework in place governing low-level radioactive component of LLMW. 
The NRC has a ``General Statement of Policy and Procedure for NRC 
Enforcement Actions'' (NUREG-1600) which states the NRC's policy 
regarding enforcement. This policy provides significant consequences 
for violating NRC or license requirements and takes into consideration 
the specific circumstances of a particular case. For example, if a 
nuclear power plant is found to have violated the NRC license, or tie-
down conditions of the license (see definition at the beginning of this 
preamble), the nuclear power plant (and the responsible person) may be 
subject to substantial civil and criminal penalties. Based on these 
provisions, licensed facilities have incentives to properly manage 
stored waste.

D. What Background Information Did we Use for This Proposal?

    To determine the protectiveness of NRC management requirements for 
LLMW, we researched the LLW storage provisions of NRC and material 
licenses, reviewed NRC compliance data on violations related to storage 
of LLW, and compared the regulatory framework of EPA and NRC related to 
waste management. Overall our comparison studies found that safeguards 
were in place which would ensure the protection of human health and the 
environment during storage of LLW and LLMW.
Review of NRC License Requirements
    We researched NRC's regulatory and licensing framework under which 
low-level waste (LLW), and therefore LLMW, is stored by waste 
generators. We examined provisions concerning the on-site storage of 
LLW to assess whether these requirements are protective of human health 
and the environment with respect to potential releases of hazardous 
waste constituents. We found that NRC and Agreement States regulate 
licensees through the issuance of performance-based regulations, 
regulatory guides, generic communications (Generic Letters and 
Information Notices), and NUREGs. NRC uses these tools to guide 
licensees on how to meet the intent of the regulations. These documents 
work together to enable the NRC and Agreement States to ensure that 
nuclear power facilities and other licensees are operating in a safe 
manner. For example, on November 10, 1981 NRC issued Generic Letter 81-
38, ``Storage of Low-Level Radioactive Wastes at Power Reactor Sites,'' 
and enclosure, ``Radiological Safety Guidance for Onsite Contingency 
Storage Capacity.'' In this generic letter, NRC discussed its position 
on proposed increases in storage capacity for low-level wastes 
generated by normal reactor operation and maintenance and stated that 
the safety of the proposed increase in capacity must be evaluated by 
the licensee under the provisions of 10 CFR 50.59. The NRC also 
attached a radiological safety guide to this letter. This guide was 
developed for the design and operation of interim contingency low-level 
waste storage facilities, and stated that necessary design features and 
administrative controls would be dictated by such factors as the waste 
form, concentrations of radioactive material in individual waste 
containers, a total amount of radioactivity to be stored, and 
retrievability of waste. NRC also noted that this guidance document 
should be used in the design, construction and operation of storage 
facilities and that the NRC would judge the adequacy of 10 CFR Part 
50.59 evaluations based on compliance with the guidance. (NRC also 
referenced IE Circular No. 80-19, dated August 22, 1980, as providing 
information on preparing 50.59 evaluations for changes to radioactive 
waste treatment systems).
    Though NRC regulations found in the Code of Federal Regulations 
concerning the generation, storage, and treatment of LLW are 
performance-based (for example, no releases/leaks), rather than 
prescriptive as in RCRA (where types of drums and waste management are 
specified to prevent leaks), the NRC-enforceable tie-down conditions 
found in individual licenses based on our review provide adequate 
protection to human health and the environment from exposure to 
hazardous wastes during storage as well as RCRA regulatory 
requirements. A compilation of the NRC documents that we reviewed can 
be found in the docket for today's proposal. (See Ref. 3, EPA's 
compliance history review.) A discussion of our evaluation of NRC's 
licensing framework and how it provides protection of human health and 
the environment when compared with the RCRA regulations is discussed in 
a later paragraph.
Research on Compliance Records of NRC and Agreement State Licensees
    In addition to comparing NRC's and our storage requirements, we 
researched compliance records related to NRC radiation controls for 
nuclear power plants and other licensees, to determine if there were 
storage-related releases or mismanagement of LLW. To provide a baseline 
for the comparison of NRC LLW violations, we queried two of EPA's 
generator information management systems--the Biennial

[[Page 63475]]

Reporting System (BRS) and the Resource Conservation and Recovery 
Information System (RCRIS)--to obtain the number of RCRA violations.
    Using BRS data for 1995, 18,497 facilities were identified as 
having generated hazardous waste (including small quantity generators). 
These ``records'' were merged with the information from RCRIS and then 
sorted by RCRIS violation area codes. The violations were sorted by 
group (generator, other, treatment, and transporter) and by state. 
Based on this process, we identified a total of 4,547 violations by a 
total of 1,352 facilities (or 7.3% of the 18,497 facilities). Of the 
4,547 violations, 3,355 resulted from the noncompliance with the 
generator requirements (manifesting, record keeping, time-in-storage, 
reporting, etc.), and of the 3,355 generator violations, 142 involved 
mixed waste.
    To review the NRC facility compliance records, we reviewed a number 
of enforcement reports for both NRC enforced and Agreement State 
enforced licensing programs. We did not review every licensee's record. 
However, enough data were reviewed to demonstrate that the number of 
violations reported (on a percentage basis) by NRC for both nuclear 
power reactors (directly licensed by NRC) and material licensees 
(generally licensed by Agreement States) compares favorably with the 
percentage of violations reported by EPA. Fines, penalties, and other 
consequences serve to deter violations. Based upon the compliance data, 
the industries' record is good and mismanagement of stored mixed waste 
is unlikely. We conclude that regulation under Subtitle C is unlikely 
to significantly improve that record.
    For further information on applicable NRC regulations refer to 10 
CFR part 20 subpart I. Information regarding NRC's regulations, or 
guidance documents may be obtained by either contacting the NRC Public 
Document Room, at 2120 L Street, NW, Lower Level, Washington, D.C. 
20037 (202-634-3273 or 800-397-4209, Monday through Friday, 8:30 a.m. 
to 4:15 p.m.) or by visiting NRC's Internet web page at http://
www.nrc.gov.
 Comparison of Regulatory and Management Requirements of EPA & NRC
    We compared NRC documents used in license preparation with the 
permitting framework established under RCRA. The technical design and 
operating standards of the NRC licensing program meet or exceed RCRA 
standards in virtually all respects, though there were differences in 
certain procedural requirements and in areas unrelated to actual 
discharge of hazardous waste from storage (e.g., unit closure 
requirements). Based on our review, we do not believe these differences 
undermine protection of human health and the environment, or that the 
superimposition of RCRA specific standards significantly increases 
protection. (See Ref. 4, EPA's comparison of EPA and NRC storage 
requirements). Relevant NRC licensing criteria are in the docket for 
today's rulemaking, and may also be obtained by contacting the NRC 
public document room at 202-634-3273 or accessing the NRC web site 
(http://www.nrc.gov). These criteria, while designed primarily to 
minimize radiation risk, also address risk posed by byproduct material 
in general, including hazardous constituents. Because of the unique 
nature of mixed wastes, migration of hazardous constituents does not 
occur except in the presence of radionuclides. Therefore, activities 
performed by a licensee to safely store or address the release of the 
radioactive portion of the mixed waste will also result in the safe 
storage of the chemical components of the LLMW matrix.
    The applicability of NRC licensing standards to mixed waste in 
storage is the major reason for our belief that--in specified 
circumstances--it is not necessary to also subject these wastes to RCRA 
storage regulation.
Conclusions
    These studies demonstrate that the NRC regulatory and licensing 
program will adequately control risks from hazardous constituents as 
well as radioactive material. There are safeguards in place based upon 
the NRC regulatory framework during the conditionally-exempt storage of 
LLMW. As stated by the court in the MMR ``where a waste might pose a 
hazard only under limited management scenarios, and other regulatory 
programs [the NRC] already address such scenarios, EPA is not required 
to classify a waste as hazardous waste subject to regulation under 
Subtitle C.''

E. What Was the Response of Commenters to the ANPR?

    On March 1, 1999, we published and advance notice of proposed 
rulemaking (64 FR 10063) for three reasons. First, we wanted to 
introduce potential strategies for making our regulations more flexible 
for generators that treat and/or store LLMW on site. Second, we asked 
members of the regulated community and general public for feedback on 
our strategies and whether we should consider other approaches for 
providing relief from the dual, EPA and NRC, regulation of mixed waste. 
Lastly, we asked LLMW generators to provide us with additional 
information on the volumes, composition, and management practices 
(including procedures and associated costs of treatment and storage) of 
their mixed waste.
    We received comments from 69 commenters who represented academia, 
TSDFs, contractors, federal agencies, medical institutions, industrial 
users, the nuclear power industry, the public, state governments, and 
trade groups/law firms.

Availability of Comment Summary

    Copies of all the public comments received by EPA, along with our 
comment summary document are available for viewing in either hard copy 
or electronic format by following the instructions presented in the 
beginning of this document. ( See Ref. 5, a summary of comments 
received on the ANPR.) A detailed response to significant comments 
received on the ANPR and the proposal will be available in the docket 
for the final rulemaking.
1. What Comments Did We Receive Concerning a Conditional Exemption for 
Storage?
    We received a favorable response from most commenters concerning a 
conditional exemption for storage. The vast majority (87%) of the 
commenters supported the concept of providing regulatory flexibility to 
generators of LLMW. Many of these commenters made suggestions for 
either increasing or decreasing the level of flexibility and the degree 
to which EPA should remain involved in the implementation and 
enforcement of any conditional exemption. Other commenters (6%) 
provided suggestions for improving the effectiveness of the proposed 
approaches, but remained silent as to whether they supported the 
overall concept. The remaining commenters (7%) opposed EPA's concept 
for various reasons.
    We received 47 comments supporting the concept of a conditional 
exemption for on-site storage of LLMW at nuclear power plants. Several 
commenters, primarily universities, suggested the conditional exemption 
should be extended to wastes stored ``off-site.'' Thirty-four (72% of 
the supportive commenters) commenters believed that the scope of the 
conditional storage exemption should include all material licensees 
that have either a NRC or Agreement State license for LLMW. Several 
commenters noted that non-reactor facilities generate most of the mixed 
waste in the United States and

[[Page 63476]]

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

[[Page 63477]]

this provision is consistent with existing NRC requirements. However, 
this commenter did not agree with the requirement for a written report 
within 5 days, noting that the standard NRC requirement for submitting 
a written report to NRC is 30 days. The commenter recommends that the 
reporting requirements should not be more stringent than NRC 
requirements.

VI. Transportation and Disposal Conditional Exemption For Mixed 
Waste and Eligible NARM

    Regarding transportation and disposal, we are proposing regulatory 
flexibility related to the manifest, transportation, and disposal of 
treated LLMW or eligible NARM. In the sections below, we will discuss 
the following topics: the regulatory relief we are proposing; the 
applicability of the proposal; the point at which the exemption would 
apply; implementation and enforcement aspects of the proposal; the 
rationale behind the requirements that we are proposing; the technical 
analysis we have conducted on the proposed option; and stakeholder 
issues.

A. What Regulatory Relief are we Providing for Transportation and 
Disposal?

    We are proposing to conditionally exempt LLMW or eligible NARM from 
RCRA Subtitle C hazardous waste manifest, transportation, and disposal 
requirements if all of the proposed conditions are met. To be eligible 
for the exemption, the RCRA Subtitle C exempted waste must be managed 
as a low level radioactive waste (LLW) or NARM waste in accordance with 
NRC, or Agreement State regulations. This proposal is based on our 
determination that LLMW or eligible NARM mixed waste, if managed 
pursuant to the NRC or Agreement State regulations for manifest, 
transportation and disposal of LLW, would provide sufficient protection 
of human health and the environment during the manifest, transportation 
and disposal of a treated RCRA hazardous waste (See section VI. G. for 
details).
    With today's action, we anticipate that MW generators and treaters 
would have considerably more disposal capacity available to them. 
Currently, there is only one commercial mixed waste disposal facility 
while there are three LLRWDFs licensed by the Agreement States. 
Consequently, commercial MW generators, with an estimated annual waste 
generation rate of approximately 140,000 cubic feet of LLMW, would be 
able to move those wastes that can be treated to meet LDR standards to 
disposal.
    The conditions for the transportation and disposal exemption are 
listed in Sec. 266.315 which includes the following:
     Meet LDR treatment standards in accordance with one of the 
following:
     Treatment at a RCRA-permitted mixed waste treatment 
facility;
     Treatment on site under the provisions of the conditional 
exemption from the RCRA storage and treatment requirements proposed 
today for NRC or Agreement State licensees; or
     Without treatment, if the ``as generated'' hazardous waste 
mixed with LLW or eligible NARM meets the LDR treatment requirements.
     Send a notification package to the following agencies and 
receive written confirmation that they have received the package:

--The RCRA program agency with jurisdiction over your MW;
--The RCRA program agency in the State where the NRC or Agreement 
State-licensed low level radioactive waste disposal facility (LLRWDF) 
receiving your waste is located; and
--NRC or Agreement State Agency regulating/licensing the LLRWDF 
receiving your waste for disposal.

     Meet NRC 10 CFR 71.5 or Agreement State transportation 
requirements, and NRC 10 CFR 20.2006 or Agreement State manifest 
requirements even if you self-regulate under the authority of Atomic 
Energy Act.
     Ensure that the exempted waste (meeting LDR treatment 
standards) is disposed at a LLRWDF pursuant to NRC or Agreement State 
regulations in accordance to 10 CFR 61. (We are requiring that the 
RCRA-exempt LLMW, or eligible NARM, be disposed in containers that meet 
the waste packaging, waste form and waste integrity requirements of 
NRC.)
     Retain all records related to the conditional exemption 
(including the necessary LDR records) as specified in Sec. 266.365.
    Exempted waste would continue to be regulated by NRC or Agreement 
State during subsequent transportation and disposal. We believe NRC or 
Agreement State regulations for the manifest, transportation, and 
disposal provide adequate protection for human health and the 
environment from the risks posed by LLMW treated to LDR treatment 
standards. For transportation, as discussed in VI.E.3., treating waste 
to LDR treatment standard levels reduces toxicity and mobility of 
hazardous constituents remaining in the waste. Thus, transportation of 
the treated waste according to the requirements for low level 
radioactive waste would be adequate. In addition, the exempted waste 
must not be in a liquid form, as specified by NRC or Agreement State 
regulations for the disposal of LLW. Therefore, if spilled during 
transportation, the exempted waste could be contained relatively 
easily. As a result, the likelihood of exempted waste contaminating the 
environment and endangering human health during transportation would be 
low.
    We also believe that LLMW, or eligible NARM, meeting LDR treatment 
standards poses insignificant risks when disposed of in LLRWDFs 
according to the requirements set by NRC or Agreement State according 
to 10 CFR 61. Our technical analysis showed that NRC or Agreement State 
requires adequate controls to protect against radiation hazards at 
LLRWDFs. We believe that these landfills would also protect against the 
chemical hazards of LLMW in the absence of RCRA disposal requirements, 
so long as the LLMW, or eligible NARM, meets the LDR treatment 
standards and is disposed at a LLRWDFs licensed by NRC or an Agreement 
State. (See discussion in
VI. G.).

B. Applicability of the Proposal

1. To What Types of Waste Does This Rule Apply?
    The conditional exemption for disposal applies only to LLMW (a RCRA 
hazardous waste as defined in 40 CFR part 261 mixed with a low level 
radioactive waste as defined in 10 CFR 61.2) or eligible NARM (as 
defined in this proposal--a RCRA hazardous waste mixed with a NARM 
waste which meets the acceptance criteria of a LLRWDF licensed by NRC 
or an Agreement State). The exemption does not apply to a RCRA 
hazardous waste mixed with high level radioactive waste, or transuranic 
waste.
    We are proposing to include eligible NARM waste in the conditional 
exemption at the request of a state agency regulating the radioactive 
material. (See Ref.11.) NARM waste is not regulated by NRC. Neither is 
NARM currently regulated under RCRA Subtitle C authority. In practice, 
NARM waste has been regulated by the States under State law, or by DOE 
under DOE Orders. Most of the states are currently regulating NARM 
waste under their radiation control program. NARM waste mixed with a 
RCRA hazardous waste is managed under both RCRA and state radiation 
control programs in most states. Because of this dual regulation, we 
are proposing that the exemption

[[Page 63478]]

also apply to eligible NARM waste. However, we are requiring that the 
NARM waste meet the acceptance criteria of a LLRWDF licensed by NRC or 
an Agreement State in accordance with 10 CFR 61. This restriction is 
necessary because our technical analysis is based in part on licensing 
requirements under 10 CFR 61. We are seeking comments and supporting 
information concerning the applicability of this transportation and 
disposal proposal to eligible NARM waste.
2. Who Could Benefit From this Proposal, and What is the Profile of 
Their Waste?
    All generators of LLMW or NARM waste can potentially benefit from 
this proposal, if their MW meets all the specified conditions. Some 
examples of these generators are listed at the beginning of the 
preamble in Table 1 under ``Who is Eligible for This Rule''. We 
estimate that this rulemaking could apply to the LLMW generated and 
stored by over 1,000 industrial facilities and laboratories in the U.S. 
Approximately 108,000 cubic feet of LLMW is generated annually by these 
facilities, and an additional 4,000 cubic feet of legacy waste is 
currently in long-term storage without options for treatment and/or 
disposal. In addition, DOE generates approximately 400,000 cubic feet 
annually, with 4.4 million cubic feet of legacy waste in storage. (See 
Ref.14 and 17 for details on waste volumes and cost-benefit analysis.)
    According to the available information, DOE operations currently 
face mixed waste disposal capacity issues similar to those experienced 
by the commercial sector. This proposal would only provide partial 
relief for DOE due to concerns expressed by the States regarding 
disposal of the RCRA-exempted LLMW at DOE's LLRWDFs (see VI. H). 
However, DOE has been working with the States to establish additional 
disposal capacity for its LLMW.
3. What Other Regulatory Relief Provisions May Apply?
    Generators of LLMW or NARM that is not eligible for the proposed 
conditional exemption for transportation and disposal may petition EPA 
to get their specific waste stream delisted from RCRA Subtitle C under 
the RCRA Delisting Program (Contact the EPA Regional delisting 
coordinator for details.)

C. What is the Point of Exemption?

    We are proposing that LLMW or eligible NARM be exempted from RCRA 
Subtitle C requirements once the generator has met all pre-transport 
requirements under Sec. 266.315. Specifically, the point of exemption 
occurs when the waste is placed on the transportation vehicle bound for 
disposal at an NRC or Agreement State-licensed LLRWDF. A shipment 
``bound for disposal'' includes any shipment originating from the 
generator that is transported by one or more transporters. However, the 
shipment must not go to any other facility en route to the designated 
LLRWDF, other than to a transfer facility meeting the requirements of 
40 CFR 263.12. The exempted waste would not have to be managed 
according to RCRA Subtitle C requirements during transportation and 
final disposal at the LLRWDF. We are proposing the point of exemption 
as described above for the following reasons:
     The exempted waste will continue to be managed in 
accordance to the AEA because of the radioactive component of the 
waste.
     The risks posed by exempted waste when transported and 
manifested are adequately addressed by the NRC transportation and 
manifest requirements.
     The risks posed by the exempted waste when disposed of in 
a LLRWDF are adequately addressed by the requirements set by NRC or an 
Agreement State in accordance with 10 CFR 61.
     The exemption would reduce the generator's requirements to 
comply with duplicative regulations during transportation and disposal, 
in that NRC regulations have been shown to be as protective as RCRA 
regulations.
    In conclusion, we set the point of exemption as proposed primarily 
because we believe that transportation, tracking, and disposal of waste 
meeting the LDR treatment standards can be safely managed according to 
similar regulations of NRC. The end result is that regulatory burden 
can be reduced because NRC regulations provide comparable protection.

D. Implementation and Enforcement

1. How Will the Transportation and Disposal Conditional Exemption Be 
Implemented?
    We are proposing that the transportation and disposal conditional 
exemption be self-implementing. No prior governmental approval or 
review of documentation is required before a generator's qualified 
waste exits RCRA Subtitle C manifest, transportation, and disposal 
requirements. This basic framework is consistent with most other 
hazardous waste exemptions and exclusions, such as the LDR program, 
where generators and treaters can certify that their hazardous waste 
meets LDR treatment standards and qualifies for land disposal, without 
prior governmental approval. Furthermore, it is also consistent with 
provisions discussed in the HWIR99 notice related to the concentration 
based exemption and exclusions from the definition of solid waste found 
in 40 CFR 261.4(b).
    We are proposing self-implementation for the transportation and 
disposal conditional exemption because we believe that there is no 
substantial advantage to be gained from requiring approval for an 
exemption. Furthermore, the waste exiting RCRA requirements would 
continue to be managed under an alternate regulatory program (NRC or 
Agreement State regulations) that would provide comparable protection 
for human health and the environment. This would also be true for 
generators like DOE who self-regulate under the AEA, because their 
waste would also be disposed at a LLRWDF regulated by NRC or Agreement 
State. Therefore, we believe that under the proposed self-implementing 
method, the waste will continue to be properly managed while the 
regulatory burden is reduced. In addition, self-implementation has the 
following advantages:
     The exemption can take effect more quickly since approval 
from the RCRA program agency is not necessary;
     It reduces the generator's burden in claiming the 
exemption;
     It does not impose burden, or time restrictions on the 
RCRA program agency to review the notification package while 
maintaining jurisdiction; and
    However, self-implementation does not mean that the RCRA program 
agency does not have a role in overseeing the conditional exemption. 
The RCRA program agency will be notified of the exemption, and will 
have access to all documentation related to a claim (See VI.E.2 of this 
preamble).
    While the RCRA regulatory agencies may review a generator's 
exemption claim, the lack of such a review would not be an indication 
of their approval of the exemption claim. That is, the confirmation 
that the RCRA program agency has received the exemption notification 
package would not imply that they have reviewed or approved it. 
Therefore, the exempted waste will still lose its exemption whenever it 
is discovered that any of the required conditions is not met.
    The RCRA program agency may conduct inspections and review the 
records to determine whether the

[[Page 63479]]

generator is in compliance with the conditions of this exemption. The 
RCRA program agency can use this information to support enforcement 
action. Concerned citizens can bring to the regulator's attention any 
circumstance that might aid authorities in monitoring and enforcement 
efforts, or file a citizen suit under RCRA section 7002 against a 
generator for failure to comply with the conditions for exemption.
2. What Happens if Your Waste No Longer Meets the Conditions of the 
Transportation and Disposal Conditional Exemption?
    When any exemption condition is not met, your waste loses its 
exemption status and may be fully regulated under RCRA subtitle C as a 
hazardous waste. You could also be subject to enforcement actions which 
could result in fines and penalties. RCRA subtitle C sections 3008 
gives us the authority to commence enforcement actions and assess fines 
and penalties. Examples of activities that could lead to an enforcement 
action against you include misclaiming of a conditional exemption, 
failure to meet the conditions of the exemption, or providing erroneous 
information to the disposal facility.
3. Are There any Additional Requirements You Must Meet?
    Yes, the additional requirements of the transportation and disposal 
conditional exemption are listed under the proposed sections 
Sec. 266.325(b) and Sec. 266.330(b). Under these sections, you are 
required to notify the LLRWDF of the exempt status of your waste before 
you ship it to the facility for disposal (see VI.E.2.d). These 
requirements are obligations that you are required to meet at all 
times. While your exemption status would not change if a requirement 
was violated, you could be subject to RCRA enforcement actions which 
could result in fines and penalties.
4. Can Your Exemption be Reclaimed if You Fail to Meet a Condition?
    This proposed conditional exemption rulemaking envisions a self-
implementing process. The exemption is lost at the time of non-
compliance. EPA needs to take no action to remove the exemption. 
However, if your waste loses the conditional exemption, you may reclaim 
your exemption if you return to compliance with all conditions in 
Sec. 266.315. You must send the RCRA program agency a written notice 
that you are reclaiming your exemption. Your notice must do the 
following:
     Explain the circumstances of the failure which caused your 
waste to lose the exemption;
     Certify that your waste is in compliance with all 
conditions as of the date you reclaim the exemption;
     Demonstrate that the failure is not likely to recur 
because of specific steps (list them) you have implemented in your 
LLMW-related compliance activities; and
     Include any additional information you would like us to 
consider regarding your reclaim notice.
    If subsequently we find that a reclaimed conditional exemption is 
inappropriate because it is not protective of human health or the 
environment, then we may terminate the conditional exemption which was 
reclaimed.
    Alternatively, we could specify a waiting period for reclaiming a 
disposal exemption. The waiting period would allow the regulatory 
agency time to confirm that the violation has been corrected, and is 
not likely to recur. This may be prudent when a conditional exemption 
has been lost. Generally, it takes time to schedule and conduct 
confirmation inspections. Self-implementation of your reclaimed 
exemption may not allow the RCRA program agency time to confirm that an 
infraction has been corrected. As a result, waste could be 
inappropriately shipped off-site for disposal. Therefore, we are 
seeking comment on whether to provide for a 90-day waiting period 
before your reclaimed exemption for disposal is final.
5. What Can a LLRWDF do to Reduce the Potential Applicability of RCRA 
Authorities?
    As discussed in VI.G. we believe that disposal of LLMW, treated to 
LDR standards, in a designated LLRWDF is protective of human health and 
the environment, and we do not expect the exempted waste to pose a risk 
once properly disposed. We believe a LLRWDF can greatly reduce the 
potential applicability of RCRA authorities by taking steps to ensure 
that the exempted waste has achieved the required LDR treatment 
standards. During our discussion with the LLRWDFs (Ref.9), they 
indicated that they would consider conducting independent waste 
analysis to ensure that the waste accepted do meet the LDR treatment 
standards. Additionally, we would encourage open communication between 
the waste generators and the LLRWDFs regarding waste information.

E. What Conditions Must You Meet Prior to Claiming the Transportation 
and Disposal Exemption?

    This section discusses the rationale behind the conditions of the 
exemption.
1. Why Are we Requiring LDR Treatment?
    The hazardous constituents in waste eligible for the exemption must 
first be treated to meet the RCRA LDR treatment standards specified in 
40 CFR 268.40--268.48. The treated waste also must meet the definition 
of non-wastewater as defined in 40 CFR 268.2(d). We believe that LLMW 
or eligible NARM waste should meet LDR treatment standards, and be 
managed in accordance with NRC or Agreement State requirements for LLW 
to ensure protection of human health and the environment.
    Like any hazardous waste destined for land disposal, LLMW must meet 
LDR treatment standards prior to its disposal at a mixed waste disposal 
facility (with a RCRA hazardous waste disposal permit and an NRC or 
Agreement State license for radioactive waste disposal). Compliance 
with the LDR treatment standards ensures that the toxicity and mobility 
of the hazardous waste constituents is reduced. Our LLMW transportation 
and disposal conditional exemption is based upon our determination that 
the LLMW, or eligible NARM waste, which meets the LDR treatment 
standards (thereby substantially reducing the toxicity and mobility of 
the hazardous constituents in the waste) is rendered ``nonhazardous'' 
when disposed in accordance with NRC or Agreement State regulations.
    In the Hazardous and Solid Waste Amendments (HSWA) of 1984, 
Congress prohibited land disposal of hazardous waste unless the waste 
undergoes treatment to minimize threats to human health and the 
environment. The statute requires that treatment standards established 
by EPA will substantially diminish the toxicity or mobility of 
hazardous waste such that short-and long-term threats to human health 
and the environment are minimized. See RCRA section 3004(m) 42 U.S.C. 
6912(a), 6921, and 6924. Over the last 15 years, EPA has responded to 
the statutory mandate by developing through a series of rulemakings 
treatment standards for hazardous waste based on the best demonstrated 
available technology (BDAT) for treating the waste. With the 
promulgation of the most recent ``Phase IV'' Rule (63 FR 28556, May 19, 
1998), EPA has promulgated treatment standards for

[[Page 63480]]

most hazardous wastes. This effort will continue as we promulgate new 
hazardous waste listings or otherwise identify new hazardous wastes.
    Furthermore, hazardous wastes (other than wastewaters) meeting the 
LDR treatment standards, with a few exceptions, must be disposed of at 
a RCRA Subtitle C hazardous waste disposal facility. However, 
characteristic wastes that are rendered non-characteristic may be 
disposed of as non-hazardous solid waste provided that they meet LDR 
treatment standards, including standards for underlying hazardous 
constituents (Sec. 268.2(i)). Wastes that have been delisted 
(Sec. 260.22) may also be disposed of as solid waste.

    Please note: In the following sections the discussion on 
existing LDR treatment requirements are meant to provide reference 
information for the reader. We are not taking comment on any 
existing LDR requirements.

    In the following sections of VI.E.1.a, we discuss different types 
of RCRA hazardous wastes and summarize the existing applicable RCRA LDR 
treatment standards for them.
a. What are the existing RCRA LDR treatment requirements for various 
types of LLMW?
    In the following discussion, we provide information regarding 
existing RCRA LDR treatment requirements for various types of waste. A 
table identifying the types of RCRA hazardous waste commonly found in 
LLMW is provided as background material in the RCRA Docket (Ref. 10)

i. LLMW that is a listed hazardous waste (F, K, P, and U waste)

    LLMW that contains, or is mixed with or derived from, a hazardous 
waste listed in 40 CFR Part 261, subpart D has to be treated to meet 
the LDR treatment standards specified for these waste streams in 40 CFR 
268.40 before it is eligible for the transportation and disposal 
exemption. Based on the available data, the listed hazardous waste 
codes most commonly associated with LLMW are F001--F005, the codes for 
spent solvent wastes.

ii. LLMW exhibiting hazardous characteristics (D001-D043)

    Currently, a characteristic LLMW becomes a low-level radioactive 
waste and is managed as such once it has been decharacterized. Under 
this situation, a generator would not need to claim the transportation 
and disposal exemption, nor meet the associated conditions in order to 
dispose the resulting non-RCRA hazardous, low level radioactive waste 
in a low level radioactive waste disposal facility. However, if a 
characteristic MW was treated but not decharacterized, then it 
continues to be a MW. You would then need to claim the MW 
transportation and disposal exemption and meet the associated 
conditions for this resulting MW in order to dispose of it in a LLRWDF. 
In addition, the underlying hazardous constituents (UHCs) must always 
be identified and treated to meet the Universal Treatment Standards 
(UTS) levels specified in 40 CFR 268.48.
    Under current regulations, a waste exhibiting the characteristics 
of ignitability (D001), corrosivity (D002), reactivity (D003), or 
toxicity (D004-D043) must be treated to the applicable LDR treatment 
standards specified for those waste codes in 40 CFR 268.40 before it 
can be disposed on land. If meeting the LDR treatment standards also 
enabled the treated waste to become decharacterized, then the resulting 
waste can be disposed as non-hazardous waste. However, if meeting the 
LDR treatment standards does not enable the treated waste to become 
decharacterized, then the resulting waste must be disposed of as 
hazardous waste. (This is the case for some characteristic wastes 
exhibiting the characteristic of toxicity, such as Selenium.) In order 
for a characteristic waste exhibiting toxicity to be decharacterized, 
the toxic constituent must be treated to below the ``Maximum 
Concentration of Contaminants For The Toxicity Characteristic'' listed 
under Sec. 261.24. On the other hand, the LDR treatment standards are 
technology based and therefore do not always achieve the levels listed 
in Sec. 261.24. Therefore, a decharacterized LLMW becomes a LLW and 
does not need to claim the MW transportation and disposal exemption. On 
the other hand, a treated but not decharacterized LLMW continues to be 
a LLMW and would have to claim the exemption in order for it to be 
disposed in LLRWDF.
    In addition, the UHCs must also be identified and treated to meet 
the UTS levels specified in 40 CFR 268.48. In 1998, EPA promulgated the 
LDR Phase IV Rule, revising UTS for nonwastewater forms of 12 metals 
(63 FR 28559-28572). The rule also required treatment of UHCs 
reasonably expected to be present in the toxicity characteristic (TC) 
waste to UTS levels.

iii. Mixed waste debris

    Debris, as defined in 40 CFR 268.2(g), contaminated with RCRA 
hazardous waste and radioactive debris can be treated according to an 
alternative LDR treatment standards under Sec. 268.45 (57 FR 37221, 
Aug. 8, 1992). The treated debris can then be disposed on land. The 
three major types of treatment methods under the LDR alternative 
treatment standards for debris consist of destruction, extraction, and 
immobilization. Under LDR regulation, any hazardous debris treated by 
the destruction and extraction methods are considered non-hazardous 
waste. As such, a MW debris meeting the requirements for extraction and 
destruction treatment methods can be managed as radioactive waste 
alone. Therefore, you would not need to claim the transportation and 
disposal exemption, nor meet the associated conditions in order to 
dispose this resulting non-RCRA hazardous, radioactive waste debris in 
a LLRWDF. However, for a MW debris treated via the immobilization 
treatment methods, the resulting waste remains a RCRA hazardous waste. 
Therefore, you would need to claim the exemption and meet the 
associated conditions in order for you to dispose the immobilized MW 
debris in a LLRWDF. Alternatively, a listed hazardous debris treated 
through the immobilization technology becomes a non-hazardous waste 
under Sec. 261.3(f)(2) if the Regional Administrator determines that it 
is no longer hazardous, after a ``contained-in'' determination is made. 
Characteristic debris treated by immobilization technology can also 
become a non-hazardous waste if you, the generator, can demonstrate 
that the immobilized debris is no longer hazardous. If your treated 
debris is no longer hazardous, then you would not need to claim a 
conditional exemption in order to dispose the waste at a LLRWDF. Also, 
mixed waste debris treated to meet the treatment standards found in 
Sec. 268.40 can be disposed of at LLRWDFs if the proposed conditions 
were met.

iv. Hazardous soil contaminated with radioactivity

    Under current LDR treatment requirements, soils contaminated with 
RCRA hazardous waste must be treated to meet the universal treatment 
standards at Sec. 268.48 before disposal in a RCRA hazardous waste 
landfill. In addition, we also promulgated alternative treatment 
standards for soils under the LDR Phase IV Rule (63 FR 28602-28622, May 
26, 1998) to provide flexibility for remediation activities. The 
alternative treatment standards for soils can be found in Sec. 268.49.
    Contaminated soils treated to meet the RCRA LDR treatment standards 
must be disposed in a RCRA hazardous waste disposal facility, unless 
they are found to no longer be a hazardous waste. When the treated 
waste continues to be

[[Page 63481]]

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

[[Page 63482]]

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

[[Page 63483]]

the RCRA requirements. Most notably, both the RCRA and NRC manifests 
were developed to be consistent with the shipping paper requirements of 
DOT (See 49 CFR 172.200). Therefore, the RCRA and NRC manifests share 
many basic elements. In addition, both manifest regulations require 
closed-loop notification and tracking, exception reporting, and 
mandatory record keeping of manifests. NRC's regulations, however, go 
beyond RCRA requirements in several areas, such as requiring longer 
manifest retention times in certain cases and specifying more stringent 
schedules for generators to investigate shipments for which they have 
not received the LLRWDF's acknowledgment of receipt. Given these 
observations, we believe that NRC's requirements for tracking of low-
level waste would more than meet our needs to ensure that the exempted 
waste arrives at NRC or Agreement State-licensed LLRWDF. Therefore, we 
are not imposing additional RCRA tracking requirements in this 
proposal.
b. Why do generators who self-regulate under the AEA have an additional 
condition to meet?
    We are requiring generators who self-regulate their radioactive 
waste management activity under the AEA authority, such as DOE, to 
follow 10 CFR 71, and 49 CFR 100-199 transportation requirements and 10 
CFR 20 manifest requirements as an additional condition to claim the 
exemption. Generators and transporters regulated by NRC, or an 
Agreement State, and DOT are already required to follow these 
transportation and manifest regulations. For generators who self-
regulate under the AEA, this additional condition would ensure the 
consistent application of the manifest and transportation requirements 
for the RCRA-exempted radioactive waste.
    Secondly, this condition provides a vehicle for taking enforcement 
action against a facility who self-regulates under AEA if NRC or DOT 
manifest and transportation regulations are violated. By self-
regulating under AEA, DOE is not subject to NRC, or DOT enforcement 
authority for the management of radioactive material, although we 
understand that DOE works with both agencies to resolve issues of 
concern. We believe, however, that enforcement is an important aspect 
of this regulation. By establishing transportation and manifest 
requirements as a condition for generators who self-regulate under AEA, 
we are providing an external enforcement mechanism for the RCRA-
exempted waste that would otherwise not exist. Therefore, facilities 
like DOE would be subject to RCRA enforcement actions if they violated 
this condition. We did not place this requirement as a condition for 
the exemption for generators subject to NRC or DOT regulations because 
they would be subject to NRC or DOT enforcement actions if they 
violated NRC or DOT manifest or transportation requirements.
    As the exemption is contingent upon waste disposal in a NRC or 
Agreement State licensed LLRWDF, it is important that a mechanism is in 
place to track all exempted waste in transit and confirm that the 
exempted waste arrived at the appropriate disposal facility. We do not 
believe this condition would impose an unreasonable burden on these 
facilities, as other generators and transporters are all required to 
comply with these manifest and transportation requirements. In 
addition, it is also critical that the mechanism used is enforceable. 
Therefore, we believe this proposed condition provides these facilities 
with an opportunity to take advantage of the proposal while bearing a 
reasonable regulatory burden.
4. Why Must the Exempted Waste Be Disposed Only in a LLRWDF Licensed by 
NRC in Accordance with 10 CFR 61?
    We are proposing that the RCRA-exempted waste be disposed of only 
in a LLRWDF licensed by NRC or Agreement State in accordance to 10 CFR 
61 to ensure the protection of human health and the environment from 
the disposal of the RCRA-exempted waste at these facilities. This is 
because our evaluation is based on the review and analysis of LLRWDFs 
licensed and operated by NRC or Agreement State in accordance to 10 CFR 
61.
    We limited our evaluation of the LLRWDFs to only those licensed by 
NRC or Agreement State due to concerns raised by the States. The States 
were concerned about DOE's self-regulating status under AEA. Under such 
regulatory framework, state radiation control programs do not have 
regulatory oversight authority for the RCRA-exempted radioactive waste. 
The NRC or Agreement State has primary responsibility for exercising 
regulatory authority over the possession and transfer of radioactive 
material by commercial entities, and some non-DOE Federal facilities. 
In contrast, DOE is responsible for regulating its own activities under 
the AEA. The States are concerned that they would lose control over the 
management of the RCRA-exempted radioactive waste, and lose enforcement 
authority once it exits RCRA Subtitle C jurisdiction (see VI. H. for 
further discussion). In most cases, this proposed regulation would need 
to be adopted by the States before it can be implemented, so it is 
necessary to ensure that the States' concerns are addressed. We believe 
that restricting the disposal of the RCRA-exempted radioactive waste to 
a NRC or Agreement State licensed LLRWDF would address the States' 
concern regarding DOE's self-regulating status. This approach would 
ensure that all RCRA-exempted radioactive waste would remain under an 
external regulatory framework and enforcement authority. In addition, 
this approach would not exclude DOE from taking advantage of the 
transportation and disposal exemption if DOE disposes of its exempted 
waste in LLRWDFs licensed by NRC or Agreement State. This approach 
allows us to accommodate DOE's waste while addressing the States' 
concern.
    Alternatively, DOE can consider petitioning the States for 
developing site-specific, risk-based exemption levels through the site-
specific risk-based variance approach, if adopted, discussed in section 
VI.F.2 of this preamble. A site-specific risk-based variance would 
enable DOE to work directly with mixed waste authorized States to 
develop appropriate risk levels and exemption conditions.
    In addition, this exemption does not apply to disposal at on-site 
disposal units at environmental clean up activities sites such as 
disposal units at Uranium Mill Tailings Remediation and Control Act 
(UMTRCA) sites and Formerly Utilized Sites Remedial Action Program 
(FUSRAP) sites. This is because the technical analysis that was 
conducted for this proposal was based on the LLRWDFs that are designed 
and operated according to 10 CFR 61 and associated technical guidance 
documents prepared by NRC. The disposal units at UMTRCA or FUSRAP sites 
are not subject to 10 CFR 61 requirements and NRC or Agreement State 
licensing process for LLRWDFs. However, the proposed exemption is 
applicable to remediation wastes from UMTRCA and FUSRAP activities that 
are hazardous wastes contaminated with radioactivity, and are disposed 
at LLRWDFs licensed and operated in accordance to 10 CFR 61. provided 
that the generators meet all the proposed conditions for exemption.
5. What Is the Purpose of the Records That You are Required To Keep?
    The records would provide your RCRA program agency with information 
during inspections and audits to determine whether you are complying 
with all of the conditions of the exemption. These records could also 
be

[[Page 63484]]

used in possible enforcement actions. Since the exemption is self-
implementing, it is particularly important that you keep all of the 
required records and make them available to the regulatory agency, when 
requested.
6. How Is the Public Involved?
a. What Is the role of the public in the proposed transportation and 
disposal exemption?
    The public can play an important role under today's proposal. 
During the rulemaking process, the public will have the opportunity to 
provide comments on the proposal. We welcome and encourage the public 
to provide comments on today's proposed rule to help us address their 
concerns. In addition, the public will also have an opportunity to 
voice their opinions when a state develops regulations to adopt a final 
rule. At any time, the public can also participate by bringing to the 
RCRA program agency's attention any circumstance that they are aware of 
which might aid oversight authorities in their monitoring and 
enforcement efforts. Furthermore, the public can request information 
concerning a particular facility's operational records from a state 
regulatory agency if they have a reason to believe that mismanagement 
at a facility may pose a risk to human health or the environment. The 
public can also bring a citizen suit against a generator for failure to 
comply with the conditions of the Rule.
b. How can the public obtain information about the exemption and stay 
involved?
    We recognize the need to enable communities to become more active 
participants in local environmental issues by providing easy access to 
information. As the exemption is self-implementing, we do not see the 
advantages of notifying the public since there is no formal decision-
making opportunity, prior to the exemption, that the public could 
participate in.
    Many State environmental agencies have mechanisms, such as 
telephone hotlines, printed or electronic media, to keep the public 
informed and to answer questions about public safety and environmental 
issues. We believe these established procedures and information 
repositories are sufficient to keep the public informed of the disposal 
activities of LLRWDFs, and encourage state environmental agencies to 
utilize these mechanisms. Depending on the structure of the State 
program, the State agencies may decide to provide public access to 
relevant information at the State or local level (for example, public 
libraries, or fire stations).

F. What is EPA's Site-Specific, Risk-Based Variance Alternative for 
Disposal?

    We are proposing an alternative approach which would be based on 
site-specific risk modeling. We are proposing this alternative because 
the States have expressed interest in site specific risk-based 
exemption levels which are more suitable for an individual disposal 
site. By using a site-specific risk-based approach, a state can choose 
to customize and establish the exemption levels for a LLRWDF under 
consideration based on the specific characteristics of the disposal 
site. Under this approach, we are proposing that the regulated 
community work directly with the States in developing the site-specific 
risk-based exemption levels using the risk target level specified by 
EPA.
    For the transportation and disposal conditional exemption, we are 
proposing to use the current LDR treatment standards instead of 
modeling to develop new national risk-based levels. However, under 
RCRA, we can generally grant exemptions and variances from RCRA 
requirements, if an alternate practice will not adversely impact human 
health and the environment.
    We are asking for public comments on the approach of a state 
approved site-specific, risk-based alternative to allow the disposal of 
hazardous waste contaminated with radioactivity in any LLRWDFs 
including DOE's LLRWDFs. This approach could be pursued by States, an 
owner/operator of a LLRWDF (NRC or Agreement State licensee or DOE 
sites), or a consortium of generators of LLMW or eligible NARM. In 
pursuing this option, a petitioner must demonstrate that the site-
specific risk-based exemption levels are protective of human health and 
the environment as defined by EPA at the disposal location. In these 
situations, a site-specific risk-based variance petition developed in 
consultation with and approved by the State RCRA agency may be a 
desirable alternative to the conditional exemption proposed today.
    When developing the site-specific risk-based levels, the petitioner 
should account for the following factors:
     Climatological and hydro-geological information;
     Information on hazardous constituents of concern in the 
LLW, or NARM contaminated waste (the number of constituents can be 
targeted by restricting the RCRA waste codes);
     Potential human and environmental receptors;
     At a minimum, national risk protection goals identified by 
EPA;
     Potential routes of exposure (i.e., direct and/or 
indirect); and
     Potential exposure media:

--Groundwater (at a minimum);
--Air, if disposing of bulk waste instead of containerized waste; and
--Surface water, if groundwater-to-surface water connectivity is a 
concern.

    When developing the site-specific risk-based variance approach, the 
public participation process found at Sec. 268.44(e) would be necessary 
to provide an opportunity for the public to understand and comment on 
the site-specific risk levels. (See 62 FR 64507, Dec. 5, 1997 for 
additional discussion for public involvement.)
    Today, we are soliciting comments on whether the States, the 
regulated community, or non-NRC or Agreement State licensees (for 
example, DOE) would be interested in pursuing the development of site-
specific risk-based exemption levels. We seek comments on the site-
specific risk-based variance approach, and the types of guidance 
documents needed by EPA for site-specific risk modeling. We also seek 
comments on whether this approach would be preferred over the proposed 
conditional exemption.

G . How Did we Conduct our Technical Assessment for the Disposal of 
Treated Waste at Low-Level Radioactive Waste Disposal Facilities?

    Our proposed conditional exemption for disposal relies on the 
benefit derived from the LDR treatment requirements, and the protection 
offered by LLRWDFs licensed pursuant to 10 CFR 61. Our evaluation of 
NRC regulations at 10 CFR 61, NRC technical guidance documents, and NRC 
or Agreement State licensing requirements for LLRWDFs (see Technical 
Background Document, Ref. 7) forms the basis of our finding that the 
NRC or Agreement State disposal requirements per 10 CFR 61, and EPA 
disposal requirements provide comparable protection for human health 
and the environment. This finding is based on the following:
     The reduced toxicity and mobility of RCRA hazardous 
constituents when LLMW or eligible NARM wastes are treated to LDR 
treatment standards.
     Our analysis of NRC regulation licensing requirements for 
``near-surface'' disposal of LLW.
     Protection provided against chemical risks to human health 
and environment when LLMW or eligible

[[Page 63485]]

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

i. Are the locational requirements comparable between EPA and NRC 
regulations?

    The locational requirements between RCRA and NRC are generally 
comparable, with NRC being more restrictive in specific areas. Both 
programs have very similar restrictions for seismic areas and flood 
plains. The NRC also bans location of disposal facilities in 
environmentally sensitive locations, such as wetlands and coastal high 
hazard areas (10 CFR 61.50(a)(5)). The NRC does mandate restrictions 
for ground water surface water connectivity on-site and potential 
restrictions on off-site surface water impact from either ground water 
connectivity or overland mechanisms (10 CFR 61.50(a)(8)). The NRC also 
ensures that the disposal facility should not exploit natural resources 
that would result in not meeting performance objective (for example, 
potable ground water). The NRC required performance analysis of the 
disposal site for radiation hazards

[[Page 63486]]

factors in: presence of a receptor, duration of transport, and dose to 
the receptor. The NRC also requires the ability to characterize, 
monitor, and model the facility (10 CFR 61.50(a)(2)) leading to avoid 
siting of a disposal facility in areas of complex subsurface geology 
(e.g. active karst or fractured rock).

ii. Are the treatment and liner/container requirements comparable 
between EPA and NRC?

    In general, the treatment and container requirements are comparable 
between RCRA and NRC. LLW that is Class A waste must be stabilized 
according to 10 CFR 61.56(b). NRC also requires that the Class A waste 
be treated to reduce the potential hazards from the non-radiological 
constituents to the maximum extent practicable (10 CFR 61.56(a)(8)). 
These requirements are similar to RCRA hazardous waste treatment 
requirements applicable to some hazardous waste streams (for example, 
metal-containing waste, and macro/micro encapsulated debris). Also, as 
noted earlier, RCRA requires that hazardous waste be treated to LDR 
treatment standards before the hazardous waste can be landfilled. Both 
NRC and EPA restrict the liquid content of the waste destined for 
disposal in landfills. The NRC restricts the free liquid contents to 1% 
by volume or less. The EPA regulations require use of a specified test 
showing that under the specified pressure, there is no visible sign of 
liquid release.
    In some instances, the NRC is more restrictive by requiring 
disposal of waste as containerized waste. NRC regulations require that 
waste be packaged such that waste form and structural integrity be 
maintained until the Class A radionuclides decay. However, except for 
liquid waste disposal, EPA does not require containerization of waste. 
NRC container requirements require that steel drums or high-integrity 
containers (HICs) be used to store and dispose LLW and must meet the 
American Society of Testing Methods (ASTM) performance requirements 
related to, among other things, structural integrity and resistance to 
corrosion. In addition to minimizing contact with water, NRC requires 
disposal of a containerized waste in a disposal cell. RCRA does not 
require disposal of hazardous waste as containerized waste. However, 
RCRA requires that landfills be constructed with a double liner and 
leachate system that at least include a 3-foot thick (91cm) 
1 x 10-7 permeability lower liner soil component, and 
requires that the cover be no more permeable than the landfill's liner 
system. These RCRA requirements would likely achieve the purpose of the 
NRC containerization requirements to prevent contact between waste and 
water and to reduce the potential generation of waste leachate.

iii. Are the landfill design requirements comparable between EPA and 
NRC regulations?

    EPA and NRC take different approaches to landfill design. While EPA 
relies on prescriptive regulations for cover and liner design and 
construction, NRC relies heavily on the performance requirements of its 
cover system, containerization, and environmental setting. The NRC 
mandate requires that the engineered landfill design system integrates 
both the site properties (climate, soil geology) along with the 
performance of the cover system. This integration grants flexibility to 
the final engineering design, resulting in site-specific landfill unit 
designs. The integrated disposal systems might include concrete vaults 
(especially in humid environments of the country--for example, Chem-
Nuclear facility at Barnwell, SC) which have a thick cover that might 
include geo-materials or even a liner. Overall, our analyses indicated 
a grouping of the cover systems by their performance and that the 
Subtitle C and LLRWDF engineered systems are comparable (Ref. 7).
    NRC requires that the landfill be designed to limit human exposure 
to a specified level of radioactivity. Unlike RCRA, NRC does not set 
detailed design specifications for liners, covers, or monitoring in 
order to prevent releases to groundwater. Instead, AEA landfills are 
designed to provide assurance that concentrations of radioactive 
material which may be released to ground water, surface water, air, 
soil, plants, or animals must not result in exposures to humans above 
specified health-based levels (10 CFR 61.41). NRC has landfill 
performance requirements which include that the landfill must be 
designed to limit human exposure to a specified level of radioactivity 
and intrusion by humans and animals (10 CFR 61.14(b)). Unlike RCRA, NRC 
does not set detailed design specifications for liners, covers or 
monitoring in order to detect and mitigate releases to groundwater. 
Instead, LLRWDFs are designed to provide assurance that concentrations 
of radioactive material which may be released to the general 
environment in ground water, surface water, air, soil, plants or 
animals must not result in exposures to humans above specified health-
based levels (10 CFR 61.41).
    RCRA has certain minimum technical design requirements for landfill 
covers and liners. These requirements were established to help ensure 
that disposal requirements of hazardous wastes would limit potential 
human exposure to hazardous constituents and provide for protection of 
human health and the environment (3004(a)). For example, RCRA requires 
that the liner system be composed of an upper liner component such as a 
geomembrane, a 3 foot thick (91cm) 1 x 10-7 permeability 
lower liner soil component, and a double leachate collection systems 
between these liners (40 CFR 264.301(c)), and that the cover be no more 
permeable than the landfill's liner system (40 CFR 264.310(a)(5)). 
Because the cover can be no more permeable than the liner, RCRA 
requires that the cover will at least be of a 3-foot thick layer with 
1 x 10-7 permeability.
    Some of the chemical constituents in LLMW or eligible NARM could 
have physical/chemical properties indicating a high potential for 
mobility in the subsurface or in groundwater. While this situation is 
theoretically possible, our analysis indicates that LDR requirements 
and NRC waste disposal requirements (and NRC guidance) for minimizing 
water infiltration through the cap and contact with the waste (10 CFR 
61.50(a)(4), 10 CFR 61.51(a)(4)) will prevent significant releases of 
chemical constituents from the waste into the groundwater and thus 
provide for sufficient protection of human health and the environment. 
The protection of groundwater against chemical releases at LLRWDFs 
through requirements of this proposed rulemaking is further described 
below in section v.

iv. How do institutional controls minimize long-term risks?

    Post-closure care under RCRA regulations can last for 30 years or 
more, during which time the ownership of the property remains in 
private hands. After the post-closure period, the site is available for 
redevelopment. Under AEA, facility maintains active care for up to 100 
years and the facility is in governmental control. The longer active 
institutional control under AEA should result in better maintenance of 
the facility and governmental control is a source of long-term control. 
In some states (for example, New York,) RCRA post closure and financial 
assurance are required for up to 100 years, much like that required 
under AEA.
    The post-closure monitoring requirements differ between NRC and 
EPA. RCRA requires that post-closure groundwater monitoring be 
conducted at all RCRA landfills to assess the potential release of 
chemical

[[Page 63487]]

constituents from the landfill, and that groundwater monitoring be able 
to allow for the detection of chemical contamination at the point where 
the constituents could migrate from the landfill to the hydraulically 
down gradient limit of the landfill which extends down into the 
uppermost aquifer under the landfill (40 CFR 264.95, 
264.97(a)(3)301(c)). NRC also requires that groundwater monitoring be 
conducted to allow for early detection and mitigation of radiological 
contamination. However, the regulations are flexible regarding the 
location of ground water monitoring wells and the extent of the buffer 
zone surrounding the unit (10 CFR 61.12(b) and 10 CFR 61.53(c)). In 
practice, ground water monitoring wells are located throughout the 
facility and not only at the property boundary. The number and exact 
locations of monitoring wells might not be the same as specified in 
RCRA (10 CFR 264.95(a)), but they are located in a manner allowing 
early detection of radionuclides release and appropriate mitigation to 
provide sufficient protection against contamination of groundwater.
    Because the NRC monitoring requirements may only require analyses 
for radiological constituents (and not for chemical constituents), 
releases of chemical constituents may not be detected (on-site or off-
site). If a joint release of radiological and chemical contamination 
occurs from an LLRWDF into the groundwater, by the time the 
radiological release is detected, the chemical release may have 
traveled farther and be beyond the site boundary, if the chemical 
constituents are more mobile in the subsurface environment than the 
radiological constituents. While these situations are theoretically 
possible, we concluded that the various NRC waste disposal 
requirements, coupled with LDR requirements would minimize releases of 
chemical constituents from the waste into the groundwater and thus 
provide for protection of human health and the environment. The 
protection of groundwater against chemical releases at LLRWDFs through 
requirements of this proposed rulemaking is further described below in 
section v.

v. How is the protection of ground water against chemical release at 
LLRWDFs addressed in this proposal?

    Low-level radioactive waste disposal facilities licensed by NRC or 
Agreement States are not required to do groundwater monitoring for 
chemical constituents. These facilities, however, require monitoring of 
groundwater for release of radionuclides, must report any releases to 
regulatory agencies, and take action to clean up such releases if of 
concern.
    As discussed above in sections I-iv, low-level radioactive waste 
disposal facility siting, design, operation and closure are subject to 
requirements comparable to those for RCRA hazardous waste disposal 
facilities. Some hazardous waste disposal requirements are more 
specific than the low-level waste disposal requirements for the 
potential release of chemical constituents. For example, under RCRA, a 
double liner and leachate collection system, groundwater monitoring for 
chemical release, corrective action, and financial responsibility is 
necessary for hazardous waste disposal. These requirements are not 
found in NRC regulations. NRC regulations, however, require ground 
water monitoring, corrective measures, and financial assurance for the 
disposal of radioactive waste. NRC's facility siting criteria and waste 
containerization restrictions provide similar outcomes for waste 
management compared with EPA's requirements for a double liner and 
leachate collection based on our discussions with NRC and Agreement 
States. Also, if the radiation hazard becomes a groundwater concern, 
then the licensed facility must take corrective measures during the 
operating life of the facility and closure and post-closure care 
periods. In addition, the disposal facility must provide funds to the 
regulatory agency overseeing operations of the facility to State to 
address such concerns once the State becomes responsible for the health 
and environmental safety at the facility.
    In certain instances, 10 CFR Part 61 requirements are stricter (for 
example, minimizing water/waste contact) thus reducing potential for 
generation of leachate. Additionally, NRC LLW disposal regulations 
require that the waste be processed into a form which satisfies the 
detailed waste characteristics and waste form criteria specified under 
10 CFR 61. At a minimum, according to 10 CFR 61.56(a), all wastes 
disposed at LLRWDFs must be processed into a solid form or packaged in 
absorbent material ensuring that liquid content of the low-level waste 
is less than 1.0% by volume found in 10 CFR 61.56(b)(2). A series of 
technical requirements for these Class B or C LLW, including 
compressive strength, leach resistance, biodegradation resistance and 
immersion testing, is found in the NRC Waste Form Technical Position, 
Revision 1 (January 24, 1991).
    We have conducted technical analyses to determine the possibility 
of a chemical release at the LLRWDFs. We have also conducted a 
comparison between the drinking water standards and the LDR treatment 
standards (that is, UTS levels) to determine the potential impact to 
ground water in the event of a chemical release. Our finding from both 
analyses indicates that the potential for a chemical release causing a 
threat to the ground water is not significant. The analysis we 
conducted was of the screening nature and not all-inclusive for 
chemical constituents. The analysis was developed for the approximately 
90 chemical constituents known to be present in LLMW or eligible NARM 
waste based on our evaluation of the industry-provided data ( Ref. 10). 
The information is further limited to chemical constituents where 
values exist for MCL and LDR treatment standards. From the list of 90 
MW constituents, 66 have values for MCL and 48 have values for UTS. The 
constituents lacking UTS values are predominantly pesticides, but also 
include some chlorinated solvents and inorganics (Ref. 7). We used 
dilution-attenuation factors (DAFs) to allow for the comparing of waste 
treatment levels to ground water drinking values. The use of DAFs 
reflect subsurface transport (for example, advection and dispersion) 
and fate (for example, sorption on solids and precipitation) phenomena. 
DAFs were available for 44 of the constituents, with 23 originating 
from the TC rule and the rest coming from HWIR95 proposal. We used a 
DAF of 100 for the TC constituents and nationally based values for non-
TC constituents from other rulemaking efforts (TC Rule 55 FR 22684, 
June 1, 1990). We believe that the waste analysis sample population is 
representative of the mixed waste universe, as identified in the 
nuclear power industry-provided data , and represents the effectiveness 
of LDR treatment with regard to the drinking water MCL benchmark. Even 
though the analysis is not inclusive for all chemicals, the treatment 
for an identified chemical (for example, incineration of benzene) would 
be similarly effective for another similar constituent (styrene).
    A critical exemption condition under this proposal requires that 
the LDR treatment standards are met. This requirement will reduce the 
chemical contents in the waste to a fairly low level. Once disposed, 
the likelihood of the chemical constituents to leach out to the ground 
water would be substantially reduced due to the protection provided by 
treatment and the disposal system.

[[Page 63488]]

    First, we calculated what the potential concentrations would be in 
leachate released from LDR treatment standard compliant hazardous waste 
contaminated by LLW or NARM at LLRWDFs licensed by the NRC or an 
Agreement State, and assessed what the leachate concentrations would be 
at receptor wells in the vicinity of these LLRWDFs. We then compared 
the drinking water standards with the leachate concentrations which we 
calculated at these receptor wells, and concluded that the potential 
threat to drinking water would be very low, if any.
    Our comparison between the drinking water standard and the leachate 
concentrations which we calculated for all constituents shows that the 
two levels compare well (for 75% of 44 constituents the ratio is <1) 
(Ref. 7). For eight out of 44, the ratio is less than 10, for four 
constituents (benzo(a)pyrene, ethylene dibromide, hexachlorobenzene, 
and dioxin), it is greater than 10 and in the case of 
dibromochloropropane, it is greater than 10, but less than 200. 
However, based on the mixed waste treatment practices and the available 
waste volume data (with the LLMW generation rate of 108,000 cubic feet 
per year), we believe that these constituents with a ratio of greater 
than 1, are not generally present in these LLMW, and if present the 
waste volumes are small compared to the quantities of low-level waste 
disposed of in a disposal cell at LLRWDFs (Ref.7). Furthermore, 
generally, the volume of the containerized, exempted (solids only) 
waste disposed at these LLRWDFs licensed by NRC is expected to be quite 
small relative to the total quantities of containerized LLW that would 
be disposed in disposal cells at these facilities. (Ref: 7). Therefore, 
we believe any potential release would be minor.
    We evaluated NRC's LLRWDF siting, disposal unit engineering design, 
containerization requirement, and post-closure care practices. NRC 
siting regulations require that the disposal site provides long term 
stability and waste isolation. Final cover requires capping of a 
disposal unit such that infiltration of rain water and contact of waste 
with infiltrated water is minimal. The final cover system, consisting 
of compacted clay, high density polyethylene layer, and a vegetative 
layer would reduce entry of water into the disposal unit. The 
requirement for containerization of the waste also controls the 
potential for waste/liquid contact and subsequent leachate production. 
In addition, the landfill bottom design promotes short liquid/waste 
residence time. Thus, the contact of liquid with the waste would be 
minimal and that would act to minimize any hazardous constituent 
concentration in the leachate (and hydraulic head--a function of the 
presence of a water column and its thickness). These requirements 
significantly reduce the likelihood for potential leachate generation 
at LLRWDFs licensed by the NRC or Agreement States.
    These findings and the technical analysis discussed above led us to 
conclude that in the unlikely event of a chemical release, subsequent 
groundwater contamination is not likely to be of significant concern. 
To further verify our analyses, we discussed with state regulators, in 
states where the LLRWDFs are located, regarding any past releases from 
the existing LLRWDFs. Based on our investigation, we understand that 
there have been no releases of radionuclides, above the regulatory 
limits, detected in the ground water at offsite, commercial LLRWDFs 
since 10 CFR 61 has been promulgated in 1982. The LLRWDFs that were 
operational at that time were required to be upgraded to meet these 
regulations. Since then, the two low-level waste disposal facilities at 
Richland, WA and Barnwell, SC (that were operating before the 
promulgation of the NRC regulations at 10 CFR 61) have been 
retrofitted, and their licenses have been amended pursuant to 10 CFR 61 
required standards. In conclusion, we believe that the disposal of 
LLMW, meeting LDR treatment standards, in NRC or Agreement State 
licensed LLRWDFs will not pose a threat to ground water and cause 
concern for health risks. We recognize that some members of the public 
may still be concerned about potential chemical releases at LLRWDFs. 
Therefore, we are soliciting comments on whether we need to consider, 
as a condition for the exemption, groundwater monitoring for chemical 
releases. We are also requesting groundwater monitoring data from 
LLRWDFs.

vi. Why would corrective measures and financial responsibility 
provisions beyond those under 10 CFR 61 be unnecessary?

    We believe NRC's waste form requirements and low-level waste 
disposal cell design and capping requirements in combination with the 
condition that the waste meet LDR treatment standards will minimize 
water entry, leachate generation, and releases. Also, NRC requires 
corrective measures to address groundwater contamination if of concern. 
In the event of a release, based on our discussion with an Agreement 
State, we understand that both the radioactive and chemical components 
would be remediated because they are mixed together. This is especially 
true if the concentrations exceed regulatory limits such as safe 
drinking water levels or other alternate levels. Therefore, we believe 
that the Agreement States would also require a facility during active 
life, closure, and post closure phase to be responsive to releases and 
subsequent health concerns related to chemical constituents. Hence, a 
``corrective action'' requirement similar to that required under RCRA 
Subtitle C is not necessary.
    With regard to remediation, NRC's requirements for reporting and 
taking corrective measures for radiological releases (including mixed 
waste for the hazardous constituents) specify that a NRC-licensed 
facility respond to and institute remedial action for a release of 
radioactive waste. Also, in 10 CFR 61.53(b) a LLRWDF is required to 
have plans for taking corrective measures. When promulgating the 
exemption from RCRA Subtitle C for petroleum contaminated media and 
debris, EPA determined that subjecting contaminated media to RCRA C-
based corrective action was not appropriate or necessary because an 
alternative regulatory program (RCRA Subtitle I) would provide the 
requisite degree of protection to human health and the environment (55 
FR 11836). Our proposal to exempt LLRWDFs that accept exempted waste 
for disposal from RCRA corrective action requirements is similar to the 
petroleum contaminated media exemption. Based on our review of NRC 
corrective requirements for potential radiological releases, including 
mixed waste, we believe that those NRC requirements for addressing 
releases associated with mixed waste are adequate. The likelihood of a 
potential chemical release after the disposal of relatively small 
quantities of RCRA-exempted waste (especially containing hazardous 
constituents at or below the LDR treatment levels) of very low 
concentration is negligible (based on our UTS/MCL comparison) (Ref. 7). 
We, therefore, would expect imposition of RCRA Subtitle C-type 
corrective action to be unnecessary.
    With regard to financial assurance, the LLRWDFs are financially 
responsible for clean up of groundwater during operations, if it poses 
a health threat. In addition, 10 CFR 61 requires LLRWDFs to establish 
financial assurance that will provide funding for closure and post-
closure care. The NRC or Agreement States are unlikely to require clean 
up of radionuclides alone

[[Page 63489]]

in the event of mixed waste contamination. Therefore, we do not believe 
that additional RCRA-like financial assurance is necessary to address 
the unlikely event of chemical contamination of groundwater resulting 
from disposal of the exempted waste at LLRWDFs.
    In addition to the NRC-required corrective measures pursued by the 
LLRWDF or the Agreement State, we retain our broad RCRA authority, 
specifically, under RCRA 7003. Under this authority, we can bring suit 
and require the responsible party(ies) to take necessary action. And, 
under 40 CFR 302.4, we have independent response authority under 
CERCLA, if a release of a hazardous substance is in excess of a 
``reportable quantity.''
    We request comment on whether for any reason under this conditional 
exemption, we should require LLRWDFs to provide RCRA-like financial 
assurance for cleanup of RCRA hazardous constituents.

vii. What are the uncertainties of our technical analysis?

    This section identifies the primary sources of uncertainty 
associated with the comparative and technical analysis described above, 
and qualitatively describes how each may influence the results of these 
analyses. Sources of uncertainty identified in our analyses include the 
following:
     Much of the data that we used to assess the protectiveness 
of radioactive waste disposal regulations of NRC and EPA regulations 
for hazardous waste landfills were not directly measured. For example, 
we relied on existing reports and waste surveys; no independent field 
study supported the technical work. Some of the most important and 
sensitive parameters which we considered in our analyses include those 
that describe waste composition; waste management practices; and site 
characteristics. While not specifically addressed in our technical 
approach, the parameters and exposures considered include physiologic 
and behavioral exposure characteristics of the receptors; the physical, 
chemical, and biochemical properties of the hazardous waste 
contaminants; and toxicological effects indirectly factored in using 
MCL and DAF benchmarks.
     EPA did not have chemical constituent groundwater 
monitoring data from wells surrounding LLRWDFs. This information would 
help us to assess whether chemical constituent releases have occurred 
at these facilities. While information was available on radioactive 
constituents, the lack of chemical data results in the inability to 
evaluate the relationship for fate and transport and the potential risk 
to receptors for all possible constituent combinations. For example, 
chemical constituents present could be either more or less mobile than 
the radioactive constituents present, resulting in either an over-or 
underestimation of chemical hazards.
     LDR treatment to ground water protectiveness was of the 
screening nature and not all-inclusive. The information is limited to 
chemical constituents where values exist for MCL, LDR treatment 
standards, and DAFs. The gaps in this data for where an MCL, UTS, or 
DAF does not exist may result in either an overestimation or 
underestimation of the potential chemical hazard to receptors.
     We did not conduct a quantitative risk-based analysis 
geared to the sites where disposal may occur. We also did not 
quantitatively estimate the risk of developing cancer from the 
potential exposure to chemical contaminants in the waste. The lack of a 
quantitative risk analysis leads to sources of uncertainty in assessing 
the most sensitive potential toxicological effects, exposure routes, 
and constituents of concern within the waste. While our analysis did 
factor in site-specific data, we did not address future siting of 
LLRWDFs because of the difficulty of siting new facilities as seen in 
recent site rejections (for example, Ward Valley in CA, Nebraska site). 
As a result, our technical analyses might overestimate or underestimate 
the potential chemical hazard to receptors.
     The technical analysis did not specifically assess risks 
to sensitive subpopulations and environments. The likelihood that 
landfills are located in certain environmental areas where constituents 
might move significantly with groundwater is uncertain. The waste 
treatment, packaging, waste form requirement, and the existence of 
physicochemical limitations (e.g., interactions between contaminants 
and aquifer material), biological and chemical degradability of other 
constituents that may be present (e.g., sandy or other porous soils), 
soil organic matter and clay content, soil exchange capacity, dissolved 
organics or organic acids in the groundwater, competing cations, 
changes in soil environmental conditions such as organic waste matrix, 
pH, redox potential or soil solution composition over time, and other 
physical and chemical characteristics of the ground water and 
geological medium, might significantly increase/decrease the mobility 
of chemical constituents in groundwater in the short term (seasonal 
variation) as well as long term (for example 10,000 years).
     The likelihood that the NRC licensing process will apply 
more stringent groundwater protection requirements and criteria to 
mitigate radiological releases to the groundwater is given. With regard 
to mitigating chemical releases to the groundwater, if any, by the 
licensing agency we understand that the licensing agency would require 
remediation of radioactive material in groundwater and work with any 
other regulatory authorities to ensure that non-radioactive material 
contamination is also addressed.
     The extent to which State requirements will address some 
of the key landfill design factors discussed above is uncertain.
    There are potentially significant uncertainties regarding whether 
and how exposure will occur. Also, our comparison between land disposal 
regulations for NRC and EPA presents simplifications of reality. The 
different approaches used by the two programs lead to a certain degree 
of uncertainty in making the comparative analyses used in this study. 
In addition, the variations in site-specific conditions and 
implementation of the permit/license are virtually impossible to 
completely account for when determining protection of human health and 
the environment. The comparison was intended to approximate real-world 
conditions and processes, and their relationships. Because of the 
nature of our technical approach, the analysis we have pursued for this 
proposal did not include all parameters or equations commonly seen in a 
detailed risk-based modeling approach. Consequently, the technical 
approach was based on various assumptions and simplifications, and as a 
whole could result in either an overestimation or underestimation of 
the potential comparative protectiveness between the EPA hazardous 
waste and NRC LLW disposal systems.
3. What Did We Conclude From our Technical Analyses?
    We evaluated NRC's LLRWDF siting, disposal unit engineering design, 
containerization requirement, and post-closure care practices. We found 
that as a whole these attributes provide comparable protection to that 
provided by a RCRA hazardous waste landfill. NRC siting regulations 
require that the disposal site provides long term stability and waste 
isolation. Final cover requires capping of a disposal unit such that 
infiltration of rain water and contact of waste with infiltrated water 
is minimal.

[[Page 63490]]

The final cover system, consisting of compacted clay, high density 
polyethylene layer, and an evapotranspiration (that is, evaporation of 
water from top layers of cover and water removal by vegetation used as 
an integral part of the final cover) rate greater than the rate of 
precipitation would all but eliminate the entry of water into the 
disposal unit. The requirement for containerization of the waste also 
limits the potential for waste/liquid contact and subsequent leachate 
production. In addition, the landfill bottom design promotes short 
liquid/waste residence time; thus, the contact of liquid with the waste 
would be minimal, minimizing hazardous constituent concentration in the 
leachate and hydraulic head (a function of the presence of a water 
column and its thickness). At the NRC or Agreement State regulated 
facilities, the likelihood of water and waste contact is highly 
unlikely and therefore, potential for leachate generation is 
significantly reduced, thus mitigating the need for a liner and 
leachate collection. We found many similarities between the two 
programs (Ref. 7):
     Locational requirements for siting of disposal units;
     Prohibition on the disposal of free liquids;
     Treatment of waste to reduce health hazards;
     Disposal of waste in an engineered landfill; and
     Extended period of institutional control.
    There were a few differences between the two programs:
     Hazardous waste landfills must have a liner and leachate 
collection, while AEA only requires leachate collection;
     Most low-level waste disposal can only occur as 
containerized waste (in containers with a structural integrity of 100-
300 years), while hazardous waste disposal does not specify containers, 
although the liner could be viewed as a form of containerization;
     Since hazardous waste disposal regulations do not require 
containerization of solid waste, the potential for particulate 
emissions exists; and
     NRC-requires institutional control for a minimum of one 
hundred years under State control; while EPA-requires post closure care 
for 30 years.
    In addition, the adoption and enforcement of both the EPA and NRC 
regulations by the States tends to make the State programs under both 
EPA and NRC more protective than the Federal requirements. States 
generally consider site-specific concerns (such as sensitive 
populations or the local economy) in the design of their regulations 
and the implementation of the state programs.
    States may also consider site-specific concerns such as protection 
of surface water, wetlands or endangered species. Thus, a State program 
may be more stringent than the RCRA federal program or less stringent 
(depending on the site performance assessment) as allowed under the 
NRC. As part of the State-implemented conditional exemption, a State 
may require groundwater monitoring for potential chemical releases or 
inspect the LLRWDF-generated groundwater monitoring data for detecting 
releases of radionuclides and use this information as a surrogate or 
indicator for releases of hazardous constituents with similar fate and 
transport characteristics.
    In conclusion, even though EPA and NRC waste disposal regulations 
follow different approaches, we believe that both ultimately achieve a 
high level of protection.

H. Key Stakeholder Issue

    In 1995, we published in the Federal Register, a notice of proposed 
rulemaking (referred to as the HWIR95), which, among other things, 
requested comments on several options for conditional exemption from 
RCRA Subtitle C management requirements (60 FR 66344; December 21, 
1995). One option we suggested (60 FR 66344, 66400-66401) would have 
exempted mixed waste from Subtitle C hazardous waste disposal 
regulations if they were treated to meet risk-based chemical 
constituent concentration levels and were managed in disposal 
facilities subject to controls imposed under the AEA. In response to 
the HWIR95 proposal, the Department of Energy (DOE) submitted 
alternative proposals for our consideration, which would have allowed 
certain treated mixed wastes generated by DOE to be conditionally 
exempted from RCRA Subtitle C hazardous waste disposal requirements, if 
such mixed wastes were disposed in a DOE self-regulated LLRWDF. Several 
State RCRA Agencies and Attorneys' General expressed concern over DOE's 
proposals, and also were opposed extending the HWIR95 risk-based exit 
levels to DOE mixed waste (see public comment in RCRA docket in 
response to the HWIR95 proposal-Ref. 15). In particular, States were 
concerned that they would no longer have regulatory jurisdiction over 
DOE's RCRA-exempted radioactive waste once the wastes are disposed in 
DOE's self-regulated LLRWDF. We encouraged DOE to work with the States 
to resolve this issue, since States would be the implementing agencies 
of a proposed RCRA exemption in most cases. The States and DOE held 
discussions over a period of one year without reaching a resolution. 
DOE has subsequently suspended the alternative proposals it had 
submitted. DOE has also been working with the States to discuss its 
LLMW disposal options and plan LLMW disposal capacities. The planning 
of DOE's LLMW disposal facilities would eventually provide DOE with 
relief to its LLMW disposal dilemma.
    Given that the issue between the States and DOE was not resolved, 
we tried in this proposal to provide some regulatory relief to DOE for 
its LLMW while respecting the States' need to retain oversight of DOE 
generated LLMW. We are, therefore, proposing to allow the exemption to 
be applicable to all generators of LLMW or eligible NARM including DOE. 
However, we limited the disposal of the RCRA-exempted waste to only 
those LLRWDFs licensed and regulated by NRC or Agreement State. In this 
way, DOE could utilize the conditional exemption for disposal while the 
NRC or Agreement State radioactive material control programs would 
retain the oversight of the RCRA-exempted waste. In addition, 
commercial LLRWDFs have indicated that they would be willing to 
consider accepting DOE conditionally exempt waste for disposal, if such 
acceptance does not conflict with their agreement with the State low-
level waste compacts.

VII. Regulatory Impacts

    We anticipate that implementation of this rule will result in 
incremental benefits (from cost savings and risk reductions) and some 
incremental costs. These costs are expected to be much smaller than the 
overall benefits of the rule. (Ref. 14 and 17.)
    We have based our assessment on the best data available; full 
references and details are available in the Regulatory Impact Analysis 
which accompanies today's proposal. We have also assumed that 
generators will be willing and able to dispose of their waste in 
LLRWDFs, within the scope of existing limitations on capacity and 
acceptance criteria.
    Significant uncertainties make it unusually difficult to estimate 
the impacts of this rulemaking. In addition to uncertainties about the 
quantities of LLMW generated in the U.S. there are also questions about 
the eventual disposition of these wastes. Although this rulemaking 
creates opportunities for disposal of much of this waste, these 
opportunities also depend on as-yet undetermined action by State 
regulatory

[[Page 63491]]

agencies, LLRW disposal facilities, and the generators themselves. 
These uncertainties and assumptions, however, do not affect the 
Agency's assessment of positive net benefits stemming from this rule; 
they only affect the magnitude of that net benefit. To the extent that 
any generators can take advantage of storage or disposal provisions of 
this proposal, net benefits will accrue.
    Sections A and B below provide further detail on benefits and costs 
associated with this rule; Section C addresses economic impacts. We 
base assessment of benefits and costs on a comparison of waste 
management after implementation of this proposal as a final rule 
compared with waste management in the absence of this rule.

A. What Are the Regulatory Benefits of This Rule?

    In 1990, EPA, NRC and the Oak Ridge National Laboratory conducted a 
survey of commercially generated low-level mixed waste (Ref. 8). A 
report of the survey findings was published in 1992 under the title: 
National Profile on Commercially Generated Low-Level Radioactive Mixed 
Waste. As stated in the Executive Summary ``The * * * objective of the 
work was to compile a national profile on the volumes, characteristics, 
and treatability of commercially generated low-level mixed waste * * * 
by major facility categories * * * [including] academic, industrial, 
medical, and * * * government facilities and nuclear utilities.'' Based 
on this research, and site visits in 1998 (see docket to ANPR), we 
believe that there are a number of LLMW generators, who could benefit 
from this proposed regulatory relief. Based on the 1992 Study (which 
was weighted to develop a statistically valid estimate of the nation) 
we estimated that the national generation rate of mixed waste was 
108,000 cubic feet per year and that 4,000 cubic feet of mixed waste 
was in storage for various reasons. (Ref. 14 and 17.) Nuclear utilities 
accounted for roughly 10 percent of the total commercially generated 
LLMW volume in the United States. ``The industrial category was 
estimated to be the largest generator and accumulator of mixed waste, 
with over 36% of the generation and nearly 57% of the storage, of the 
total mixed waste in the United States in 1990.'' (Ref. 8, p. 40). 
Based on our discussions with the regulated community, we understand 
that commercial generators of LLMW have taken a number of steps, 
including pollution prevention, waste minimization, and source 
reduction (such as using water-based scintillation cocktails as opposed 
to the solvent-based formulations), to reduce quantities of LLMW they 
generate. Also, nuclear power plants have instituted steps for 
controlling the use of organic solvents (for example, establishing 
procedures to track quantities of organic solvents purchased, used, and 
left over/discarded). Therefore, despite industrial growth over the 
intervening years, we believe that the LLMW volumes generated today 
would not be much different from those reported in 1992. Some federal 
facilities also generate LLMW. The total volume of LLMW generated 
annually by DOE facilities far exceeds the volume generated by the 
commercial sector.
    Benefits from this rule may accrue in the following areas:
     Permitting cost savings: Those generators needing RCRA 
permits only for storage or treatment of their mixed wastes will save 
these permitting costs and associated corrective action costs.
     Decay in Storage cost savings: The rule would allow 
facilities to store certain wastes while their radioactivity decays. 
These wastes could then be treated and disposed as hazardous waste, 
which is less expensive than LLMW treatment and disposal. EPA estimates 
aggregate cost savings from these waste streams will be between 
$800,000 and $2,600,000 per year.
     Other disposal cost savings: This rule would facilitate 
disposal of wastes in LLRWDFs, possibly saving between $100,000 and 
$800,000 each year. EPA has not estimated savings resulting from 
reduced storage costs.
     Other cost savings: Generators of mixed waste and Federal/
state RCRA regulating agencies are expected to save administrative 
burden and costs because of this regulatory relief.
     Risk Reductions: EPA anticipates that generators will take 
advantage of relaxed storage restrictions to allow certain LLMW to 
undergo decay in storage. NRC or Agreement State approves this process 
which allows certain short-lived radionuclides in these wastes to 
decay. The remaining decayed waste no longer meets the definition of 
radioactive under the AEA. Since EPA does not expect these wastes to be 
treated or handled during the radioactive decay process, waste handlers 
in treatment and transportation will not be exposed to this 
radioactivity. This decrease in exposure translates to an unquantified 
risk reduction, attributable to the relaxed RCRA storage restrictions 
in this proposed rule.
    DOE may also save on transportation and disposal costs, to the 
extent that they choose to meet the conditions for exemption and 
dispose of wastes in commercial disposal facilities licensed by NRC or 
an Agreement State. DOE would not gain permitting or storage cost 
savings, since these regulations do not currently apply to DOE 
facilities.

B. What Are the Costs of This Rule?

    Generators, who are not meeting regulatory requirements for 
disposal, may incur some increased spending for treatment and disposal 
relative to their current costs under RCRA hazardous waste management 
if this rule is implemented, but not relative to costs of meeting 
existing RCRA Subtitle C regulations. This is because this rule will 
open up disposal capacity for wastes which currently do not meet the 
waste acceptance criteria of the existing LLMW disposal facility. 
Without this rulemaking, these legacy wastes might simply continue to 
be stored on site indefinitely, leaving the generators in violation of 
RCRA permit requirements. These generators would incur not only storage 
costs, but costs associated with being in violation of RCRA.

    Generators taking advantage of disposal exemptions will incur 
costs to meet notification conditions. EPA has not quantitatively 
estimated costs of compliance with these notification conditions; 
but expects these costs to be smaller than the administrative cost 
savings that accrue to generators under this proposed rulemaking.

Under this rule, there will also be some increased costs to EPA and 
state agencies overseeing management of mixed wastes. We expect these 
entities to incur costs associated with notification conditions for 
generators/treaters of LLMW (that meets the LDR treatment standards); 
sending their waste for disposal at LLRWDFs and related implementation 
costs. This will result in a small increase in costs for these 
regulating bureaus. As a whole, costs to EPA and state agencies are 
likely to be far lower, since these regulatory agencies will have 
reduced administrative costs as noted in section A above.

C. What Are the Economic Impacts of This Rule?

    By allowing LLMW to be disposed as LLW, this rule may have impacts 
on the national market for disposal of LLW, although we have not 
specifically modeled these impacts. The larger the volume to be added 
to the disposal market, the greater the effects are likely to be. The 
largest volumes of LLMW potentially to be disposed at commercial 
LLRWDFs are those generated by the Department of Energy, including 
wastes from site cleanup/remediation activities.
    Overall, we expect aggregate economic impacts to be positive for 
all

[[Page 63492]]

LLMW generators and LLW disposal facilities. Some generators may find 
increased costs for treating and disposing of wastes which were 
previously stranded on-site; without the rule, these facilities would 
incur permitting costs, continuing storage costs, and potentially the 
costs of being in violation of RCRA. The only possible negative impact 
may fall upon the single mixed waste disposal facility which currently 
accepts some LLMW for disposal. By allowing LLRWDFs to dispose of the 
LLMW that meets Land Disposal Restrictions, this rule will introduce 
some competition into the market for disposal of LLMW. Most of the 
wastes affected by this proposed rule, however, are unlikely to have 
been disposed at the existing facility (see the Regulatory Impact 
Analysis for complete explanation. Ref. 14 and 17).

VIII. State Authorization

    As of December 1998, a total of 40 states and one territory were 
authorized for implementing RCRA mixed waste regulations. In States 
(and territories) that have not received final authorization to 
implement the RCRA program, the final rule would apply upon the 
effective date. Since this rule is not being promulgated under HSWA 
statutory authority, it would not apply under RCRA in States with final 
authorization until those States amend their laws and become authorized 
for it. Moreover, because this rule will likely be considered less 
stringent than the current RCRA program (since the proposed rulemaking 
suggests some additional flexibility for disposal or permitting), 
States will not be required to adopt it.
    We, however, encourage States to adopt this conditional exemption. 
The conditional exemption provides a regulatory enforcement mechanism 
for States to bring against generators who may be out of compliance 
with the conditions. Under this regulatory framework, States would 
retain their regulatory oversight and RCRA enforceability provisions 
over the non-compliant claimant. A LLMW generator not meeting the 
conditions for exemption from hazardous waste storage requirements and 
those for exemption from the definition of hazardous waste when LLMW 
disposal occurs at LLRWDFs licensed by the NRC or an Agreement State 
may be subject to the penalties under the RCRA hazardous waste 
enforcement program.
    If States where LLRWDFs licensed by the NRC are located (for 
example, South Carolina, Utah, and Washington) have concerns regarding 
post-disposal releases of hazardous constituents in LLMW, these States 
could address these concerns when adopting this rule. (See Section 3009 
of RCRA.) A State may add a requirement for ground water monitoring for 
potential chemical releases, or use the LLRWDF-generated groundwater 
monitoring data for release of radionuclides as surrogate or indicator 
data for releases of hazardous constituents with similar fate and 
transport characteristics.

IX. Relationship With Other RCRA and Environmental Programs

A. What is the Relationship of This Proposal With Other RCRA Regulatory 
Programs?

    Below, we discuss how this proposed rule would affect other 
relevant RCRA regulatory programs.
1. Does This Proposal Change How You Determine if a Waste is Hazardous?
    No, the proposed rule is a conditional exemption from the RCRA 
definition of hazardous waste. It does not change the general 
requirements to determine if a waste is hazardous. Under current RCRA 
regulations, if you generate a solid waste, you must first determine if 
it is a hazardous waste as outlined in 40 CFR 262.11, Hazardous Waste 
Determination. A generator of LLMW must also determine if the waste is 
excluded from regulation under 40 CFR 261.4, Exclusions. Next, a 
generator must determine whether the waste meets the regulatory 
description for a listed hazardous waste in subpart D of part 261, 
Lists of Hazardous Wastes. If the waste is not a listed hazardous 
waste, the generator must then determine if the waste exhibits a 
characteristic defined in subpart C of part 261.
    LLMW that meets the LDR definition of non-wastewaters and exhibits 
toxicity characteristic must be treated to meet the LDR treatment 
standards and decharacterized to meet the TC regulatory limits at 
Sec. 261.24 before it can exit RCRA Subtitle C and be disposed of as a 
nonhazardous solid waste. Under the proposed conditional exemption 
addressing disposal of LLMW, LLMW that is a TC waste must be treated to 
meet the LDR treatment standards, but not the TC regulatory limit in 
instances where the TC limit is lower than the LDR treatment level.
2. Can a LLMW or Eligible NARM be a Non-Hazardous Waste Under this 
Proposal?
    LLMW or eligible NARM meeting the LDR treatment standards in a 
``pure untreated form'' (that is, as generated waste) would be a 
conditionally exempt non-hazardous waste under this proposal. For the 
waste to maintain a non-hazardous waste status, the generator must meet 
all the other conditions for exemption proposed today.
3. How Will the RCRA-Exempted Waste Differ From Wastes Delisted per 40 
CFR 260.22?
    The evaluation criteria used for delisting vary from today's 
proposal to conditionally exempt LLMW or eligible NARM from the RCRA 
definition of hazardous waste. In today's proposed conditional 
exemption the evaluation criteria are national and categorical. This 
contrasts with the evaluation criteria for delisting which are based 
upon a designated waste stream and are case specific. In delisting, we 
evaluate the processes generating a specific waste stream to determine 
the constituents likely to be present, as well as the potential 
variability in the waste.
4. Will My Waste Analysis Plan of My RCRA-Permitted TSDF Change?
    No, if you are an owner or an operator of RCRA-permitted or interim 
status TSDF, also licensed by the NRC for managing LLW, and plan to 
claim a conditional exemption, you remain subject to the waste analysis 
and waste analysis plan requirements of part 268. DOE treatment 
facilities treating LLMW to meet the proposed conditions for exemption 
are also subject to the waste analysis and waste analysis plan 
requirements of part 268.
    If you are not a RCRA-permitted hazardous waste treatment facility 
and elect to employ the proposed exemption procedures following 
promulgation of a final LLMW rule, you must submit a RCRA part B permit 
application.
5. Will the Proposed Rule Change How the RCRA Closure Requirements 
Apply to My Disposal Facility?
    If you're a disposal facility subject to NRC regulations for 
disposal of LLW and you accept conditionally exempt LLMW the hazardous 
waste facility closure requirements do not apply. If, however, it has 
been determined that your disposal unit received RCRA-exempt mixed 
waste from a generator who has violated the conditions for exemption, 
the disposal cell where the exempted waste has been placed for 
permanent disposal may become a RCRA regulated Subtitle C unit subject 
to the requirements of 40 CFR parts 264 or 265, including closure 
requirements, until you completed clean closure of the unit or unless 
all of the wastes in the unit were delisted. You would normally be 
required to complete closure

[[Page 63493]]

activities within 180 days after receiving the final volume of 
hazardous waste. (See Time Allowed for Closure in 40 CFR 264.113(b) and 
265.113(b).) However, RCRA closure requirements would allow you to 
delay closure of your waste management units, while continuing to 
receive the RCRA-exempted low-level mixed waste, if you meet certain 
conditions. (See ``delay of closure'' options at 264.113(d) and 
265.113(d).
    We believe that the availability of a delay-of-closure option 
provides much of the flexibility needed to allow for the uninterrupted 
management of exempt waste, while providing assurance that the 
protections afforded by the closure regulations for RCRA Subtitle C 
units, such as evaluation of soil and groundwater at closure, are not 
lost.
    To minimize applicability of RCRA hazardous waste management 
requirements, owners/operators of a NRC or Agreement State licensed 
LLRWDF may consider some precautionary measures. For example, you may 
require LLMW generators to provide you with any documentation (e.g., 
test results, process knowledge) that the generators have used to make 
their LDR determination. Alternatively, you may require LLMW generators 
to provide a representative LLMW sample for independent waste testing 
and analysis to verify that the waste indeed meets the LDR treatment 
levels. This would assist you to assure that a LLMW generator has not 
mis-characterized the waste and/or to document compliance with 
exemption requirements in the event a RCRA program agency exercises its 
enforcement authority with regard to your facility.
6. How Does the Conditional Exemption Relate to RCRA Air Emission 
Standards?
    Under this proposal LLMW or eligible NARM meeting LDR treatment 
standards is not likely to release volatile air emissions. Thus, it 
would be exempt from RCRA Subtitle C regulations, including the air 
emission standards. Once a LLMW or eligible NARM is no longer regulated 
as hazardous, any unit in which the waste is managed (assuming no other 
hazardous waste management in that unit) is no longer subject to RCRA 
Subtitle C regulations, including 40 CFR Parts 264 and 265, Subparts 
AA, BB, and CC.

B. What is the Relationship of this Rule to Other Environmental 
Programs?

1. How are CERCLA Actions Affected by this Proposal?
    The affect of today's proposed regulations on Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) 
actions depends on whether the waste will be managed on or off the 
CERCLA site. Off-site disposal of CERCLA remediation waste must comply 
with all conditions of today's proposal to take advantage of the 
exemption provided. These wastes must go to a LLRWDF that is in 
compliance with the 10 CFR Part 61 regulations and is licensed by the 
NRC or Agreement State.
    Management of mixed waste during on-site remediation waste must 
meet all applicable, or relevant and appropriate requirements of 
Federal or State environmental laws or justify a waiver from those 
standards. This proposal requires that the disposal facility be 
licensed and overseen by the NRC or Agreement State. On-site CERCLA 
response action must comply with the substantive provisions of 
environmental regulations and standards, but not the administrative 
provisions. As such no permit or license is required for on-site 
activities. In accordance with the National Contingency Plan and the 
statute, today's proposed regulation is not expected to be an 
applicable requirement at most CERCLA sites managing LLMW. However, 
relevant and appropriate determinations are a site-specific 
determination and these may or may not be deemed relevant and 
appropriate given site-specific conditions. In general, we expect that 
most CERCLA sites will meet both the substantive provisions of the RCRA 
Subtitle C landfill requirements as well as the 10 CFR 61 requirements 
for a LLRWDF.
2. How Might Clean Air Act Regulations be Affected?
    This rule will not affect Clean Air Act regulations. LDR treatment 
of LLMW or eligible NARM remains subject to the air emission standards 
applicable to hazardous waste treatments under RCRA.
3. How Might Clean Water Act Regulations be Affected?
    This rule will not affect Clean Water Act regulations. Any water 
discharges from LDR treatment of LLMW or eligible NARM remain subject 
to water discharge standards applicable to hazardous waste treatment 
under RCRA.

X. Regulatory Assessment Requirements

A. Executive Order 12866: Determination of Significance

    Under Executive Order (E.O.) 12866, (58 FR 51,735 (October 4, 
1993)) the Agency must determine whether the regulatory action is 
``significant'' and therefore subject to OMB review and the 
requirements of the Executive Order. The Order defines ``significant 
regulatory action'' as one that is likely to result in a rule that may: 
(1) have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action.'' While 
this notice of proposed rulemaking establishes few regulatory 
requirements, it could ultimately result in a rule that would satisfy 
one or more of the remaining criteria. Therefore, this action is a 
``significant regulatory action'' under the terms of E.O. 12866. As 
such, this action was submitted to OMB for review. Changes made in 
response to OMB suggestions or recommendations will be documented in 
the public record.
    Under the terms of E.O. 12866, EPA is to prepare for any 
significant regulatory action an assessment of its potential costs and 
benefits. If that action satisfies the first of the criteria listed 
above, this assessment must include, to the extent feasible, a 
quantification of these costs and benefits, the underlying analyses 
supporting such quantification, and an assessment of the costs and 
benefits of reasonably feasible alternatives to the planned regulation. 
This proposed rulemaking is expected to yield net benefits to society, 
because of reduced waste management and administrative costs for both 
generators of mixed waste and regulatory agencies, and reduced worker 
exposures. A summary description of costs and benefits associated with 
this proposal appears in section VII. An initial regulatory impact 
analysis has been prepared and is available in the docket for today's 
proposed rulemaking. EPA is requesting comment on the costs and 
benefits of any of the possible regulatory changes discussed in this 
proposed rulemaking, as well as on appropriate methodologies

[[Page 63494]]

for assessing them. We would like to hear from States, Tribes, members 
of the public, and the regulated community.

B. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, EPA may not issue a regulation that has 
federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, or EPA consults with 
State and local officials early in the process of developing the 
proposed regulation. EPA also may not issue a regulation that has 
federalism implications and that preempts State law unless the Agency 
consults with State and local officials early in the process of 
developing the proposed regulation.
    If EPA complies by consulting, Executive Order 13132 requires EPA 
to provide to the Office of Management and Budget (OMB), in a 
separately identified section of the preamble to the rule, a federalism 
summary impact statement (FSIS). The FSIS must include a description of 
the extent of EPA's prior consultation with State and local officials, 
a summary of the nature of their concerns and the agency's position 
supporting the need to issue the regulation, and a statement of the 
extent to which the concerns of State and local officials have been 
met. For final rules subject to Executive Order 13132, EPA also must 
submit to OMB a statement from the agency's Federalism Official 
certifying that EPA has fulfilled the Executive Order's requirements.
    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government as specified in Executive Order 13132, 
because it will not impose any requirements on States or any other 
level of government. As explained above, today's proposal would provide 
regulatory flexibility for generators and treaters of Low Level Mixed 
Waste by establishing a conditional exemption from RCRA Subtitle C 
requirements, which States would not be required to adopt. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

C. Executive Order 12898: Environmental Justice

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations'' as well as through EPA's April 1995, ``Environmental 
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda 
Report'' and National Environmental Justice Advisory Council, EPA has 
undertaken to incorporate environmental justice into its policies and 
programs. EPA is committed to addressing environmental justice 
concerns, and is assuming a leadership role in environmental justice 
initiatives to enhance environmental quality for all residents of the 
United States. The Agency's goals are to ensure that no segment of the 
population, regardless of race, color, national origin, or income, 
bears disproportionately high and adverse human health and 
environmental effects as a result of EPA's policies, programs, and 
activities.
    To address this goal, EPA considered the impacts of this proposed 
rulemaking on low-income populations and minority populations. EPA 
believes that due to low estimated waste volumes stored under the 
storage exemption, any potential risk resulting from this proposal 
would be very small. In addition, this waste would be stored according 
to another regulatory authority (NRC) which offers comparable 
protection. Under the disposal proposal, the exempted waste would be 
disposed following NRC regulations which provide comparable protection 
and low risk. The Agency does not currently have data on the 
demographics of populations surrounding facilities which generate low-
level mixed waste that potentially could be affected if today's 
proposed rule were finalized. However, we believe that the LLMW 
generators storing the waste and the LLRWDFs do not appear to be 
concentrated in areas where the minority or the disadvantaged groups 
reside. Therefore, we believe there would not be disproportionately 
high and adverse environmental or economic impact on any minority or 
low-income group, or on any other type of affected community. Any 
minority group or low-income group affected by alternatives described 
in this proposed rulemaking has an opportunity to review and comment on 
the proposal.

D. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997) applies to any rule that: (1) is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This proposed rulemaking is not subject to E.O. 13045 because it is 
not an economically significant rule as defined by E.O. 12866. We do 
not expect this rule to disproportionately affect children because we 
do not expect children to be entering LLMW storage areas which are 
locked and have limited access requirements imposed by NRC. Similarly, 
disposal facilities must meet NRC regulations for public safety thus 
reducing the likelihood of exposure of the nearby population including 
children.

E. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under E.O. 13084, EPA may not issue a regulation that is not 
required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. This order requires EPA to provide to the Office of 
Management and Budget, in a separately identified section of the 
preamble to the rule, a description of the extent of EPA's prior 
consultation with representatives of affected tribal governments, a 
summary of the nature of their concerns, and a statement supporting the 
need to issue the regulation. In addition, E.O. 13084 requires EPA to 
develop an effective process that permits elected officials and other 
representatives of Indian tribal governments ``to provide

[[Page 63495]]

meaningful and timely input in the development of regulatory policies 
on matters that significantly or uniquely affect their communities.'' 
Today's proposal does not significantly or uniquely affect the 
communities of Indian tribal governments. There is no impact to tribal 
governments as the result of generator's choosing to claim a 
conditional exemption for storage units containing low-level mixed 
waste. Accordingly, the requirements of section 3(b) of Executive Order 
13084 do not apply to this rule.

F. The Regulatory Flexibility Act as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act (RFA) to require 
Federal agencies to provide a statement of the factual basis for 
certifying that a rule will not have a significant economic impact on a 
substantial number of small entities. EPA has examined this proposed 
rulemaking's potential effects on small entities as required by the 
Regulatory Flexibility Act and has determined that this action will not 
have a significant economic impact on a substantial number of small 
entities. The overall economic effect of this regulation has been 
determined to be a net savings to all regulated entities who choose to 
avail themselves of a conditional exemption for storage or disposal of 
the mixed wastes they generate. Since this rule will not impose 
additional costs on any entities, I hereby certify that this rule will 
not have a significant economic impact on a substantial number of small 
entities. This rule, therefore, does not require a regulatory 
flexibility analysis.

G. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Sec. 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, Sec. 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of Sec. 205 do not 
apply when they are inconsistent with applicable law. Moreover, 
Sec. 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
Sec. 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements. The UMRA excludes from the definition of ``Federal 
private sector mandate'' duties that arise from participation in a 
voluntary federal program and also generally excludes from the 
definition of ``Federal intergovernmental mandate'' duties that arise 
from participation in a voluntary federal program. The Agency's 
analysis of compliance with the Unfunded Mandates Reform Act (UMRA) of 
1995 found that the proposed rulemaking imposes no enforceable duty on 
any State, local, or tribal governments or the private sector. Thus, 
today's proposal is not subject to the requirements of Sec. 202 and 
Sec. 205 of UMRA.

H . National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub L. No. 104-113, Sec. 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (for example, materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by voluntary consensus standards bodies. The NTTAA 
directs EPA to provide Congress, through OMB, explanations when the 
Agency decides not to use available and applicable voluntary consensus 
standards. This proposed rulemaking does not involve technical 
standards. In 1997, EPA in cooperation with NRC developed a testing 
guidance for sampling and testing of mixed waste. Facilities subject to 
this rulemaking may continue to use that guidance which allows analysis 
of smaller samples, thus reducing exposure of workers to radiation 
hazards.

I. Paperwork Reduction Act

    Under the implementing regulations for the Paperwork Reduction Act, 
an agency is required to certify that any agency-sponsored collection 
of information from the public is necessary for the proper performance 
of its functions, has practical utility, is not unnecessarily 
duplicative of information otherwise reasonably accessible to the 
agency, and reduces to the extent practicable and appropriate the 
burden on those required to provide the information (5 CFR 1320.9). Any 
proposed collection of information must be submitted, along with this 
certification, to the Office of Management and Budget for approval 
before it goes into effect.
    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1922.01) and a copy may be obtained from Sandy Farmer, OPPE 
Regulatory Information Division; U.S. Environmental Protection Agency 
(2137); 401 M St., S.W.; Washington, D.C. 20460 or by calling (202) 
260-2740.
    This information collection is required to provide documentation of 
conditional exemption from RCRA Subtitle C requirements. The exemptions 
from RCRA Subtitle C under today's proposed action would require no 
government approval before being effective. As such, information 
collection, maintenance and reporting issues are especially important 
due to the self-implementing nature of this action. Successful 
implementation of

[[Page 63496]]

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

XI. List of Comments Being Requested By EPA in This Proposal

    In this proposal, we are seeking comment on several issues that 
concern stakeholders potentially affected by this rule, and the public. 
Please note, even if you commented on the Advance Notice of Proposed 
Rulemaking (64 FR 10063-73, March 1, 1999), EPA is seeking your 
comments on this proposal. Even if you submitted comments on the March 
1, 1999 ANPR, you must submit comments on this revised and expanded 
proposal by the deadline listed above in order to have your comments 
considered for this proposed rulemaking. Below, we provide a list of 
these comment requests, cross-referenced with the applicable section of 
the proposal.

Storage

--We seek comment on ways we propose to address the issue of dual 
regulation of LLMW storage, treatment, transportation, and disposal. 
(III.A.)
--We would appreciate comments regarding the standard to use for 
determining when the decayed waste

[[Page 63497]]

would reenter RCRA Subtitle C management. (V.A.1.)
--We invite comment on whether a time limit may be appropriate, and, if 
so, on what basis that time limit might be established. (V.A.2.)
--We invite comment on how waste being stored for decay under 10 CFR 
20.2001(a)(2) and 10 CFR part 35 can be completely decayed while at the 
same time reenter RCRA Subtitle C without a gap in time during which 
the waste is not regulated as either a hazardous or radioactive. Please 
indicate in your comment what mixed wastes you generate that have 
radionuclides with activity levels which would not qualify for the 
conditional exemption we are proposing if it were based on whichever 
occurred first-- ten half-lives of decay or not registering above 
background levels. Also indicate how this limitation would affect your 
management of the waste. (V.A.2).
--We seek comment on whether this condition should be: broad (and 
include the loss of the exemption if any LLW storage requirement of the 
NRC or Agreement State license is not met); or more specific (and limit 
the loss of the exemption to those violations which may result in an 
environmental impact). (V.B.2.(b))
--We request comment regarding both the definition of ``on-site'' and 
the appropriateness of extending a conditional exemption to facilities 
that own/operate storage facilities that do not meet our current 
definition of ``on-site.''(V.B.2.(c))
--We also seek comment on whether the conditional exemption should 
include a storage facility which serves as a consolidation point for 
single entity. (V.B.2.(c))
--We request comment on whether we should include in the conditional 
exemption for storage those mixed waste treatment facilities that 
manage wastes from other generators. (V.B.2)
--We are interested in additional information regarding the safety of 
commercial TSDFs that could provide a basis for expanding the scope of 
the exemption to include off-site storage at commercial TSDFs. (V.B.2)

Disposal

--We are seeking comment and supporting information concerning the 
applicability of this proposal to hazardous waste contaminated with 
NARM. (VI.B.1)
--We are seeking comment on whether to provide for a 90-day waiting 
period during reclaiming of an exemption. (VI.D.4)
--We request comment on whether, for any reason, this conditional 
exemption should apply only to hazardous soils contaminated with 
radioactive waste and treated to LDR standards derived from the 
original waste codes, rather than to soils treated to alternative soil 
treatment standards. (VI.E.1)
--We are asking for public comments on the approach of a state approved 
site-specific, risk-based alternative to allow the disposal of 
hazardous waste contaminated with radioactivity in any LLRWDFs 
including DOE's LLRWDFs. (VI.F.)
--We seek comments on the site-specific risk-based variance approach, 
and the types of guidance documents needed by EPA for site-specific 
risk modeling. (VI. F.)
--We also seek comments on whether this approval would be preferred 
over the proposed conditional exemption. (VI. F.)
--We are soliciting comments on whether we need to consider, as a 
condition for exemption, groundwater monitoring for chemical releases. 
(VI. G.)
--We are requesting groundwater monitoring data from LLRWDFs. (VI. G.)
--We request comment on whether for any reason under this conditional 
exemption, we should require LLRWDFs to provide RCRA-like financial 
assurance for cleanup of RCRA hazardous constituents. (VI. G.)

XII. Supporting Documents

    1. EPA--Consent Decree. HWIR Settlement Agreement, April 11, 
1997.
    2. EPA--Side-bar letter to EEI/USWAG dated April 7, 1997.
    3. ``Review of Waste Management Practices and Compliance History 
at Nuclear Power Plants and Other Entities that Generate Low-Level 
Mixed Waste.'' April 12, 1999.
    4. ``Comparison of the EPA's RCRA Requirements and the NRC's 
Licensing Requirements for the On-site Treatment (In Tanks and 
Containers) and Storage of Low-Level Mixed Wastes at Nuclear 
Facilities'', September 30,1999.
    5. Comment Summary Document--Approach to Reinventing Regulations 
of Storing Mixed Low-Level Radioactive Waste; Advance Notice of 
Proposed Rulemaking (ANPR), September 21,1999.
    6. Report to Utility Solid Waste Activities Group and Utility 
Nuclear Waste Management Group on Comparative Assessment of the 
Environmental Protection Agency's Regulations for Hazardous Waste 
Tank Systems (40 CFR part 265, Subpart J) and Comparable Nuclear 
Regulatory Commission Requirements, July 1988.
    7. Technical Evaluation on Document for the Disposal of Mixed 
Waste at Low-Level Radioactive Waste Disposal Facilities, Draft 
Technical Background Document, July1999.
    8. National Profile on Commercially Generated Low-Level 
Radioactive Mixed Waste, NUREG/CR-5938, December 1992.
    9. Meeting Notes for EPA Meeting with Low-Level Radioactive 
Waste Disposal Facilities, December 7, 1998.
    10. RCRA Hazardous Constituents and Waste Codes Associated with 
Mixed Waste, December 1997.
    11. Joint State/EPA Workshop on Mixed Waste Rulemaking, October 
7-9, 1998, Meeting Summary.
    12. Comparison of NRC and EPA's Waste Tracking and Related 
Record Keeping Requirements, July 1999.
    13. Technical Alternatives Considered for Evaluating 
Protectiveness of Low-Level Waste Disposal Facilities, July 21, 
1999.
    14. Regulatory Impact Analysis: Relief from Regulatory 
Requirements for Storage and Disposal of Mixed Waste, July 1999.
    15. Summary of Public Comments on ``Contingent Management of 
Mixed Waste'' Submitted in Response to the 1995 HWIR Proposal, July 
1999.
    16. The Management of Mixed Low-Level Radioactive Waste in the 
Nuclear Power Industry, NUMARC/NESP-006, Nuclear Management 
Resources Council, Inc., Washington, D.C., January 1990.
    17. Regulatory Impact Analysis: Relief from Regulatory 
Requirements for Storage and Disposal of Mixed Waste, Background 
Documents, August 1999.

List of Subjects in 40 CFR Part 266

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements, Waste treatment and disposal.

    Dated: October 29, 1999.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble 40 CFR part 266 is 
proposed to be amended as follows:

PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES 
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES

    1. The authority citation for part 266 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921,6922, 6924, 6926, 6927, 
and 6934.

    2. Part 266 is amended by adding subpart N to read as follows:

Subpart N--Conditional Exemption for Low-Level Mixed Waste Storage, 
Treatment, Transportation and Disposal

Terms

Sec.
266.210  What special definitions apply to this subpart?

Storage Conditional Exemption and Eligibility

266.220  What does a conditional exemption for stored mixed waste 
do?

[[Page 63498]]

266.225  What stored mixed wastes are eligible?
266.230  What must you do to qualify for a storage exemption?

Treatment

266.235  What waste treatment does this exemption allow?

Loss of Conditional Exemption

266.240  How could you lose your conditional exemption?
266.245  If you lose the exemption, can it be reclaimed?

Record Keeping and Reentry Into RCRA

266.250  What records must you keep besides those required by your 
NRC or Agreement State license?
266.255  When is your low-level mixed waste no longer eligible for 
the Storage Conditional Exemption?

Transportation and Disposal Conditional Exemption

266.305  What does the Transportation and Disposal Conditional 
Exemption do?
266.310  Is your waste eligible for the Transportation and Disposal 
Conditional Exemption?
266.315  What are the conditions you must meet?

Treatment Standard for Disposal

266.320  What treatment standard must your waste, either as-
generated or treated, meet?

Notification, Transportation, and Manifest

266.325  Before shipping exempt waste, whom must you notify?
266.330  How must you notify them?
266.335  Must you wait for any approvals?
266.340  What if the information in your notification changes?
266.345  What are the transportation and manifest conditions you 
must meet?
266.350  When does the exemption take effect?

Disposal Facility

266.355  Where must you dispose of exempt waste to keep this 
exemption?
266.360  Must your waste be containerized before disposal at the 
LLRWDF to keep this exemption?

Record Keeping

266.365  What records must you keep at your facility and for how 
long?
266.370  When must you make records available?

Loss of Conditional Exemption

266.375  How will your RCRA program agency verify your 
Transportation and Disposal Conditional Exemption?
266.380  How could you lose your Transportation and Disposal 
Conditional Exemption?
266.385  If you lose the Transportation and Disposal Conditional 
Exemption can it be reclaimed?

Subpart N--Conditional Exemption for Low-Level Mixed Waste Storage 
and Disposal

Terms


Sec. 266.210  What special 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 source, special nuclear, or byproduct material in 
quantities not sufficient to form a critical mass.
    Eligible NARM means NARM that meets the acceptance criteria of a 
LLRWDF licensed by NRC or an Agreement State in accordance with 10 CFR 
part 61 and is contaminated by hazardous waste, and therefore, is 
eligible for the transportation and disposal conditional exemption.
    Facility as defined in 40 CFR 260.10.
    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 on land in a RCRA hazardous waste disposal 
landfill.
    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 low-Level radioactive waste 
containing a RCRA hazardous waste component.
    Low-Level radioactive waste (LLW) is a radioactive waste containing 
source, special nuclear, or by-product material which is not classified 
as high-level radioactive waste, transuranic waste, spent nuclear fuel, 
byproduct material as defined in section 11(e)(2) of the Atomic Energy 
Act or NARM. (See also NRC definition of ``waste'' at 10 CFR 61.2)
    Low-Level Radioactive Waste Disposal Facility (LLRWDF) means a 
disposal facility licensed by the NRC or an Agreement State for the 
disposal of low-Level waste.
    Mixed Waste means a waste that contains both RCRA hazardous waste 
and source, special nuclear, or by-product material subject to the 
Atomic Energy Act of 1954, as amended.
    Mixed Waste Treatment Facility means a waste treatment facility 
permitted by EPA or an Authorized State to treat hazardous waste and 
licensed by the NRC or an Agreement State to manage radioactive waste.
    Naturally Occurring and/or Accelerator-produced Radioactive 
Material (NARM) means radioactive materials not covered under the AEA 
that are naturally occurring or produced by an accelerator. The 
naturally occurring radioactive material (NORM) is defined below. NARM 
is regulated by the States under State law, or by DOE under DOE Orders.
    Naturally Occurring Radioactive Material (NORM), a subset of NARM, 
refers to materials not covered under the AEA whose radioactivity has 
been enhanced usually by mineral extraction or processing activities.
    NRC means the Nuclear Regulatory Commission. or its duly authorized 
representative (for example, an NRC Agreement State that regulates 
management of low-Level waste).
    RCRA program agency means EPA, or the state agency authorized to 
implement the RCRA program.
    We, within this subpart, means the EPA, or the EPA Regional Office.
    You means a generator, treater, or other handler of low-level mixed 
waste except for the storage exemption provisions in Sec. 266.220-
266.255 where it means only a generator.

Storage Conditional Exemption and Eligibility


Sec. 266.220  What does a conditional exemption for stored mixed waste 
do?

    A conditional exemption exempts certain low-Level mixed waste from 
the regulatory definition of hazardous waste in Sec. 261.3 during 
storage if you, as the generator, have a storage unit and waste which 
meet specified conditions in Secs. 266.225 through 266.255.


Sec. 266.225  What stored mixed wastes are eligible?

    Low-Level mixed waste defined in Sec. 266.210 is eligible for a 
conditional exemption if managed subject to NRC or Agreement State 
regulations, and if it is:
    (a) Generated at your facility (Mixed waste generated at another 
facility and shipped to your facility for storage or treatment requires 
a storage permit and is ineligible for the storage exemption.);
    (b) Stored on-site in a tank or container meeting the requirements 
of your NRC or Agreement State license for storing low-Level waste; and
    (c) Stored in compliance with chemical compatibility requirements 
of a tank or container (See Sec. 264.177, or

[[Page 63499]]

Sec. 264.199 of this chapter), or (Sec. 265.177, or Sec. 265.199 of 
this chapter).


Sec. 266.230  What must you do to qualify for a storage exemption?

    You must meet all the following conditions.
    (a) Have a valid NRC or Agreement State license.
    (b) Comply with the requirements of your license for storing low-
Level mixed waste.
    (c) Meet the eligibility requirements of Sec. 266.225.
    (d) Notify us (EPA) by certified mail, return receipt requested, 
that you claim a conditional exemption for a storage unit containing 
low-Level mixed waste. 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 LLMW for which you 
claim a conditional exemption.
    (e) Certify that facility personnel who manage stored mixed waste 
have been trained in a manner that ensures that the low-Level mixed 
waste is safely managed and includes training in chemical waste 
management and hazardous materials incidence response as outlined in 
the personnel training standards found in 40 CFR 265.16(a)(3).
    (f) Inventory your stored low-level mixed waste at least annually; 
inspect it at least quarterly for compliance with the other conditions 
of the paragraph; update your inventory records of conditionally exempt 
LLMW quarterly; and maintain records for three years after the waste is 
sent for disposal, or in accordance with NRC requirements, whichever is 
longer.
    (g) Maintain an accurate emergency plan and provide it to all local 
authorities who may have to respond to an emergency. 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. 
(See 40 CFR part 265, subpart D.)

Treatment


Sec. 266.235  What waste treatment does this exemption allow?

    Allowable treatment of your low-Level mixed waste includes only on-
site treatment within a tank or container covered by the provisions of 
your NRC or Agreement State license. The treatment may include 
solidification, neutralization, or other forms of stabilization, but 
excludes thermal treatment, such as incineration.

Loss of Conditional Exemption


Sec. 266.240  How could you lose your conditional exemption?

    (a) The conditional exemption applies only while all the conditions 
are met. (See Sec. 266.230)
    (b) You automatically lose your exemption for failure to meet any 
of the conditions. (See Sec. 266.230).
    (c) You must report to us and the NRC or Agreement State in writing 
of any failure to meet a condition within 30 days of learning of the 
failure. If the failure may endanger human health or the environment, 
you must also notify us, EPA or RCRA program agency orally within 24 
hours. Failures that 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 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 
contingency plan.


Sec. 266.245  If you lose the exemption, can it be reclaimed?

    (a) You may reclaim your exemption if:
    (1) You again meet the requirements of Sec. 266.230; and
    (2) You send us, the RCRA program agency, a notice that you are 
reclaiming the exemption. The notice 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 and that your waste again meets all the 
conditions as of the date you specify.
    (iii) Demonstrate that each failure is not likely to recur because 
of specific steps (list them) that you have implemented in your LLMW 
compliance activities.
    (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 such as: you have 
failed to correct the problem; you explained the circumstances of the 
violation unsatisfactorily; or you failed to show that the violation is 
unlikely to recur. In reviewing a reclaimed conditional exemption under 
this section, we may add requirements to the exemption to ensure and 
document proper storage to protect human health or the environment.

Record Keeping and Reentry Into RCRA


Sec. 266.250  What records must you keep besides those required by your 
NRC or Agreement State license?

    You must keep your initial notification records and records of your 
LLMW inventories and inspections. At a minimum you must inventory waste 
annually, inspect quarterly, and update your records of conditionally 
exempt LLMW at least quarterly. You must maintain storage records for 
three years after the waste is sent for disposal, or in accordance with 
NRC requirements under 10 CFR part 20, whichever is longer.


Sec. 266.255  When is your low-Level mixed waste no longer eligible for 
the Storage Conditional Exemption?

    (a) When your LLMW has met the requirements of your NRC or 
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. At that point your waste is subject to hazardous waste 
regulation as ``newly generated'' hazardous waste under the relevant 
sections of 40 CFR Parts 260-271.
    (b) When your waste is transported off-site for any reason other 
than to a LLRWDF under the Disposal Conditional Exemption at 
Sec. 266.305, it is no longer eligible for the Storage Conditional 
Exemption.

Transportation and Disposal Conditional Exemption


Sec. 266.305  What does the Transportation and Disposal Conditional 
Exemption do?

    The conditional exemption for transportation and disposal gives 
you--the mixed waste generator, treater, or other handler--an alternate 
way to manage your low-Level mixed waste. If this waste meets Land 
Disposal Restrictions treatment standards, and is subject to NRC or 
Agreement State's transportation, manifest and disposal regulations, it 
will be exempted from RCRA Subtitle C hazardous waste manifest, 
transportation and disposal regulations. Currently, low-Level mixed 
waste meeting LDR treatment standards must be managed in accordance 
with both NRC or Agreement State's and RCRA Subtitle C's 
transportation, manifest and disposal regulations. To obtain and keep 
the Transportation and Disposal Conditional Exemption, you must meet 
all conditions under the Transportation and Disposal Conditional 
Exemption at all times.

[[Page 63500]]

Sec. 266.310  Is your waste eligible for the Transportation and 
Disposal Conditional Exemption?

    To be eligible for this exemption, your waste must be:
    (a) A low-Level radioactive waste, or NARM waste as defined in 
Sec. 266.210 which meets the acceptance criteria of a LLRWDF licensed 
by the NRC or an Agreement State in accordance with 10 CFR part 61; and
    (b) A RCRA hazardous waste as defined in 40 CFR 261.3.


Sec. 266.315  What are the conditions you must meet?

    You must do the following to obtain and keep the Transportation and 
Disposal Conditional Exemption:
    (a) Meet and continue to meet LDR treatment standards per 
Sec. 266.320.
    (b) Have received written confirmation that you have notified the 
designated regulatory agencies of the exemption per Sec. 266.325(a), 
Sec. 266.330(a), and Sec. 266.340.
    (c) Even if you self-regulate under the Atomic Energy Act, you must 
manifest and transport the waste according to NRC regulations per 
Sec. 266.345.
    (d) Ensure the exempted waste is containerized per Sec. 266.360, 
and disposed at a designated LLRWDF per Sec. 266.355.
    (e) Keep and submit records of the exemption as required under 
Sec. 266.365, and Sec. 266.370.

Treatment Standard For Disposal


Sec. 266.320  What treatment standard must your waste, either as-
generated or treated, meet?

    Your LLMW or eligible NARM must meet, or be treated to meet, LDR 
treatment standards specified in Secs. 268.40-268.49 of this chapter. 
The waste must also meet RCRA definition of non-wastewater as specified 
in 40 CFR 268.2(d) of this chapter prior to disposal.

Notification, Transportation and Manifest


Sec. 266.325  Before shipping exempt waste, whom must you notify?

    (a) You must notify the following parties, in writing, every time 
you intend to claim an exemption for a newly generated waste stream (a 
waste stream whose RCRA hazardous waste codes differ from those of the 
previously claimed waste streams):
    (1) The RCRA program agency (EPA or state) regulating your low-
level mixed waste activities;
    (2) The RCRA program agency (EPA or state) in the state where the 
LLRWDF is located; and
    (3) The NRC or Agreement State regulating the LLRWDF where the 
waste will be disposed.
    (b) You must also notify the LLRWDF receiving your waste, in 
writing, every time you plan to ship any exempted waste to the LLRWDF.


Sec. 266.330  How must you notify them?

    (a) You must notify all parties in Sec. 266.325(a) by sending your 
notification by certified mail with return receipt requested. A 
``return receipt'' is any document that demonstrates the receipt of the 
notification package by the regulatory agencies. It can be the receipt 
of delivery by the U.S. Postal Service, or a mail delivering service. 
Include at least the following in the notice:
    (1) A dated cover letter signed by an officer or authorized 
employee that claims the exemption and includes the following:
    (i) Your facility's name, address, and RCRA ID number.
    (ii) The RCRA hazardous waste codes.
    (2) A brief, general description of the process or operation that 
generated the waste.
    (3) The quantity of each waste stream you will ship for disposal 
and an estimate of the average monthly, maximum monthly, average 
annual, and maximum annual quantities of the waste for which you are 
claiming an exemption.
    (4) Name, address, and NRC or Agreement State license number of the 
LLRWDF that has agreed to receive your waste.
    (5) A certification for compliance with LDR treatment standards as 
follows:
    (i) A generator at Sec. 268.7(a)(3)(i) of this chapter.
    (ii) Treatment facilities at Sec. 268.7(b)(4) of this chapter.
    (6) A certification signed by you, or your authorized 
representative, that the information contained in the notification 
package is true, accurate, and complete.
    (b) You must notify the LLRWDF by certified mail with return 
receipt requested. Include at least the following:
    (1) The cover letter described in Sec. 266.330(a)(1).
    (2) The shipment number that will appear on block number 5 of NRC 
or Agreement State's Uniform Low-Level Radioactive Waste Manifest Form 
540.


Sec. 266.335  Must you wait for any approvals?

    Your exemption is self-implementing. The parties you notify needn't 
review your notification or approve the exemption. You may ship waste 
that meets LDR treatment standards to the LLRWDF once certified mail 
receipts have come back to you from all parties required to be 
notified.


Sec. 266.340  What if the information in your notification changes?

    (a) Submit any change in any information submitted under 
Sec. 266.330 to all parties you notified initially.
    (b) Do it within 10 business days of first learning of a change.


Sec. 266.345  What are the transportation and manifest conditions you 
must meet?

    Even if you self-regulate under the authority of the Atomic Energy 
Act, you must meet the NRC or Agreement State transportation 
requirements in 10 CFR 71.5, and the NRC or Agreement State manifest 
requirements in 10 CFR 20.2006. Your exempted waste is not subject to 
the RCRA hazardous-waste transportation and manifest requirements.


Sec. 266.350  When does the exemption take effect?

    Your waste becomes exempt from RCRA Subtitle C manifest, 
transportation and disposal once you do the following:
    (a) Your waste meets LDR treatment standards;
    (b) You have received return receipts that you have notified the 
specified regulatory agencies;
    (c) You have manifested the waste according to NRC or Agreement 
State manifest regulation at 10 CFR 20.2006; and
    (d) You have placed the waste on a transportation vehicle bound for 
an LLRWDF licensed by NRC or an Agreement State.

Disposal Conditions


Sec. 266.355  Where must you dispose of exempted waste to keep this 
exemption?

    You must dispose of your RCRA-exempted waste in a LLRWDF licensed 
by NRC or Agreement State under 10 CFR part 61.


Sec. 266.360  Must your waste be containerized before disposal at the 
LLRWDF to keep this exemption?

    You must arrange to have your exempted waste containerized before 
it is placed in a disposal cell. The container can not be cardboard or 
fiberboard boxes.

Record Keeping


Sec. 266.365  What records must you keep at your facility and for how 
long?

    You must keep records as follows:
    (a) You must continue to follow existing applicable record keeping 
requirements under Secs. 264.73 and 268.7 of this chapter in order to 
demonstrate

[[Page 63501]]

that your waste has met LDR treatment standards prior to your claiming 
the exemption.
    (b) You must keep a copy of all notifications required under 
Sec. 266.330, sent to parties listed in Sec. 266.325 of this subpart 
for as long as the Mixed Waste exemption continues to be active, and 
for the three years that follow.
    (c) You must keep a copy of return receipts of the notification 
package from all those parties for as long as the Mixed Waste exemption 
continues to be active, and for the three years that follow.
    (d) You must keep a copy of all of NRC or Agreement State's 
radioactive waste manifests which included a shipment of the exempted 
waste, and you must attach the accompanying cover letter as described 
in Sec. 266.330(a)(1) to it. Keep these records until closure of the 
disposal facility, or closure of your facility if it happens before the 
disposal facility closure.
    (e) You must keep a copy of any notice to any regulatory agency 
that tells of any change to your initial notification for as long as 
the Mixed Waste exemption continues to be active, and for the three 
years that follow.
    (f) For generators who self-regulate under the Atomic Energy Act, 
in addition to the records specified in Sec. 266.365(a) through (e), 
you must keep all other documents related to tracking the waste as 
required under 10 CFR 20.2006.


Sec. 266.370  When must you make records available?

    Make all records relative to your exemption available to your RCRA 
program agency in these cases:
    (a) Immediately during an on-site inspection.
    (b) Within five business days when and as requested by EPA.

Loss of Conditional Exemption


Sec. 266.375  How will your RCRA program agency verify your 
Transportation and Disposal Conditional Exemption?

    Your RCRA program agency may inspect your facility, audit your 
records regarding the exemption, obtain samples and perform any other 
activities authorized under RCRA including under section 3007, 42 
U.S.C. 6927 or other information gathering authority. In an enforcement 
action, the burden of proof to establish compliance with this subpart 
falls on you. Nothing in Subpart N shall be interpreted or applied to 
restrict any inspection or enforcement authority under RCRA, 42 U.S.C. 
6901 et seq. Notwithstanding any other provisions of these regulations, 
actions may also be brought pursuant to Section 7003 of RCRA, 42 U.S.C. 
6973, relating to imminent and substantial endangerment.


Sec. 266.380  How could you lose your Transportation and Disposal 
Conditional Exemption?

    (a) If you fail to satisfy any conditions listed under Sec. 266.315 
you will lose your manifest, transportation, and disposal exemption. 
When you lose your exemption, you must immediately manage your waste as 
RCRA hazardous waste and you may be subject to enforcement action and 
fines and penalty under RCRA.
    (b) If you fail to satisfy the requirements listed under 
Sec. 266.325(b) and/or Sec. 266.330(b), you may be subject to 
enforcement action and fines and penalty under RCRA. However, you will 
not lose your manifest, transportation, and disposal exemptions.
    (c) If you fail to satisfy any of the conditions and requirements 
under the Transportation and Disposal Conditional Exemption you must 
notify all parties listed in Sec. 266.325(a) in writing, with return 
receipt requested, of the violation within 30 days of learning of the 
violation.


Sec. 266.385  If you lose the Transportation and Disposal Conditional 
Exemption can it be reclaimed?

    (a) You may reclaim your exemption if:
    (1) You again meet the requirements of Sec. 266.315; and
    (2) You send us, the RCRA program agency, a notice that you are 
reclaiming the exemption. The notice 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 and that your waste again meets all the 
conditions as of the date you specify.
    (iii) Demonstrate that each failure is not likely to recur because 
of specific steps (list them) that you have implemented in your LLMW 
compliance activities.
    (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 such as: you have 
failed to correct the problem; you explained the circumstances of the 
violation unsatisfactorily; or you failed to show that the violation is 
unlikely to recur. In reviewing a reclaimed conditional exemption under 
this section, we may add requirements to the exemption to ensure and 
document proper waste management to protect human health or the 
environment.

[FR Doc. 99-29068 Filed 11-18-99; 8:45 am]
BILLING CODE 6560-50-p