[Federal Register Volume 66, Number 95 (Wednesday, May 16, 2001)]
[Rules and Regulations]
[Pages 27218-27266]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11408]



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Part II





Environmental Protection Agency





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40 CFR Part 266



Storage, Treatment, Transportation, and Disposal of Mixed Wastes; Final 
Rule

40 CFR Parts 261 and 268



Hazardous Waste Identification Rule (HWIR); Revisions to Mixture and 
Derived-From Rules; Final Rule

  Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 266

[FRL-6975-1]
RIN 2050-AE45


Storage, Treatment, Transportation, and Disposal of Mixed Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is today finalizing 
its proposal to provide increased flexibility to facilities that manage 
low-level mixed waste (LLMW) and technologically enhanced naturally 
occurring and/or accelerator-produced radioactive material (NARM) 
containing hazardous waste. The final rule reduces dual regulation of 
LLMW, which is subject to the Resource Conservation and Recovery Act 
(RCRA) and to the Atomic Energy Act (AEA). This final rule 
conditionally exempts from RCRA hazardous waste management low-level 
mixed wastes during storage and treatment. The storage and treatment 
exemption in today's rule requires the use of tanks or containers to 
store or treat the waste and applies only to low-level mixed waste that 
meets the specified conditions and is generated under a single Nuclear 
Regulatory Commission (NRC) or NRC Agreement State license.
    Today's rule also exempts LLMW and hazardous NARM waste from RCRA 
manifest, transportation, and disposal requirements when specified 
conditions are met. Under this conditional exemption, the waste remains 
subject to manifest, transport, and disposal requirements under the NRC 
(or NRC Agreement State) regulations for low-level radioactive waste 
(LLW) or eligible NARM.

DATES: This final rule is effective November 13, 2001.

ADDRESSES: Supporting materials are available for viewing in the RCRA 
Information Center (RIC) located at Crystal Gateway One, First Floor, 
1235 Jefferson Davis Highway, Arlington, Virginia. The Docket 
Identification Number is F-2001-ML2F-FFFFF. The RIC is open 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 docket 
at no charge. Additional copies cost $0.15/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, contact the 
RCRA Hotline at (800) 424-9346 (toll free), or TDD (800) 553-7672 
(hearing impaired). In the Washington, DC metropolitan area call (703) 
412-9810 or TDD (703) 412-3323 (hearing impaired). For information on 
this rule, contact Nancy Hunt at (703) 308-8762 or Chris Rhyne at (703) 
308-8658. They are in the Office of Solid Waste (5303W), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460.

SUPPLEMENTARY INFORMATION: Use this address to access the rule 
electronically on the Internet: http://www.epa.gov/epaoswer/hazwaste/radio/:
    The official record for this rule will be kept in paper form. 
Accordingly, EPA transferred all comments received electronically into 
paper form and placed them in the official record, which also includes 
all comments submitted directly in writing. The official record is the 
record maintained at the RCRA Docket Information Center. See the 
ADDRESSES section above.
    EPA responses to comments on the March 1, 1999 Advance Notice of 
Proposed Rulemaking (64 FR 10063) and the November 19, 1999 Storage, 
Treatment, Transportation, and Disposal of Mixed Waste; Proposed Rule 
(64 FR 63464) are in a response to comments document placed in the 
official record for this rulemaking.

Table of Contents

I. References
    A. Acronyms used in this preamble
    B. Definition of terms used in the preamble
    C. Who is potentially affected by this rule?
    D. What is the legal authority for today's final rule?
II. Summary of today's action
    A. How does this rule affect the storage and treatment of LLMW?
    B. How does this rule affect transportation and disposal of LLMW 
and Eligible NARM?
III. Why are we issuing this rule?
    A. Response to dual regulation concerns and inadequate capacity
    B. Response to HWIR consent decree
    C. Response to petition from USWAG and concerns of other mixed 
waste generators
IV. Precedent for regulatory flexibility
    A. Military Munitions Rule
    B. Applying the conditional exemption concept to mixed waste
    1. Evaluation of NRC storage and treatment requirements
    2. Review of NRC disposal requirements
V. How are the final storage and treatment provisions different from 
the proposal?
    A. Streamlined language
    B. Eligibility revisions
    C. Clarifications related to inventory and treatment
    D. Recordkeeping requirements
    E. Implementation
VI. Discussion and response to major comments on the storage and 
treatment conditional exemption
    A. Storage and treatment--general discussion of provisions
    1. What wastes are eligible for the storage and treatment 
conditional exemption? (Sec. 266.225)
    a. Eligibility provisions and changes from proposed regulatory 
language
    i. Waste is a LLMW (Excludes NARM)
    ii. Waste is generated and managed by you under a single NRC 
license
    b. Differences from proposed eligibility for storage and 
treatment exemption
    c. Treatment and storage facilities managing LLMW from other 
generators
    2. What conditions must you meet to qualify for and maintain a 
storage and treatment exemption? (Sec. 266.230)
    a. Initial condition to qualify--you must notify the Director of 
your claim.
    i. Cross reference to proposed rule
    ii. Comments we received on storage and treatment notification
    b. Conditions to maintain the storage and treatment exemption
    i. Store Waste in a tank or container in compliance with storage 
requirements of your NRC or NRC agreement state license.
    ii. Store waste in compliance with chemical compatibility 
requirements.
    iii. Certify that personnel are trained in hazardous waste 
management.
    iv. Inventory and inspect your waste.
    v. Maintain an accurate emergency plan.
    c. Modifications to proposed storage and treatment conditions
    3. Treatment (Sec. 266.235)
    a. Treatment clarification
    b. Comments received on treatment
    i. EPA should reconsider allowing treatment
    ii. EPA should broaden the scope of treatment in the storage and 
treatment exemption
    4. Implementation of the storage and treatment conditional 
exemption
    a. Self-implementation
    b. Loss of the storage and treatment conditional exemption 
(Sec. 266.240)
    c. If you lose your storage and treatment exemption can it be 
reclaimed? (Sec. 266.245)
    d. Recordkeeping requirements for storage and treatment 
exemption (Sec. 266.250)
    e. Return to RCRA of LLMW no longer eligible for the storage and 
treatment exemption (Sec. 266.255)
    i. How does the storage and treatment exemption facilitate 
decay-in-storage?
    ii. Change from proposed language
    iii. Comments received on storage time limits and decay-in-
storage
    iv. Effect on biennial reporting
    f. Enforcement and enforcement policy
    g. Storage unit closure
    B. Discussion and response to comments on storage background 
studies
    1. Review of NRC licensing requirements
    2. Research on compliance records of NRC and NRC Agreement State 
licensees

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    3. Comparison of regulatory and management requirements of EPA 
and NRC
    4. Conclusions based on our studies
    5. Comments received on our studies
VII. How are the final transportation and disposal provisions 
different from the proposal?
VIII. Discussion and response to major comments on the 
transportation and disposal conditional exemption rule
    A. What is the basis of the transportation and disposal 
conditional exemption?
    B. What wastes are eligible for the transportation and disposal 
conditional exemption?
    C. What conditions must you meet to qualify for and maintain the 
transportation and disposal conditional exemption?
    1. Land Disposal Restriction treatment standards
    2. Manifest and transportation
    a. If you are subject to NRC or NRC Agreement State regulation
    b. If you are not directly subject to NRC or NRC Agreement State 
regulation
    3. Container requirement
    4. Waste disposal designation
    D. What other provisions must you meet?
    1. Notification
    2. Recordkeeping
E. When does the transportation and disposal exemption take effect?
    F. Implementation
    1. How will the transportation and disposal conditional 
exemption be implemented?
    2. Loss of transportation and disposal conditional exemption
    3. Reclaiming the transportation and disposal conditional 
exemption
    G. How did we conduct our technical assessment for the disposal 
of treated waste at low-level radioactive waste disposal facilities?
    1. Synergistic Effects
    2. Groundwater monitoring
    3. Site-specific variance
    H. Why is financial assurance beyond 10 CFR 61 not necessary?
IX. 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?
X. State Authorization
XI. Relationship with other RCRA and Environmental Programs
    A. What is the relationship of this rule with other RCRA 
regulatory programs?
    1. Does this rule change how you determine if a waste is 
hazardous?
    2. Can LLMW or Eligible NARM be a nonhazardous waste under this 
rule?
    3. How does the LLMW Conditional Exemption differ from delisting 
under 40 CFR 260.22?
    4. Will my waste analysis plan for my RCRA-permitted TSDF 
change?
    5. Will the final 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 today's rule?
    2. How might Clean Air Act regulations be affected?
    3. How might Clean Water Act regulations be affected?
XII. Effective Date
XIII. 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 13175: 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
    J. Congressional Review Act
XIV. Supporting Documents

I. References

A. Acronyms Used in This Preamble

AEA--Atomic Energy Act of 1954, as amended
ALARA--As Low As Reasonably Achievable
ANPRM--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-Technologically Enhanced 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
OSWER--Office of Solid Waste and Emergency Response
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 Regulatory 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

B. 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 byproduct, source, or special nuclear material in 
quantities not sufficient to form a critical mass.
    ANPRM (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.
    Certified Delivery means certified mail with return receipt 
requested, or equivalent courier service or other means that provides 
the sender with a receipt confirming delivery.
    Director refers to the definition in 40 CFR 270.2.
    ``Eligible Naturally Occurring and/or Accelerator-produced 
Radioactive Material (NARM)'' is NARM that is eligible for the 
Transportation and Disposal Conditional Exemption. It is a NARM waste 
that contains RCRA hazardous waste, meets the waste acceptance criteria 
of, and is allowed by State NARM regulations to be disposed of at a 
LLRWDF licensed in accordance with 10 CFR part 61 or NRC Agreement 
State equivalent regulations.
    Exempted waste means a waste that meets the eligibility criteria in 
Sec. 266.225 and meets all of the conditions in Sec. 266.230, or meets 
the eligibility criteria in Sec. 266.310 and complies with all of the 
conditions in Sec. 266.315. Such waste is conditionally exempted from 
the regulatory definition of hazardous waste described in 40 CFR 261.3.
    Generator refers to the definition in 40 CFR 260.10.

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    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 
has been in storage beyond RCRA accumulation time periods in 40 CFR 
262.34 because appropriate treatment technologies have not been 
developed, or treatment and disposal capacity has not been available.
    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) means a waste that contains both low-
level radioactive waste and RCRA hazardous waste.
    Low-Level Radioactive Waste (LLW) is a radioactive waste which 
contains source, special nuclear, or byproduct material, and which is 
not classified as high-level radioactive waste, transuranic waste, 
spent nuclear fuel, or byproduct material as defined in section11e.(2) 
of the Atomic Energy Act. (See also NRC definition of ``waste'' at 10 
CFR 61.2)
    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 byproduct material subject to the 
Atomic Energy Act of 1954, as amended.
    Naturally Occurring and/or Accelerator-produced Radioactive 
Material (NARM) means radioactive materials that (1) Are naturally 
occurring and are not source, special nuclear, or byproduct materials 
(as defined by the AEA) or (2) are produced by an accelerator. NARM is 
regulated by the States under State law, or by DOE (as authorized by 
the AEA) under DOE orders.
    NRC or NRC Agreement State license means a license issued by the 
Nuclear Regulatory Commission or an NRC 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.
    Tie-down conditions include NRC guidance documents and policies 
concerning storage and treatment of LLW which become part of the NRC or 
NRC Agreement State radioactive materials license by reference.
    We or us within this preamble means the EPA.
    You means a generator, treater, or other handler of low-level mixed 
waste or Eligible NARM.

C. Who Is Potentially Affected by This Rule?

    The conditional exemption for low-level mixed waste (LLMW) storage 
and treatment applies to any mixed waste generator that has an NRC or 
NRC Agreement State license to possess radioactive material or to 
operate a nuclear reactor, so long as the waste is eligible and the 
generator can satisfy the conditions set forth in today's rule.
    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
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                Category                      Examples of facilities
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Nuclear Utilities......................  Firms that generate electricity
                                          using nuclear fuel as the
                                          source of energy and that are
                                          licensed by the NRC.
Universities/Academic Institutions.....  Academic institutions at all
                                          levels that are licensed by
                                          NRC, or an NRC 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 NRC
                                          Agreement State to use
                                          radionuclides for health care
                                          purposes.
Industrial Establishments..............  Private companies and
                                          institutions, including
                                          pharmaceutical companies, and
                                          research and development
                                          institutions that are licensed
                                          by NRC or an NRC Agreement
                                          State to use radionuclides.
Government Facilities..................  Facilities, installations and
                                          laboratories operated by State
                                          Agencies, and by some Federal
                                          Agencies, including, but not
                                          limited to, the National
                                          Institutes of Health, the
                                          National Institute of
                                          Standards and Technology, the
                                          Veterans Administration and
                                          the Department of Defense
                                          (except the Naval Nuclear
                                          Propulsion Program).
Disposal facilities....................  Low-level radioactive waste
                                          disposal facilities licensed
                                          under 10 CFR part 61or by an
                                          NRC Agreement State.
------------------------------------------------------------------------

    The preceding table is not intended to be exhaustive, but rather to 
provide examples of facilities likely to be affected by this rule. To 
determine whether you are affected by this regulatory action, you 
should carefully examine the applicability criteria in 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.

D. What Is the Legal Authority for Today's Final Rule?

    The statutory basis for this rule is in sections 1006, 2002(a), 
3001-3009 and 3013 of the Solid Waste Disposal Act of 1970, as amended 
by the Resource Conservation and Recovery Act of 1976 (RCRA), the 
Hazardous and Solid Waste Amendments of 1984 (HSWA), and the Federal 
Facility Compliance Act of 1992 (FFCA), 42 U.S.C. 6905, 6912(a), 6921-
6929 and 6934.

II. Summary of Today's Action

    In today's rule we are promulgating a conditional exemption for the 
storage, treatment, transportation, and disposal of low-level mixed 
waste (LLMW), and Eligible NARM where specified. As a

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waste generator and handler who meets certain conditions specified in 
40 CFR 266.230 or 266.315, (a) your LLMW could be exempt from most RCRA 
Subtitle C storage and treatment regulations, and (b) your LLMW and 
Eligible NARM could be exempt from most RCRA Subtitle C manifesting, 
transportation, and disposal regulations. Thus, LLMW, and Eligible NARM 
where specified, may be conditionally exempted from most RCRA Subtitle 
C requirements through much of the waste management process.
    To claim a conditional exemption you must notify the regulatory 
agencies specified that you meet the conditions. However, if 
information you provide on your notification is incomplete or 
inaccurate, your claim for a conditional exemption is nullified 
subjecting your waste to RCRA Subtitle C regulation.

A. How Does This Rule Affect the Storage and Treatment of LLMW?

    Our rule will allow qualified generators of LLMW to claim a 
conditional exemption from the regulatory RCRA definition of hazardous 
waste for mixed wastes stored and treated by the generator under a 
single NRC or NRC Agreement State license. This conditional exemption 
acknowledges that NRC regulation for low-level waste (LLW) provides 
protective regulation of storage and treatment of mixed waste in tanks 
and containers. This regulatory flexibility applies only to generators 
of low-level mixed waste who are licensed by NRC or an NRC Agreement 
State. Once your LLMW is removed from storage or treatment for 
transportation or disposal, it is subject to RCRA Subtitle C regulation 
unless it qualifies for the transportation and disposal exemption. 
Under this rule, if you fail to meet any of the conditions in 
Sec. 266.230, your LLMW is no longer exempted from the regulatory 
definition of hazardous waste. As a hazardous waste, your LLMW is 
subject to RCRA Subtitle C regulation.

B. How Does This Rule Affect Transportation and Disposal of LLMW and 
Eligible NARM?

    Today's rule will allow generators of LLMW and Eligible NARM to 
claim a conditional exemption from the RCRA regulatory definition of 
hazardous waste for the manifesting, transportation, and disposal of 
these wastes. (Throughout this document when we refer to the 
conditional exemption for manifest, transportation and disposal of 
LLMW, we also mean Eligible NARM.) If your wastes meet the eligibility 
requirements and if you meet the specified conditions for the 
transportation and disposal exemption, then you may manage your wastes 
as you would solely radioactive wastes. This conditional exemption 
acknowledges the protection provided by NRC and NRC Agreement States 
requirements for the manifest, transportation and disposal of the 
radioactive portion of the eligible waste.

III. Why Are We Issuing This Rule?

A. Response to Dual Regulation Concerns and Inadequate Capacity

    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 by-product material 
component), as implemented by the NRC or NRC Agreement States (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 hazardous component); and State law (for the 
NARM component), as implemented by a State agency designated by State 
law. EPA and NRC recognize that joint oversight of mixed waste has been 
cumbersome, in part because of the different regulatory approaches of 
the agencies, and has complicated safe management and disposal of mixed 
waste. With this rule we are responding to the concerns of mixed waste 
generators regarding the burden and duplication of dual regulation, as 
well as concerns about reducing the radiation exposures of workers 
managing mixed wastes. (See discussion related to decay-in-storage in 
section VI. A. 4. e. i.)
    In addition, mixed waste generators have expressed concerns about 
limited LLMW treatment and disposal options which can put them in 
violation of RCRA. These concerns originated because RCRA section 
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 section 
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 ANPRM, published 
March 1, 1999 in the Federal Register, and information from mixed waste 
generators, we found that treatment technology and disposal capacity 
for certain LLMW are not always available. We also found that, in some 
cases, commercial mixed waste treatment facilities have not been 
willing to accept LLMW for treatment unless there are also disposal 
options. When disposal options do not exist, generators of LLMW store 
the waste beyond a year. Because of limited LLMW disposal capacity, we 
believe it is appropriate to provide safe and legal alternatives for 
the disposal of LLMW.
    We assessed NRC regulations for management of LLW and compared them 
with EPA's regulations for hazardous waste storage, treatment, 
transportation, and disposal. Our review found that given the NRC's 
regulatory controls, human health and environmental protection from 
chemical risks would not be compromised if we deferred to many of the 
NRC low-level radioactive waste management practices. Given NRC waste 
management, we do not believe that the addition of RCRA Subtitle C 
regulation is necessary to protect human health or the environment. 
Through this rule, we are providing regulatory relief intended to 
facilitate the disposal of certain LLMW (such as legacy waste requiring 
long-term storage due to lack of treatment technology and disposal 
capacity), that has been stored on-site by NRC licensees as mixed waste 
subject to both RCRA permitting and NRC licensing requirements.
    Ninety individuals and organizations commented on the proposal. In 
general, utilities, nuclear trade organizations, industry, 
universities, and some States supported the rule; private citizens, 
waste treatment and disposal facilities, environmental groups, and 
other States and universities opposed the rule or expressed concerns. 
We discuss the major comments of both supporting and opposing views by 
topic below.
    In the preamble of the proposal we specifically sought comment on 
dual regulation. (See 64 FR 63469.) Of the 90 total comments, 77 from 
organizations or individuals addressed dual regulation, 61 of which 
expressed support for a conditional exemption of mixed waste. Several 
stated that the exemption would provide important and necessary 
regulatory flexibility for LLMW. Others stated that EPA has developed a 
sound and compelling technical record for both the storage and 
treatment of LLMW, as well as for off-site transportation and disposal 
of

[[Page 27222]]

LLMW and Eligible NARM in qualified low-level radioactive waste 
disposal facilities.
    Our approach for addressing the issue of dual regulation of LLMW 
was opposed in whole or part by 16 commenters. Three commenters felt 
that EPA should establish a Memorandum of Understanding (MOU) with the 
Nuclear Regulatory Commission to transfer regulatory authority for 
mixed waste to NRC and Agreement States. However, an MOU would not 
allow EPA to relinquish jurisdiction over the hazardous portion of 
mixed waste. In addition, these commenters did not suggest how the NRC 
management framework might be changed to provide safer treatment and 
disposal of hazardous wastes. Our regulatory approach provides 
flexibility for mixed waste storage, treatment, transportation and 
disposal which addresses dual regulation concerns, and received the 
support of many generators who have raised the issue of dual regulation 
to us in the past.

B. Response 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 
required 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. (See 
EPA Consent Decree, Ref. 1.) One of the eleven items concerns an 
exemption from RCRA hazardous waste disposal regulations for low-level 
mixed waste generated by nuclear power plants where such waste is also 
subject to regulation by the Nuclear Regulatory Commission. (See Side-
bar letter, Ref. 2.) The consent decree required that the proposal also 
request comment on other regulatory relief for these wastes, if EPA 
finds that any other relief would be appropriate. (See ANPRM for 
further information.) This decree requires that EPA take final action 
on the proposal by April 30, 2001.
    Today's rule provides regulatory relief to LLMW generators and 
other regulatory relief as described in this document. In a separate 
notice, EPA is revising the mixture and derived-from rules. (See Docket 
#F-2001-WHWF-FFFFF.) The revision includes an exemption from the 
mixture and derived-from rule for low-level mixed waste that is managed 
in compliance with the requirements in part 266, subpart N. These two 
final rules satisfy EPA's obligations under the consent decree.

C. Response to Petition From USWAG and Concerns of Other Mixed Waste 
Generators

    The Utility Solid Waste Activities Group (USWAG), a national 
organization of power companies, petitioned the U.S. EPA on January 13, 
1992 to amend 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 ANPRM for 
additional information.) Today's action is our response to the USWAG 
petition.
Policy of Lower Enforcement Priority for Mixed Waste
    Recognizing the limitations of available technology and capacity, 
in 1991 EPA issued a policy on a lower priority for enforcement of the 
storage prohibition contained in 3004(j) of RCRA for certain waste 
streams. (See 56 FR 42730; August 29, 1991.) Section 3004(j) prohibits 
storage of a waste restricted from land disposal (including the 
hazardous component of mixed waste), except for the purposes of the 
accumulation of such quantities of hazardous waste necessary to 
facilitate proper recovery, treatment, or disposal. The lack of 
adequate treatment technology or disposal capacity for some mixed waste 
streams necessitated mixed waste storage in violation of land disposal 
restrictions. 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. Because 
treatment technology or disposal capacity was still unavailable for 
some mixed wastes, we extended this policy in 1994, 1996 and again in 
1998. The policy expires on October 31, 2001. (See 63 FR 59989, 
November 6, 1998.)
    This rulemaking is intended to provide flexibility to generators of 
mixed waste where EPA requirements are to a large extent duplicative of 
performance standards required by the NRC or NRC Agreement States. With 
the promulgation of this rule, EPA is stating its determination that 
facilities that comply with certain criteria can safely store mixed 
waste at NRC licensed facilities. The prohibition for storage in 
3004(j) will not apply to waste that both meets the eligibility 
criteria of, and is stored in accord with the conditions of, this rule. 
Thus, the federal government is providing with this rule a potential 
option for mixed waste generators to store mixed wastes legally. We 
recognize that States are not required to become authorized for this 
rule. States may choose to be more stringent than the federal RCRA 
program. However, since many States have followed EPA's lead on the 
enforcement policy, we anticipate that most states will choose to 
address the storage problem of concern to mixed waste generators by 
adopting this rulemaking.

IV. Precedent for Regulatory Flexibility

A. Military Munitions Rule

    The flexibility of this rule is modeled on the conditional 
exemption developed for waste military munitions in the Military 
Munitions Rule published February 12, 1997 (62 FR 6622-6657). (See 40 
CFR part 266, subpart M.) The Military Munitions Rule (MMR) identifies 
when conventional and chemical military munitions become hazardous 
wastes 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. EPA provided the 
exemption for waste military munitions because the Defense Department 
Explosives Safety Board (DDESB) standards apply to and are binding on 
the military, and there is an institutional oversight process within 
the military. (See 62 FR at 6636.) Under the conditional exemption, 
non-chemical waste military munitions that normally meet the definition 
of ``hazardous waste'' are exempt from the regulatory definition of 
hazardous wastes under RCRA Subtitle C so long as the facilities 
storing or transporting munitions meet all of the conditions listed in 
the rule. (For the complete text of the Military Munitions Rule 
preamble, see 62 FR 6621, February 12, 1997.)
    The U.S. Court of Appeals for the D.C. Circuit upheld all aspects 
of the MMR in Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 
1998). The court agreed with EPA that ``Congress has not spoken 
directly to the issue of conditional exemption,'' and upheld as 
reasonable EPA's interpretation that 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

[[Page 27223]]

conditional exemptions. (Id.) 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.'' (Id. at 958.) For a more 
complete explanation of the legal basis for establishing a conditional 
exemption under RCRA, see the preamble to the Military Munitions Rule 
at 62 FR 6636. Today's final rule recognizes the safeguards which the 
NRC or NRC Agreement State regulatory program for low-level radioactive 
wastes already provides during storage, treatment, transportation and 
disposal. State radiation programs address NARM wastes under separate 
authorities.

B. Applying the Conditional Exemption Concept to Mixed Waste

    In the Military Munitions Rule, EPA conditionally exempted from 
RCRA Subtitle C regulation stored waste military munitions and waste 
military munitions transported from one military owned or operated 
facility to another that are subject to DDESB standards. We take a 
comparable approach for generators of LLMW in this rule, which provides 
a conditional exemption for the storage, treatment, transportation, and 
disposal of LLMW that is subject to NRC or NRC Agreement State 
regulation. The exemption is based on the NRC or the NRC Agreement 
State licensing process and regulatory requirements, and their adequacy 
in addressing risks from both radioactivity and RCRA hazardous 
constituents. By promulgating a conditional exemption, we can eliminate 
redundant or dual requirements where wastes are managed safely; the 
NRC-required safeguards are in place (for example, inspection, 
recordkeeping, reporting); and penalties or other consequences may be 
imposed if the governing regulatory framework is not followed. Taking 
these features together, EPA concludes that these wastes should not be 
regulated under Subtitle C, because the NRC regulatory framework 
ensures protection of human health and the environment.
1. Evaluation of NRC Storage and Treatment Requirements
    The NRC was created as an independent agency by the Energy 
Reorganization Act of 1974, which abolished the Atomic Energy 
Commission (AEC) and moved the AEC's regulatory function to NRC. This 
act, along with the Atomic Energy Act of 1954, as amended, provides the 
foundation for regulation of the nation's commercial nuclear power 
industry. The NRC's scope of responsibility includes regulation of 
commercial nuclear power reactors; non-power research, test, and 
training reactors; fuel cycle facilities; medical, academic, and 
industrial uses of nuclear materials; and the transport, storage, and 
disposal of nuclear materials and waste.
    NRC regulations are issued under the United States Code of Federal 
Regulations (CFR) Title 10, Chapter 1. Regulation of LLMW is addressed 
through the issuance of regulations including those found in 10 CFR 
parts 20, 30, 35, 40, 50, 61, 70, and 71. NRC interprets these 
regulations and offers guidance on how licensees should comply with 
them through numerous Criteria, Regulatory Guides, Generic 
Communications, and NRC Reports.
    Licenses that are issued on the basis of NRC's regulatory system 
allow entities to manage nuclear materials including wastes. Conditions 
of these licenses are enforced by NRC's Office of Enforcement, which 
oversees, manages, and directs the development and implementation of 
policies and programs for enforcement of NRC requirements. The system 
in place provides a comprehensive framework for the safe management of 
the various forms of waste generated by the nuclear industry, including 
LLMW. The NRC shares with EPA a common responsibility to protect the 
public health and safety.
    In considering a conditional exemption from RCRA Subtitle C 
regulation for storage and treatment of low-level mixed waste generated 
by an NRC or NRC Agreement State licensee, 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 adequately protects against 
possible risks from RCRA hazardous constituents in mixed waste. 
Although NRC regulation and oversight are designed primarily to address 
risks posed by radiation, the NRC, the regulated industry, and others 
have argued that these standards largely duplicate RCRA requirements 
and also protect against risks to human health and the environment 
posed by hazardous waste.
    Second, we compared NRC low-level waste and EPA hazardous waste 
storage and treatment requirements. (See Ref. 4, EPA Comparison of 
Storage and Treatment Requirements, for details.) We found that 
activities performed by a licensee to safely store, treat, or address 
the release of the radioactive component of mixed waste also resulted 
in the safe management of the hazardous waste of the LLMW matrix. This 
result is attributable to the nature of mixed wastes--that is, 
migration of hazardous constituents does not occur except in the 
presence of radionuclides. Our analysis was conducted 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). (See proposal F-
1999-ML2P-FFFFF, 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 
the other studies note differences in implementation and emphasis (for 
example, NRC requirements are performance based whereas EPA's 
requirements under RCRA are prescriptive. NRC licenses are specifically 
tailored to the site, whereas RCRA permits are based on national 
standards.)
    Third, we reviewed the compliance history of licensed facilities. 
We investigated a variety of NRC produced violation summaries for the 
years 1993-1998. These reports included: Office of Enforcement Annual 
Report-Fiscal Year 1996; Office of Enforcement Annual Report-Fiscal 
Year 1997; and Escalated Enforcement Actions Issued Since March 1996 
for Reactor Licensees (Last Updated August 14, 1998). For Agreement 
States, Integrated Materials Performance Evaluation Program NRC Reviews 
were analyzed for 17 States. We looked at these and other records for 
documentation of incidents involving the storage and on-site treatment 
of radioactive wastes by LLMW generators who are licensed users of 
radionuclides. Our review found that, with few exceptions, the sampled 
NRC licensed facilities had excellent low-level waste management safety 
records. (See proposal F-1999-ML2P-FFFFF, 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 
safely managed and not likely to pose a threat to human health and the 
environment.
    Two environmental groups suggested that EPA should undertake 
research on the potential synergistic effects of radioactive and 
hazardous constituents in wastes with the goal of making exposure 
standards for protecting individuals more restrictive. We note that NRC 
requires licensed facilities to manage LLW (in both the design of the 
facility and in its standard operating

[[Page 27224]]

procedures) to prevent releases, explosions, fume generation, 
accidental ignition, and reaction of ignitable wastes that could result 
from improper mixing or from instability of some LLW. In addition, one 
of the conditions for the storage exemption is that generators must 
store low-level wastes in tanks or containers in compliance with 
chemical compatibility requirements, to prevent chemical interactions. 
(See Sec. 266.230 [b][2].) Management of the waste adhering to these 
requirements will avoid potential synergistic effects during storage, 
or avoid impairment to human health or the environment. The disposal 
exemption requires both treatment to the levels specified in the Land 
Disposal Restrictions, and placement in specific types of containers 
prior to disposal at a Low-Level Radioactive Waste Disposal Facility. 
Moreover, existing NRC requirements prohibit the disposal of liquid 
wastes in LLRWDFs. The Agency concludes that potential synergistic 
effects have been addressed because these conditions must be met to 
qualify for and maintain a conditional exemption, and the conditions 
are designed to ensure no contact, or minimal contact, between the 
waste materials and human and environmental receptors. Finally, EPA is 
not aware of any such synergistic effects being documented for the 
waste types being exempted, and has no reason to suspect them. The 
current system of dual regulation does not take any such effects into 
account. Should EPA determine in the future that such effects exist, it 
could re-evaluate the protectiveness of the NRC regime. In the 
meantime, EPA believes the conditional exemption will be as protective 
as the current system.
2. Review of NRC Disposal Requirements
    In considering the transportation and disposal conditional 
exemption, we also evaluated certain key factors. First, we compared 
EPA's and DOT's hazardous waste manifest and transportation 
requirements with NRC's and DOT's low-level radioactive waste manifest 
and transportation requirements. We found that the waste tracking and 
transportation requirements for LLW are either equal to or more 
restrictive than those required by EPA for treated RCRA hazardous 
waste. DOT concurred with our assessment that the transportation 
requirements for LLW are equivalent, if not more restrictive than, the 
transportation requirements for a RCRA hazardous waste that has been 
treated and has met LDR treatment standards. (See Ref. 19, Discussion 
with DOT on Mixed Waste Transportation on August 1999.) As a result, 
requiring compliance with RCRA hazardous waste manifest and 
transportation requirements would be redundant and, therefore, 
unnecessary.
    Second, we compared EPA's disposal requirements with NRC's LLW 
disposal practices and requirements. We reviewed NRC requirements and 
the practices of low-level waste disposal facilities to determine if 
NRC provides levels of human health and environmental protection 
similar to RCRA Subtitle C protection for permitted disposal 
facilities. (See proposal F-1999-ML2P-FFFFF, Ref. 7, Technical 
assessment of LLRWDFs.) Our review indicates that NRC regulations for 
disposal facilities provide protection comparable to that provided by 
RCRA particularly given that we are requiring that the RCRA hazardous 
constituents be treated to LDR treatment standards, and that the waste 
be placed in certain types of containers prior to disposal. We believe 
that LLMW and Eligible NARM treated, placed in containers, and disposed 
of at these facilities are not likely to pose a threat to human health 
and the environment. Therefore, RCRA Subtitle C regulation for these 
wastes is not necessary to ensure protection of human health and the 
environment.

V. How Are the Final Storage and Treatment Provisions Different 
From the Proposal?

    The final rule contains a number of language changes to respond to 
comments, including changes to make the wording for storage and 
treatment exemption more closely parallel to the wording for 
transportation and disposal exemption. However, the final rule 
maintains the conditional exemption for storage, treatment, 
transportation, and disposal. The changes to our proposal for storage 
and treatment are highlighted below, and are discussed in greater 
detail in Section VI of this preamble. The changes to our proposal for 
transportation and disposal are highlighted in Section VII, and are 
discussed in greater detail in Section VIII of this preamble.

A. Streamlined Language

    In the final rule we have streamlined the eligibility criteria and 
conditions to remove overlapping and, according to some commenters, 
redundant language. For example, in our proposal we had said that to be 
eligible for this conditional exemption LLMW must be managed under an 
NRC or NRC Agreement State license. We also had listed a condition that 
you must have a valid NRC license. We have dropped this overlapping 
language. In another example, our proposal included a condition which 
stated that you must meet the eligibility criteria. However, it is 
obvious that if you do not meet the eligibility criteria you cannot 
claim the exemption. The condition was not necessary as the threshold 
eligibility criteria must be met first. We note that while eligibility 
criteria are considered threshold matters, your waste must continue to 
meet the eligibility criteria to remain exempt.
    We moved two of the eligibility criteria we specified in our 
proposal. (See 64 FR 63498, Sec. 266.225.) These criteria were related 
to waste storage which meets the requirements of your license for 
storing LLW and storage in compliance with chemical compatibility 
requirements. These provisions appear in the final rule in Sec. 266.230 
as conditions that you must meet and maintain.

B. Eligibility Revisions

    In the final rule we have specified that LLMW eligible for the 
exemption must be generated and managed by you under a single NRC or 
NRC Agreement State license. This language replaces the proposed 
language ``stored on-site.'' The change was based upon comments 
received on this provision. (See in-depth discussion in Section VI of 
this preamble.)
    C. Clarifications Related to Inventory and Treatment
    Commenters indicated the language we used in the proposal related 
to the frequency of inventory and the types of acceptable treatment was 
not clear. In the final rule we have clarified that an annual, not 
quarterly, inventory is required. Regarding treatment, we have 
clarified that types of treatment allowable are those that can be done 
in a tank or container and are allowed under the terms of the NRC or 
NRC Agreement State license. These clarifications have been made in 
Sec. 266.230 and Sec. 266.235.

D. Recordkeeping Requirements

    In our proposal, recordkeeping requirements appeared in two places. 
We have removed the recordkeeping requirement under the inventory 
condition proposed as Sec. 266.230(f) and consolidated all 
recordkeeping requirements in Sec. 266.250 of the final rule. 
Commenters had found the references in our proposal redundant and 
unclear. We have also clarified that you must keep records relating to 
meeting the eligibility criteria, and meeting and maintaining the 
conditions.

[[Page 27225]]

These records form the basis of your claim for the exemption.
    In addition, compliance with NRC or NRC Agreement State 
recordkeeping provisions relating to the storage of your waste is no 
longer a condition in Sec. 266.230. Instead, we are requiring you to 
keep these records as a RCRA requirement in Sec. 266.250 under the 
authority of sections 2002 and 3007 of RCRA. This change responds to 
comments received, and means that you no longer automatically lose the 
conditional exemption for your waste for failure to maintain records, 
though you may be subject to enforcement to ensure compliance and may 
be assessed RCRA fines and penalties if your records are not complete 
and accurate. If you fail to meet the recordkeeping requirements, you 
must take prompt action to return to compliance and to correct 
inaccurate information in your records. You must be able to demonstrate 
with your records that your waste is eligible and you meet the 
conditions for the exemption. In addition we included in Sec. 266.240 
language from the proposal (at Sec. 266.245) relating to terminating 
your conditional exemption for serious or repeated noncompliance with 
any requirement of subpart N. (See further recordkeeping discussion in 
Section VI.A.4.d.)

E. Implementation

    Commenters were confused regarding how RCRA closure applied to 
existing storage units. We have clarified that interim status and 
permitted facilities that have storage units which are used only for 
storage of conditionally exempt low-level mixed waste do not need to go 
through RCRA closure, but should seek modification of their permits or 
revise their interim status closure plans after the date this 
conditional exemption goes into effect. (See detailed discussion in 
VI.A.4.g.)

VI. Discussion and Response to Major Comments on the Storage and 
Treatment Conditional Exemption

A. Storage and Treatment--General Discussion of Provisions

    We are promulgating today a conditional exemption from RCRA 
Subtitle C requirements for storage and treatment of low-level mixed 
waste in qualified tanks or containers. (See 51 FR 10168, March 24, 
1986 regarding waste treatment in tanks or containers.) This regulatory 
flexibility for storage and treatment applies to any generator of LLMW 
who is licensed by NRC or an NRC Agreement State to manage radioactive 
materials. Note, the storage and treatment conditional exemption is 
available only to low-level mixed wastes generated under a single NRC 
or NRC Agreement State license. The conditional exemption for LLMW 
applies only while the waste is stored and/or treated in tanks or 
containers by the generator, and exempts the stored or treated waste 
from the regulatory definition of hazardous waste found in 40 CFR 
261.3. Prior to storage and/or treatment, all relevant regulations 
related to hazardous waste generators in 40 CFR part 262 apply. In most 
cases, where exempted wastes are immediately placed in storage, subpart 
A would apply. When waste is removed from storage or treatment and is 
transported to any facility with another NRC license (other than to a 
LLRWDF under the provisions of 40 CFR 266.305), 40 CFR 262.30 through 
262.34 and part 262 subpart D will apply.
    LLMW must be eligible under Sec. 266.225, and generators must meet 
the conditions listed in Sec. 266.230. The storage and treatment 
exemption will be valid only as long as the eligibility criteria and 
conditions are met.
    During storage or allowable treatment of conditionally exempted 
LLMW, the generator will not be required to have a RCRA permit for the 
conditionally exempt waste or meet other RCRA Subtitle C requirements. 
The storage and treatment conditional exemption applies only to LLMW 
and does not affect other RCRA hazardous wastes a licensee may 
generate. A RCRA permit may be required for management of those other 
wastes depending on the circumstances. In such cases, facilities might 
decide to identify and locate conditionally exempt stored wastes 
separately from other stored wastes (whether storage by the generator 
for less than 90 days or permitted storage).
    In the regulatory language, we describe which wastes are eligible 
for the storage and treatment conditional exemption (Sec. 266.225), 
what conditions a generator must meet to qualify for the exemption 
(Sec. 266.230), and how the exemption will be implemented (Sec. 266.240 
through Sec. 266.260). Under this rule, if you fail to meet the 
specified conditions, your LLMW is no longer exempted from regulation 
as a hazardous waste.
1. What Wastes Are Eligible for the Storage and Treatment Conditional 
Exemption? (Sec. 266.225)
    Low-level mixed waste meeting the definition in Sec. 266.210 is 
eligible for a storage and treatment conditional exemption if it is 
generated and managed by you under a single NRC or NRC Agreement State 
license. Mixed waste generated at a facility with a different license 
number and shipped to your facility for storage or treatment requires a 
RCRA permit and is ineligible for this exemption. The types of 
facilities that may have LLMW eligible for the storage and treatment 
exemption include nuclear power plants, fuel cycle facilities, 
pharmaceutical companies, medical and research laboratories, 
universities and academic institutions, hospitals, and some industrial 
facilities.
    a. Eligibility provisions and changes from storage and treatment 
proposed regulatory language. The eligibility provision covers two 
prerequisites that must be met for the waste to be eligible for the 
storage and treatment conditional exemption:
    1. The waste must be a LLMW;
    2. The waste must be generated and managed by you under a single 
NRC or NRC Agreement State license.
    We realize there may be instances where one NRC or NRC Agreement 
State license number might apply to more than one non-contiguous unit. 
(For example, a generator such as a university may have a storage unit 
that is not contiguous to the main generating campus, but has the same 
NRC license number.) In the event that a generator must ship to another 
non-contiguous storage area under the same NRC license, the rule allows 
for the shipment of the waste either from the point of generation to 
the storage location, or from one storage point to another storage or 
treatment point with the same NRC license number. In the event of a 
shipment, the hazardous waste manifesting requirements remain in 
effect, as the eligible waste is still a hazardous waste until such 
time as it is place in the accumulation storage area. Storage areas 
will not need a RCRA permit in the case where only LLMW is stored. 
However, shipment of exempted waste to these storage areas may occur as 
they will be considered designated facilities for the purpose of this 
rule, since they continue to be safely regulated under their NRC 
licenses. (See letter from Elizabeth Cotsworth to J.D. Givens, dated 
March 27, 1998, Ref. 20.) Storage may, therefore, be either at the 
generating site or at your accumulation storage unit with the same NRC 
or NRC Agreement State license number as that under which the waste was 
generated.
    i. Waste is a LLMW (Excludes NARM). We are finalizing a conditional 
exemption for LLMW because of the dual regulation to which it is 
subject. NARM does not meet the definition in Sec. 266.210 of low-level 
mixed waste. We heard from several commenters on NARM. Some assumed we 
had included NARM as eligible for the storage

[[Page 27226]]

exemption; others suggested we do so. To clarify what we intended, 
eligible NARM in the proposal applied only to the conditional exemption 
for transportation and disposal. NARM is not included as a waste 
eligible for the storage and treatment conditional exemption because 
that exemption is based upon our study of NRC or NRC Agreement State 
management practices for stored waste. NARM is not regulated by NRC but 
by individual states or other federal agencies. We did not study State 
licensing procedures for managing NARM. Therefore, we have not included 
NARM waste containing hazardous waste in the storage and treatment 
conditional exemption because it was beyond the scope of our research 
relating to safe storage and treatment of LLMW.
    ii. Waste is generated and managed by you under a single NRC 
license. In the proposal, we stated that having an NRC license was a 
condition. However, we now recognize that it was redundant to require 
an NRC license provision as both a prerequisite for eligibility and a 
condition. Therefore, we have deleted the license provision as a 
condition, and retained it as a prerequisite for eligibility. If, at 
any time, a facility ceases to be subject to an NRC or NRC Agreement 
State license, then LLMW managed at the facility would become 
ineligible for the storage and treatment conditional exemption and 
would become subject to RCRA Subtitle C regulation. Similarly, if the 
waste has decayed to background levels, and ceases to be subject to LLW 
regulation, then the waste becomes subject to RCRA Subtitle C. (See 
VI.A.4.e.) The conditional exemption is predicated on our finding that 
NRC regulations and oversight provide the controls necessary to ensure 
that the hazardous portion of an exempted waste will not be mismanaged. 
It is the NRC license or NRC Agreement State license, issued and 
enforced by an independent government agency, that assures proper 
management during exempt storage. A majority of commenters agreed with 
the appropriateness of requiring an NRC license.
    Many commenters specified that the storage and treatment 
conditional exemption should not apply to DOE wastes because DOE is not 
subject to oversight by an independent regulatory agency. States 
expressed similar concerns in comments submitted to us. In addition, 
based on site treatment plans resulting from the Federal Facility 
Compliance Act of 1992, DOE and States have reached agreement on 
compliance orders regarding management of mixed wastes at DOE 
facilities. We do not intend to affect or disrupt these compliance 
orders. We continue to believe that DOE's storage and treatment of low-
level mixed wastes raises additional and more complex issues. 
Therefore, as proposed, we are not extending the storage and treatment 
conditional exemption to DOE.
    In this rulemaking, we have relied upon our thorough studies of the 
safety of generator management of LLW at facilities operating under a 
single NRC or NRC Agreement State license. These studies indicate that 
management of the hazardous component of LLMW under an NRC or NRC 
Agreement State license is unlikely to pose a threat to human health 
and the environment. We have changed the eligibility criteria from LLMW 
generated ``on-site'' (as stated in our proposal) to ``under a single 
NRC or NRC Agreement State license.'' This change from a prescribed 
RCRA definition of location to an NRC definition is in keeping with the 
flexibility we have sought in management of stored mixed waste under 
one regulatory framework. Our study did not focus on licensees who 
commercially store and treat waste for other generators. We therefore 
allow LLMW you generate under a single NRC or NRC Agreement State 
license to be eligible for a storage and treatment conditional 
exemption.
    b. Differences from proposed eligibility for storage and treatment 
exemption. These final eligibility criteria differ from those proposed 
in Sec. 266.225 for stored low-level mixed waste. Our proposal said 
LLMW ``is eligible for a conditional exemption if managed subject to 
NRC or Agreement State regulations, and if it is: (a) Generated at your 
facility * * *; (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. * * *''
    We have moved the references in the proposal at Sec. 266.225(b) 
``stored in a tank or container'' and (c) ``stored in compliance with 
chemical compatibility requirements.'' These provisions are combined as 
a condition in the final rule language at Sec. 266.230(b)(2). The 
condition must be met initially and maintained in order to keep the 
exemption. The exemption is automatically lost if the conditions are 
not met. (See discussion related to loss of the exemption in 
Sec. 266.240.)
    Similarly, the proposed eligibility criteria in Sec. 266.225(b), 
``* * * meeting the requirements of your NRC or Agreement State license 
for storing low-level waste,'' has been moved. In the final rule it is 
at Sec. 266.230(b)(1) and refers specifically to the requirements of 
your license that apply to proper storage of low-level radioactive 
waste. Note that the requirements of your license which relate solely 
to recordkeeping are identified under the reporting requirements in 
Sec. 266.250. This separation of safe management of the waste from the 
records relating to waste management was based on comments received, 
which argued that the automatic loss of the conditional exemption 
should be for improper management, and not solely for failure to 
maintain records.
    Another change in the final rule language at Sec. 266.225 relates 
to the replacement of ``on-site'' with ``under a single NRC or NRC 
Agreement State license.'' We received numerous comments relating to 
the question of limiting the conditional exemption to LLMW stored ``on-
site.'' We had specifically requested comment related to use of the 
term ``on-site'' to describe stored wastes meeting our proposed 
condition and the ``appropriateness of extending a conditional 
exemption to facilities that own or operate consolidated storage 
facilities that do not meet our current definition of ``on-site.'' (See 
64 FR 63472.) In our preamble, we had also sought comment on a related 
issue--``whether the conditional exemption should include a storage 
facility which serves as a consolidation point for a single entity.'' 
(See 64 FR 63472.)
    We received a large number of comments in response to these 
requests. Most of them recommended that we include, within the scope of 
the conditional exemption, storage of LLMW at facilities that do not 
meet the RCRA definition of ``on-site'' in 40 CFR 260.10. Commenters 
gave several reasons. Several commenters in support of centralized 
facilities (and commercial TSDFs) believed that consolidation of waste 
storage would reduce risks to the public because, unlike accumulation 
areas, centralized facilities are designed for longer term storage. 
Some of the commenters indicated that applying the RCRA ``on-site'' 
definition to limit the exemption would result in operational and 
administrative inefficiencies. These inefficiencies include the need 
for multiple storage facilities each with its own inventory and 
inspection schedules and emergency plan. Some commenters indicated that 
organizations, such as universities and medical institutions, store 
LLMW at generator owned and operated facilities and under their NRC 
licenses are able to store LLW for decay. However, the consolidation 
points these organizations use may not meet the ``on-

[[Page 27227]]

site'' definition, nor have a single RCRA permit number. A few of the 
total commenters noted that consolidation areas were covered by their 
NRC licenses and were not considered commercial facilities. Several 
stated that a license under NRC may cover several non-contiguous 
facilities or generation points that all are owned by one institution.
    We agree with these commenters that the consolidation of LLMW in a 
specially designed and operated consolidation facility will enhance 
protectiveness and is more efficient than maintaining multiple storage 
facilities. A number of commenters recommended that we allow LLMW to be 
transferred from the point of generation (even if off-site) to a 
centralized waste management facility. We agree as long as the mixed 
waste is managed under the same NRC or NRC Agreement State license 
number. This approach will promote the safe handling of LLW in 
centralized waste management facilities designed for radioactive waste 
management and decay-in-storage and facilitate compliance with ALARA 
principles, which seek to reduce exposures and which govern NRC LLW 
management. (For further discussion see background documents, Ref. 3, 
``Review of Waste Management Practices'' and Ref. 4 ``Comparison of 
EPA's RCRA and NRC's Licensing Requirements.'')
    We also received a small number of comments opposing an expansion 
of the exemption to consolidation areas or storage facilities that do 
not meet the ``on-site'' definition. (See 40 CFR 260.10.) Some of these 
commenters maintained that EPA had not explained why management of LLMW 
should be different from hazardous waste. Others stated that covering 
off-site generated wastes may cause generators to lose control of their 
wastes and may create opportunities for abuse. We disagree with these 
reasons for not expanding our rule to include off-site consolidation 
points under a single NRC license within the storage conditional 
exemption. The overall NRC mandate is for protective management of LLW. 
(See Energy Reorganization Act of 1974, Public Law 93-438, 42 U.S.C. 
5801(a).) We explained in our proposal that the NRC management 
framework is imposed on the waste generator by virtue of their NRC or 
the NRC Agreement State license. Since it is the controls imposed by 
this license that provide the basis for the exemption, it makes most 
sense to have the scope of the exemption be the same as the scope of 
the license. The ``on-site'' concept in RCRA serves principally to 
govern the scope of the RCRA permit exemption for hazardous wastes that 
are accumulated by a generator for a limited time period with limited 
controls. That concept has no bearing on this rule since the basis for 
the exemption created today is the protectiveness afforded by another 
regulatory program.
    Further, we do not believe a generator will lose control of the 
waste. The LLMW must be generated and consolidated in a storage area 
operated under the same NRC license as the waste was generated. First, 
as stated above, the waste must be manifested from the generation point 
to the storage site. In addition, control is maintained by the license 
and by the conditions that the waste be inventoried annually and 
inspected quarterly. The NRC or NRC Agreement State framework provides 
safe management of both the chemical and radiological hazards 
associated with LLMW. Such management is provided in addition to the 
license and ``tie-down'' conditions by adherence to NUREG-0933, ``A 
Prioritization of Generic Safety Issues,'' and by regulations like 10 
CFR 61.56, which include many features related to the physical and 
chemical characteristics of the waste. This management framework 
provides safeguards against abuse as expressed in the concerns of these 
commenters. In short, the NRC, or NRC Agreement State, licensing scheme 
provides substantial controls over waste managed under an NRC license. 
The commenter here provided no basis to believe that the NRC scheme 
fails to control the movement of waste, and EPA is not aware of any 
basis.
    c. Treatment and storage facilities managing LLMW from other 
generators. We are not extending the conditional exemption to those 
mixed waste facilities that manage wastes from other licensees. We 
requested comment on whether we should include in the conditional 
exemption for storage and treatment those mixed waste facilities that 
manage wastes from other generators. (See 64 FR 63473.) Some of the 
commenters addressed the issue of whether the scope of the conditional 
storage exemption should be expanded to include waste treatment and 
storage facilities that manage wastes from other generators. Many of 
those who did comment urged EPA to allow commercial storage and 
treatment facilities that manage LLMW from other generators the 
opportunity to claim the conditional storage exemption. These 
commenters cited several reasons to support their position. One reason 
given was the need of small businesses (for example, one-time or 
sporadic LLMW generators) who lack sufficient space for storage and 
decay to have a place to store their waste. A second reason was that 
the NRC and NRC Agreement State regulatory framework, which safely 
addresses storage, should also be sufficient for storage or treatment 
of wastes off-site, provided the off-site facility meets the conditions 
of the exemption. Commenters arguing the second position said that 
storage facilities would be able to accept wastes for storage that they 
currently cannot accept due to regulatory restrictions.
    Other commenters, however, maintain that EPA should not expand 
eligibility for the conditional storage exemption to commercial storage 
facilities. These commenters believe NRC regulations are not as 
protective of human health as are RCRA waste management requirements; 
NRC provides less rigorous oversight of storage facilities as compared 
with nuclear power plants; NRC lacks enforcement authority over 
hazardous constituents; and storage facilities would have difficulty 
keeping track of exempt waste and separating it when necessary. One 
commenter indicated that commercial storage facilities already have 
RCRA permits so there would be little burden reduction if they were to 
operate under a conditional storage exemption. Other commenters stated 
that allowing storage facilities to operate under the storage exemption 
would place an additional burden on the host communities. Because 
commercial storage facilities are in the ``business of managing such 
materials for compensation,'' some commenters maintained the commercial 
storage facilities should have RCRA permits and not be eligible for the 
conditional exemption.
    While there may be some small businesses that would benefit as a 
result of an expansion of the conditional exemption to commercial 
storage facilities, small businesses that generate only small 
quantities of waste are eligible under RCRA regulations for 
conditionally exempt small quantity generator (CESQG) status. (See 40 
CFR 261.5.) If it is eligible for CESQG status, a small business may be 
conditionally exempt from RCRA regulatory requirements based on the 
very small volume of hazardous wastes or acutely hazardous wastes which 
they generate. If it is not a small quantity generator, commercial 
storage facilities (without an exemption) are still available for waste 
storage (up to one year) and treatment under current regulations.
    We also disagree with some of the reasons offered by commenters 
opposing extending the conditional exemption to waste managed at 
commercial storage facilities. The focus of this regulatory effort from 
its

[[Page 27228]]

inception has been limited to a response to expressed concerns of 
generators regarding overlapping regulation of mixed waste still under 
their control (i.e., at their licensed facility). We did not 
comprehensively evaluate commercial storage facilities storing wastes 
for other licensees given the focus of the rule and limitations of 
time. While we asked for information regarding the relevance of the 
rule to commercial facilities that manage wastes from other generators, 
we did not receive data to support opening the exemption to commercial 
facilities. Although we believe that the quantities of waste shipped to 
these facilities could be small, some question still remains as to the 
long-term effect of commercial storage facilities on the management of 
LLMW. For example, while we do not establish a time limit on the 
storage of conditionally exempt waste, we continue to believe that it 
is highly desirable to have a system under which waste is stored for 
short periods of time before being sent for treatment and disposal. 
Even without a regulatory time limit, a generator has incentives (such 
as capacity limitations, management costs and the rising trend in 
disposal costs) to move waste stored at its facility from storage to 
treatment and disposal. (See section VI.A.4.e.iii.) A commercial 
storage facility may have reduced incentives to minimize storage time, 
since a commercial facility is more likely to have excess capacity to 
account for fluctuations in waste shipments. In addition, since storage 
is the main business of such facilities, they are less likely to view 
waste storage as an ancillary operation to be kept to a minimum. We 
agree with those who argue that most commercial TSDFs are permitted and 
should remain so. In addition, by limiting the scope of the exemption 
to storage and treatment at facilities operating under the same NRC or 
NRC Agreement State license, the compliance orders which DOE has signed 
with States pursuant to the FFCA will not be affected. In summary, 
because we did not thoroughly evaluate commercial facilities, and the 
other issues associated with these facilities, at this time we are not 
expanding the storage and treatment conditional exemption to include 
storage facilities in the business of treating and storing other 
licensees' wastes.
2. What Conditions Must You Meet To Qualify for and Maintain a Storage 
and Treatment Exemption? (Sec. 266.230)
    a. Initial condition to qualify--you must notify the Director of 
your claim. Under Sec. 266.230(a), to qualify for the storage and 
treatment conditional exemption, you must notify the Director in 
writing by certified delivery that you are claiming a conditional 
exemption for a storage unit containing low-level mixed waste. Your 
notification must be signed by your authorized representative, as 
defined in 40 CFR 260.10, who certifies that the information in the 
notification is true, accurate, and complete. You must notify the RCRA 
regulatory authority of your claim either within 90 days of the 
effective date of this rule in your State, or within 90 days of when a 
storage unit is first used to store conditionally exempt LLMW.
    You, as the party claiming the conditional exemption, must be able 
to demonstrate that your waste and storage unit meet the eligibility 
criteria and all the conditions. Notification is necessary because it 
provides the Director with a record of your claim for the exemption. 
Your notification is self-implementing, although we may use our 
inspection and information collection authorities to verify whether you 
are meeting the conditions. You will not receive a notice of approval 
from EPA or the Director.
    i. Cross reference to proposed rule. The rule language is 
reordered, but the wording related to notification is substantively the 
same as in proposed Sec. 266.230(d). We reordered the language to 
improve the clarity of the final rule. (See 64 FR 63472.)
    ii. Comments we received on storage and treatment notification. We 
received a number of comments regarding storage and treatment 
notification. The majority asked that we require generators to notify 
either the EPA Regional Administrator or the Director. Several 
commenters mentioned a preference that state hazardous waste programs 
be notified. Other commenters thought the notification should also be 
sent to NRC. These commenters also thought that we should require 
additional information in the notice, such as:
     The scope of activities and type of mixed waste,
     Radiological and chemical characteristics,
     The RCRA waste codes,
     The expected length and method of storage (container or 
tank type),
     Where waste storage and treatment will take place,
     The type of treatment, and
     A copy of the emergency plan and the NRC license, 
including the license number and expiration date of the NRC license.
    As a result of these comments, we have more clearly spelled out in 
the notification language in Sec. 266.230(a) basic information which is 
readily available to a mixed waste generator and which specifically 
identifies that generator, waste code(s), and storage unit(s). In the 
final rule, the dated notification must include your name and address, 
RCRA identification number, NRC or NRC Agreement State license number, 
the waste code(s) and storage unit(s) for which you are seeking an 
exemption, and a statement that you meet the conditions of subpart N. 
We note that some of the information requested by commenters is 
unnecessary and could change after the initial notification. The 
purpose of the notification is to identify and notify, not to provide a 
management plan for the waste. Based on our studies, we can confidently 
rely on the NRC management framework for conditionally exempted LLMW. 
The Director will have access to information substantiating your claim 
in the records you are required to keep. We do not find it is necessary 
to impose a requirement to provide all of this information in the 
notification. In particular, providing a copy of the NRC license would 
be burdensome as it is readily available for a site inspection and is 
generally quite lengthy. In addition, today's conditional exemption is 
based on the protectiveness of the NRC regulatory scheme, not on a 
license-by-license review. In any event, much of this information will 
be available to a RCRA inspector during a site visit from records that 
a generator is required to maintain. Of course, after the Director 
receives your initial notification, information may be requested using 
information gathering authorities if needed for any reason.
    One commenter suggested an annual status report with projected 
dates for treatment, shipment, and disposal. We do not agree with this 
suggestion because a status report adds a recurring reporting burden 
that is not necessary to protect human health and the environment. 
Since projected dates for treatment, shipment, and disposal may change 
a status report does not provide useful information regarding safe 
management. The information is also irrelevant to any of the conditions 
for the exemption. The fact that a RCRA inspector may follow-up at any 
time on the claim of exemption to verify that the conditions are met 
should provide sufficient opportunity to gather needed information. The 
notification, coupled with the management of this waste under NRC or 
equivalent NRC Agreement State regulations, provides information on who 
is managing exempt waste and assurance regarding its safe management. 
If a generator fails to comply with the eligibility criteria, or

[[Page 27229]]

any of the conditions, the generator must notify the Director of the 
failure under Sec. 266.240(a).
    b. Conditions to maintain the storage and treatment exemption 
(Sec. 266.230(b)). i. Store waste in tank or container in compliance 
with storage requirements of your NRC or NRC Agreement State license.
    In the final rule, we state that you must ``store your low-level 
mixed waste in tanks or containers in compliance with the requirements 
of your license that apply to the proper storage of low-level 
radioactive waste (not including those license requirements that relate 
solely to recordkeeping).'' This condition had been an eligibility 
provision in the proposed rule at Sec. 266.225(b). In the final rule, 
the waste management aspects of this condition (relating to storage 
under your NRC or NRC Agreement State license) have been separated from 
the recordkeeping aspects related to storage of your LLW. We believe 
that adherence to NRC licensing requirements is important to the safe 
storage of the hazardous portion of the LLMW stream. In the proposal, 
we requested comment on whether this condition should include the loss 
of the exemption if any LLW storage requirement of the NRC license is 
not met; or restrict loss of the exemption to those violations which 
may result in an environmental impact. (See 64 FR 63472.)
Comments Received on Compliance With License Storage Requirements
    We received numerous comments on this aspect of the rule. Most of 
these comments expressed the view that the storage and treatment 
conditional exemption should be lost only when NRC license 
noncompliance is specifically related to waste management, and only in 
situations that may result in adverse environmental impact. Many 
reasons were given for this view. Commenters expressed concerns for 
cycling in and out of the exemption because of minor non-compliance 
such as misspelled names or incorrect phone listings in the emergency 
plan. Commenters pointed out that NRC can cite a licensee for failure 
to comply with the licensee's own internal procedures, so a licensee 
could be in violation of an NRC license condition without any adverse 
health or environmental impact, or release of hazardous constituents.
    Commenters compared failure to meet the requirements of the NRC 
license with failure to meet RCRA permit requirements. Correction of 
the failure is required, and the Director may impose a fine or penalty, 
but the permit is not automatically lost for such a failure. (However, 
the Director does have the ability to revoke a permit for significant 
non-compliance. See 40 CFR 270.41 and 270.43.) Commenters indicated 
that many kinds of errors can be easily corrected, and should not 
trigger the loss of the exemption nor subject the generator to RCRA 
Subtitle C regulation. Conversely, other commenters thought a generator 
should lose the exemption for failing to meet any NRC LLW storage 
requirement. These commenters said that it would provide a powerful 
incentive for generators to comply with the conditions.
    We believe that the loss of the exemption for failure to meet any 
NRC LLW storage requirement, including minor requirements not directly 
related to safe storage, is unwarranted and not necessary to protect 
human health and the environment. As noted above, the consequence of 
failure to meet a RCRA permit requirement is not the automatic loss of 
the permit. Based upon comments supporting a specific condition 
relating to waste management, and the difficult situations which 
commenters have brought to our attention, we have revised the condition 
in Sec. 266.230(b)(1) to read, ``* * * in compliance with the 
requirements of your license that apply to proper storage of low-level 
radioactive waste.* * * '' The final rule does not limit the loss of 
the exemption to events causing adverse environmental impact, but 
strikes a balance by specifying a loss of the exemption when 
noncompliance with the condition is related to waste management. We 
believe it would create considerable uncertainty and great difficulties 
for purposes of enforcement and compliance assurance, if the RCRA 
status of the waste turned on the judgment of whether a particular 
violation might cause an adverse environmental impact.
    The recordkeeping requirements related to your NRC license have 
been moved to section Sec. 266.250. Upon consideration of the comments, 
we have concluded that reporting compliance is better treated as a 
requirement rather than a condition. First, given the logic of the 
conditional exemption, it seems artificial to say that a waste which is 
not ``hazardous'' under the RCRA regulatory definition becomes 
``hazardous'' if a report contains an inaccuracy, even if the waste is 
still being properly managed. In addition, we agree with the commenters 
that we should not create a system under which the storage and 
treatment exemption can be easily lost for minor or inadvertent 
infractions. Finally, we believe the final rule scheme retains a strong 
incentive for compliance with recordkeeping requirements. Again, in 
striking a balance based on comments we received, we provide language 
in Sec. 266.240(b) that the Director may terminate an exemption, or 
specify additional conditions, for repeated or serious noncompliance 
with the requirements of subpart N. (See proposal at Sec. 266.245(b).)
    ii. Store waste in compliance with chemical compatibility 
requirements. You must ``store your low-level mixed waste in tanks or 
containers in compliance with chemical compatibility requirements of a 
tank or container in 40 CFR 264.177, or 264.199, or 40 CFR 265.177, or 
265.199.'' The rule requires that the waste be compatibly stored in 
tanks or containers. This condition is found in Sec. 266.230(b)(2) in 
the final rule. For clarity, this provision has been moved from 
Sec. 266.225(c) in our proposed rule where it was required for 
eligibility. The proposed rule language stated LLMW is eligible ``if it 
is: * * * (c) Stored in compliance with chemical compatibility 
requirements of a tank or container (See Sec. 264.177, or Sec. 264.199 
of this chapter), or (Sec. 265.177, or Sec. 265.199 of this chapter).'' 
The language in the final rule is essentially the same as in the 
proposal. We received a number of comments on eligibility provisions in 
the proposal. However, none was directed at the proposed eligibility 
requirement in Sec. 266.225(c) relating to compliance with chemical 
compatibility requirements. We have therefore retained this provision 
as a condition and emphasize the importance of meeting this condition 
to retain the conditional exemption for storage.
    iii. Certify that personnel are trained in hazardous waste 
management. You must certify that facility personnel who manage stored 
mixed waste are trained in a manner which ensures that the 
conditionally exempt waste is safely managed and includes training in 
hazardous waste management and hazardous materials incidents response 
that meets the personnel training standards found in 40 CFR 
265.16(a)(3).'' Personnel managing the waste must be trained in 
identifying and providing initial response to a release of hazardous 
constituents as well as in managing radioactive waste. As part of the 
notification process, you must certify by a written statement that 
personnel managing stored LLMW are appropriately trained. This 
condition at Sec. 266.230(b)(3) is the same as our proposal where it 
appeared at Sec. 266.230(e).

[[Page 27230]]

Comments on Storage and Treatment Related to Training
    We received a comment that similar training was already required by 
NRC or an NRC Agreement State license; the commenter felt that the 
training condition could be deleted. Other commenters believed that 
proper training was critical, and that the training condition as 
written in the proposal was reasonable. We determined, based on our 
studies, that added training in chemical waste management was important 
to assure protection of human health and the environment. We, 
therefore, agree with these latter commenters. One commenter objected 
to the need to certify that personnel had been trained, and recommended 
we drop the certification. We used the word ``certify'' because we 
believe that training in hazardous waste management is critical. The 
certification ensures that the LLMW facility will verify compliance 
with the training requirements. It provides an assurance to commenters 
who expressed concerns about the ability of personnel trained in safe 
management of radioactive materials also to manage hazardous wastes 
safely, and respond to hazardous materials incidents. The certification 
also ensures that a record is available for review by an inspector, 
enabling verification that all personnel involved in managing or 
handling the exempt stored wastes are aware of the potential hazards of 
the hazardous portion of these wastes.
    iv. Inventory and inspect your waste. You must ``conduct an 
inventory of your stored low-level mixed waste at least annually and 
inspect it at least quarterly for compliance with this paragraph (part 
266 subpart N).'' An important part of assuring that you comply with 
the conditions in today's rule is the condition that you perform 
regular inspections of the areas in which you store exempted waste, as 
well as an annual inventory of the waste to detect any loss or other 
mismanagement. We received comments that the proposal was unclear as to 
what inventory frequency we intended.
Revision to Inventory Language From Proposed Storage and Treatment 
Exemption
    In our November 1999 proposal, at Sec. 266.230(f), we said, 
``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.* * *'' Several 
commenters requested that we clarify the inventory frequency; they did 
not know if we meant an annual or quarterly inventory. We had intended 
that generators conduct an inventory annually. Therefore, we have 
deleted the reference to ``update your inventory records of 
conditionally exempt LLMW quarterly.'' The annual inventory records, 
copies of the generator's notification of additional claims for 
conditional exemption of storage units, and records of all shipments 
for treatment or disposal since the annual inventory will be available 
to an inspector. These records will enable an inspector to gain access 
to a complete file of all conditionally exempt LLMW storage units and 
to verify the amount stored at any given time. Our proposal addressed 
records requirements in Sec. 266.230(f) and Sec. 266.250. We have 
consolidated required records maintenance in Sec. 266.250.
    v. Maintain an accurate emergency plan (Sec. 266.230[b][5]). You 
must ``maintain an accurate emergency plan and provide it to all local 
authorities who may have to respond to a fire, explosion, or release of 
hazardous waste or hazardous constituents. Your plan must describe 
emergency response arrangements with local authorities; describe 
evacuation plans; list the names, addresses, and telephone numbers of 
all facility personnel qualified to work with local authorities as 
emergency coordinators; and list emergency equipment.'' In our 
proposal, nearly identical language was found in Sec. 266.230(g). 
However, in proposed Sec. 266.230(g) we also provided at the end of the 
paragraph the following reference: ``(See 40 CFR part 265, subpart 
D.).'' The reference caused confusion. We had intended this reference 
to serve to identify those aspects of a contingency plan and emergency 
procedures necessary for managing hazardous wastes during an emergency. 
Several commenters interpreted that reference as serving as guidance in 
the development and maintenance of an emergency plan; others 
interpreted the reference as a requirement. Because we enumerate, 
within the rule language, the essential components of the RCRA 
emergency plan, we have dropped the reference. However, the regulations 
at 40 CFR part 265, subpart D can continue to provide guidance 
concerning the necessary elements of a comprehensive emergency plan.
    c. Modifications to proposed storage and treatment conditions. We 
have modified the storage and treatment exemption conditions listed at 
Sec. 266.230 in the proposed rule as described below.
    First, we moved the proposed condition to have a valid NRC or 
Agreement State license (proposed as Sec. 266.230[a]) from the 
conditions section to the eligibility section (Sec. 266.225). We made 
this change because this is best described under eligibility. Before 
your waste can qualify for the conditional exemption, your waste must 
be eligible, i.e. managed under an NRC or NRC Agreement State license. 
If your waste is not eligible, it cannot be conditionally exempt from 
RCRA Subtitle C regulation. Eligibility criteria are threshold 
provisions.
    Second, we deleted the condition to meet the eligibility criteria 
(proposed as Sec. 266.230[c]) because we determined that this was 
basic. A generator could not claim the exemption without first meeting 
(and maintaining) the eligibility criteria.
    Third, we maintained the condition that you notify the regulatory 
authority in writing by certified delivery that you are claiming a 
conditional exemption for your low-level mixed waste (proposed as 
Sec. 266.230(d) and finalized as Sec. 266.230(a)). Your notification 
must be signed by an authorized representative of your establishment 
who certifies that the information in the notification is true, 
accurate, and complete. You must notify your regulatory authority of 
your claim either within 90 days of the effective date of this rule in 
your State, or within 90 days of when a storage unit is first used to 
store conditionally exempt low-level mixed waste. Your dated 
notification must include identifying information such as your name and 
address, your RCRA generator ID number, your NRC license number, and 
the name of your authorized representative signing the notice. In 
addition, your notification must indicate that you meet all the 
conditions for the exemption, and indicate the waste and storage unit 
for which you are claiming the exemption.
    Fourth, both to streamline the regulatory language, and to make 
clear the conditions that you must meet and maintain for your waste to 
qualify for the conditional exemption, we combined and moved the 
eligibility criteria proposed in Sec. 266.225(b) and (c) to 
Sec. 266.230(b). Based on comments we clarified these conditions that 
must be met and maintained.
    We received considerable comment on whether claimants should be 
required to comply with all the requirements of their NRC or NRC 
Agreement State license, or with just those provisions that related to 
the management of conditionally exempt LLW (i.e., those provisions, 
which if violated, could result in an

[[Page 27231]]

environmental impact from the exempted waste). In response, we modified 
the proposed condition that claimants must be in compliance with the 
requirements of their license for storing LLMW (proposed as 
(Sec. 266.230[b]). This modification resulted in the condition 
((Sec. 266.230[b][1]), which requires you to store your LLMW in tanks 
or containers in compliance with the requirements of your license that 
apply to the proper storage of LLW (not including those license 
requirements that relate solely to recordkeeping).
    The remaining conditions--proposed as Sec. 266.230(e), (f), and 
(g)--are being finalized as Sec. 266.230(b)(3), (4), and (5), 
respectively. Specifically, claimants still must:
     Certify that facility personnel who manage stored 
conditionally exempt LLMW have been trained in a manner that ensures 
that the conditionally exempt waste is safely managed and includes 
training in chemical waste management and hazardous materials incidents 
response that meets the personnel training standards found in 40 CFR 
265.16(a)(3);
     Conduct an inventory of your stored conditionally exempt 
LLMW at least annually and inspect it at least quarterly for compliance 
with part 266 subpart N; and
     Maintain an accurate emergency plan and provide it to all 
local authorities who may have to respond to a fire, explosion, or 
release of hazardous waste or hazardous constituents. Your plan must 
describe emergency response arrangements with local authorities; 
describe evacuation plans; list the names, addresses, and telephone 
numbers of all facility personnel qualified to work with local 
authorities as emergency coordinators; and list emergency equipment.
3. Treatment (Sec. 266.235)
    a. Treatment Clarification. In the proposed Sec. 266.235, we 
allowed treatment of LLMW by generators in a tank or container covered 
by the provisions of their NRC or NRC Agreement State licenses, but we 
excluded ``thermal treatment, such as incineration.'' The proposal was 
intended to make the storage and treatment conditional exemption 
consistent with the types of treatment NRC currently allows in a tank 
or container. By excluding thermal treatment we inadvertently have 
excluded some treatment (for example, drying processes) which the NRC 
has allowed in tanks or containers. It was not our intent to limit 
treatment currently allowable in tanks and containers. We, therefore, 
revised the regulatory language in Sec. 266.235. Our clarification 
reflects the level of flexibility originally intended. As we explain 
below, however, forms of treatment that are done in units other than 
tanks and containers are not exempt from RCRA Subtitle C requirements. 
Treatments such as incineration, molten salt and super critical water 
oxidation would not be exempt and would require a RCRA permit.
    b. Comments received on treatment. We heard from a number of 
commenters regarding the conditional exemption for treatment of LLMW in 
tanks and containers. As discussed below, the majority of the 
commenters approved of the conditional exemption for treating LLMW at a 
generator's NRC licensed facility in tanks and containers, many noting 
that this option would provide a valuable opportunity to process waste 
at their facilities for safer storage and disposal. However, a number 
of commenters requested that we consider expanding the scope of the 
exemption to include thermal treatment, while a few commenters 
requested that we not allow generators to conduct any form of treatment 
without a RCRA permit.
    i. EPA should reconsider allowing treatment. We heard from several 
commenters who specifically requested that EPA reconsider any exemption 
of any storage or treatment activities involving LLMW from the RCRA 
permitting requirements. One commenter believed that when it comes to 
LLW and LLMW, the NRC appears to be more concerned with radionuclides 
than the potential chemical hazards. Thus the commenter said EPA should 
consider which treatment and storage processes, as defined under RCRA, 
require permitting and which processes may be exempted due to small 
scale, low risk of personal or environmental hazard, or similar 
concerns.
    Another commenter, citing experience as a fully licensed and 
permitted mixed waste TSDF, is concerned that the treatment, 
transportation, and disposal exemptions are premised upon a generator 
being able to treat its waste properly to meet LDR requirements. The 
commenter stated that experience has proven treatment to be a highly 
technical process requiring the proper equipment, the proper treatment 
formulae, and careful monitoring. The commenter noted that a treatment 
failure could result in the subsequent closing of the ``disposal 
facility as a RCRA Subtitle C facility, if the waste cannot be 
retrieved or if its hazardous constituents cannot be delisted.''
    Another commenter stated the treatment exemption is redundant 
because generators already are allowed to treat and store RCRA wastes 
(including LLMW) without a RCRA permit within 90 days, and questioned 
whether we intended to capture the spectrum of legacy wastes. The 
commenter opposed our extension of the conditional exemption to legacy 
wastes. The commenter alleged that many wastes have already been stored 
for numerous years despite existing treatment and disposal capacity 
because of cost reasons. The commenter stated that the exemption would 
allow LLMW generators to further delay the treatment and disposal of 
legacy wastes. The commenter concluded that extended treatment and 
storage of LLMW is in no way protective of human health or the 
environment.
    We disagree with the commenters' assertions that the storage and 
treatment conditional exemption is not protective of human health and 
the environment. We agree that the NRC licensing framework for storage 
and treatment of LLMW is geared primarily to protection against 
radiological hazards through treatment and containment of 
radionuclides. However, one of Congress' purposes in establishing the 
NRC is to ``advance the goals of restoring, protecting, and enhancing 
environmental quality, and to assure public health and safety.'' (See 
Energy Reorganization Act of 1974, Pub. L. 93-438, 42 U.S.C. 5801(a)).
    This statutory purpose is reflected in NRC's mission statement. 
``The mission of the U.S. Nuclear Regulatory Commission (NRC) is to 
ensure adequate protection of the public health and safety, the common 
defense and security, and the environment in the use of nuclear 
materials in the United States.'' (See http://www.nrc.gov.) Therefore, 
EPA and NRC share a common mandate to protect human health and the 
environment.
    Moreover, we conducted studies and analyses to determine the 
protectiveness of the NRC's regulatory framework for managing LLW. (See 
64 FR 63497; Section VII., Supporting Documents.) We determined that 
the various management requirements with regard to treatment, primary 
and secondary containment, inspections, etc., provide protection for 
the hazardous constituents in the mixed waste that is comparable to the 
protection provided by RCRA. We found that NRC has extensive experience 
with waste compatibility and stability. For example, NRC requires 
facilities to consider the chemical properties (including ignitable, 
reactive, and

[[Page 27232]]

explosive properties) of their LLW both in the design of the LLW 
facility, and in writing the standard operating procedures for the 
facility and associated waste handling systems, storage containers, and 
storage areas to prevent accidental mixing of incompatible wastes. The 
intent of the NRC licensing and EPA RCRA programs are equivalent in 
that both programs require the anticipation, recognition, and 
prevention of accidental ignition, reaction of reactive wastes, 
releases, explosions, and fume generation resulting from improper 
mixing procedures or from the inherent instability of some wastes.
    Our studies also included a review of the storage and treatment 
compliance record of a number of licensees. Violation rates at these 
facilities compared favorably with RCRA facilities and demonstrate that 
NRC licensed facilities operate under a regulatory scheme that assures 
that waste is protectively managed. Based on our studies we concluded 
that NRC storage and treatment regulations and license requirements 
regarding storage and treatment are at least as stringent and 
protective of human health and the environment as RCRA's Subtitle C 
system. (See ``Comparison of the EPA's RCRA Requirements and the NRC's 
Licensing Requirements for the Treatment [In Tanks & Containers] and 
Storage of Low-Level Mixed Wastes at Nuclear Facilities,'' Final 
Document, April 2001, Ref. 4.) Therefore, we will allow NRC licensees 
to treat LLMW in tanks and containers. We note that today's rule is 
consistent with existing RCRA regulatory interpretation which allows 
treatment in tanks and containers by a generator without a permit. (See 
51 FR 10168.)
    With regard to the commenter who was concerned with generators' 
being able to treat their wastes to the applicable LDRs and the 
potential consequences a LLRWDF, we note that the majority of the 
volume reduction and chemical stabilization and encapsulation processes 
that these generators currently conduct at their facilities in tanks 
and containers are no different from the treatment processes used at 
RCRA permitted commercial TSDFs. While some generators may have to 
request a license modification to change their current processes (for 
example, add a stabilization step) to meet the LDRs, this adjustment 
would be approved under the auspices of the generator's license. In 
addition, an NRC or NRC Agreement State licensed LLRWDF may require 
testing data, and/or conduct verification testing itself, to document 
that wastes meet the applicable LDR treatment standards prior to the 
acceptance and subsequent disposal of these treatment residues. In any 
event, there are potentially significant enforcement consequences if 
the waste does not attain LDRs, providing a strong incentive for the 
parties involved to meet LDR levels. If a generator is uncertain of its 
ability to treat its waste to comply with LDRs, the generator has the 
option of sending the waste to a permitted TSDF for treatment, or of 
continuing to store the waste until permitted treatment capacity 
exists.
    We disagree with the commenter's characterization of legacy wastes 
as wastes that could have been treated years ago, but were not because 
of cost issues. As the commenter noted, many of these wastes have been 
in storage for several decades; these wastes remained in storage 
because legacy wastes, by definition, are wastes for which treatment or 
disposal capacity does not exist. Although the federal government and 
industry have conducted significant research on innovative waste 
treatment and management methods, much more needs to be done before 
acceptable treatment processes and management methods are developed for 
all legacy wastes. In addition, siting of new low-level radioactive 
waste disposal facilities continues to be difficult.
    Finally, there appears to be some confusion on the part of 
commenters as to the time period allowed for treatment by a generator 
under this exemption. Today's rule allows generators to treat their 
mixed waste in tanks and containers at their facilities in accordance 
with the terms of their NRC or NRC Agreement State license without a 
permit and without a time constraint, in view of the protection 
afforded by the NRC scheme.
    ii. EPA should broaden the scope of treatment in the storage and 
treatment conditional exemption. We heard from a number of commenters 
who specifically requested that we consider widening the scope of the 
conditional exemption to approve thermal treatment if allowed under the 
generator's NRC or NRC Agreement State license. Many of these 
commenters were concerned that the prohibition proposed in Sec. 266.235 
on conducting any form of thermal treatment would inappropriately bar 
otherwise sound LDR treatment options for mixed waste containing 
organic constituents. Though these commenters did not raise objections 
to our ban on incineration, they believed that the practical effect of 
the thermal treatment prohibition was that treatment of any mixed waste 
containing organic constituents would have to be conducted off-site at 
RCRA permitted mixed waste commercial treatment, storage, and disposal 
facilities, assuming any are available. Some of these commenters noted 
that there are numerous thermal technologies that are not, or do not 
rely on incineration or ``open flame combustion,'' including 
evaporation, steam reforming, high temperature catalytic oxidation, 
super critical water oxidation, and molten salt technology. Several of 
these commenters stated that a blanket prohibition against thermal 
treatment could deter the development of new and innovative treatment 
processes. They argued that a complete ban on any type of thermal 
treatment was overly broad and unnecessary, limiting otherwise viable, 
cost effective, and environmentally sound treatments available to NRC 
licensees. These commenters further suggested that the exemption should 
provide for a risk-based variance mechanism from any thermal treatment 
prohibition because they believe such an approach would provide a 
strong incentive for innovative waste treatment vendors to develop new 
and protective treatment methods.
    We also heard from several commenters who wanted any treatment 
option approved in an NRC or NRC Agreement State license to be 
permissible under the storage exemption. They suggested that we clarify 
treatment to reflect this. Some of these commenters noted that 
clarification is necessary because the text proposed in Sec. 266.235 
could be misinterpreted to limit treatment types to solidification, 
neutralization, or stabilization, when in fact, additional forms of 
treatment (other than thermal treatment) may be allowed under the NRC 
or NRC Agreement State license. Another commenter recommended that we 
remove ambiguity by specifying exactly what treatment options the 
generator can expect to apply. That is, the EPA should specify by code 
which treatment options are considered allowable treatment 
technologies, or prohibited treatment technologies. Two of the 
commenters also recommended that EPA either delete the specific 
examples referenced in the second sentence of proposed Sec. 266.235 or, 
alternatively, make clear that they are only examples to eliminate 
ambiguity. Commenters also suggested that the conditional exemption 
should be modified to allow for treatment in other than tanks and 
containers, provided that it is carried out within a controlled area 
such as a laboratory, is performed under NRC or NRC Agreement State

[[Page 27233]]

regulations and approval, and that there are no uncontrolled releases 
of hazardous substances to the environment. These commenters believe 
that the NRC safeguards are an adequate alternative to EPA permit 
requirements for most aspects of treatment facility operations.
    We agree that the scope of the conditional exemption should include 
any type of treatment that generators can conduct in tanks and 
containers at their facilities in accordance with the terms of their 
NRC or NRC Agreement State license. As stated, we have revised the 
regulation language to drop the blanket restriction on thermal 
treatment since we had not intended in the proposal to limit the forms 
of treatment that could be conducted in licensed tanks or containers.
    We are not, however, extending the storage and treatment 
conditional exemption to all forms of treatment that might be allowed 
under a generator's NRC or NRC Agreement State license. We did a 
thorough comparison of NRC's requirements for storage and treatment in 
tanks and containers with RCRA Subtitle C's requirements and concluded 
that our regulations and guidance governing generator storage and 
treatment in tanks and containers and NRC's are generally equivalent. 
(See our background document ``Comparison of the EPA's RCRA 
Requirements and the NRC's Licensing Requirements for the Treatment [In 
Tanks and Containers] and Storage of Low-Level Mixed Wastes at Nuclear 
Facilities.'') We did not do a comparative study comparing what NRC 
would require for treatment that occurs outside of tanks and containers 
with RCRA subtitle C requirements. For example, we did not evaluate the 
requirements NRC would impose on a LLW incinerator with the 
requirements that EPA would impose under 40 CFR part 264 subpart O on a 
hazardous waste incinerator.
    For these reasons, consistent with current regulations for 
accumulation of waste in tanks and containers, we are limiting the 
allowable forms of treatment under the conditional exemption for 
storage of LLMW to only those forms that can occur in tanks and 
containers. Treatment that could qualify includes, but is not limited 
to, those treatment types that occur within a tank or container, such 
as certain forms of thermal treatment, neutralization, solidification, 
or other forms of stabilization. The rule no longer cites these 
examples, since they may appear exclusive. We do not want to exclude 
all technologies that might rely on some degree of heat.
    Finally, because this conditional exemption relies upon waste 
handlers monitoring their compliance with the conditions, we do not 
believe that a risk-based variance approach is appropriate. 
Specifically, we do not have the authority to require the NRC or NRC 
Agreement States to implement the risk-based variance approach for 
specific treatment technologies (such as incineration). Generators 
seeking authority to construct and operate a complex treatment process 
unit such as an incinerator can apply for a RCRA treatment permit under 
the current regulatory system. Therefore, a variance process would 
duplicate the current RCRA permitting program.
4. Implementation of the storage and treatment conditional exemption
    a. Self-implementation. The storage and treatment conditional 
exemption is triggered by the claimant who generates and stores the 
waste. To be eligible for a conditional exemption for stored low-level 
mixed waste you must notify the Director of your claim for exemption of 
your storage unit containing low-level mixed waste and of your 
compliance with all the conditions in Sec. 266.230. You do not need to 
wait for approval from the State or Region with jurisdiction over the 
RCRA mixed waste program. However, you must be able to demonstrate that 
your claim is accurate, that your waste is eligible, and that you meet 
the conditions and other requirements specified in this rule. The 
Director may use inspection and information collection authorities to 
verify whether your waste met the eligibility provisions, you are 
meeting the conditions, and you are complying with all of the 
requirements.
    RCRA section 3008(a) gives the Director the authority to take 
enforcement actions when you fail to meet any of the provisions of the 
conditional exemption. The appropriate regulatory authority can take a 
direct enforcement action against you when you fail to meet a specific 
RCRA requirement for your waste under this conditional exemption such 
as the notification or recordkeeping requirement. When you lose your 
exemption for your waste due to failure to meet a condition of the 
exemption, your waste is no longer exempted and it becomes a RCRA 
hazardous waste. The appropriate regulatory authority can take 
enforcement action against you for managing a hazardous waste without 
complying with RCRA hazardous waste requirements. As is the case under 
current RCRA regulations, concerned citizens also can bring to the 
regulator's attention any circumstance that might aid the authorities 
in monitoring and enforcement efforts. A concerned citizen also may 
file a suit under RCRA section 7002 against a generator for failure to 
meet any of the provisions of the conditional exemption. Lastly, the 
Director can take actions using authority under section 7003 and 
section 3013 of RCRA, 42 U.S.C. 6973, when it is determined that there 
may be an imminent and substantial endangerment to human health or the 
environment.
Comments Regarding Self-Implementation
    We received few comments on self-implementation. One commenter who 
supported our approach indicated it was a practical way to implement 
the exemption and consistent with other EPA exemption programs, such as 
the Military Munitions Rule. We agree. Another commenter objected to 
self-implementing rules as not protective, and suggested we clearly 
specify enforcement and penalty provisions. Our studies conclude that 
regulation by NRC or NRC Agreement States of low-level radioactive 
waste protects human health and the environment during storage and 
treatment. In addition, our approach requires reporting of any failure 
to comply with the conditions of the exemption and the automatic loss 
of the exemption. We note this is similar to the current system under 
RCRA in which we rely upon reporting requirements and inspections for 
oversight.
    The Director continues to have authority to inspect or collect 
information to verify independently the safe management of stored 
exempt waste. If a licensee reclaims a lost exemption, any violation 
must be corrected prior to the reclaim of the exemption, and an 
explanation of steps taken to prevent recurrence must be described in 
the reclaim notification. The Director can impose additional 
requirements or conditions on a licensee reclaiming an exemption, if 
appropriate. If violations of conditions or requirements demonstrate 
repeated and serious failure to comply, the Director may revoke a claim 
or reclaim of the conditional exemption. We expect that revocation 
would be an unusual event.
    b. Loss of the storage and treatment conditional exemption 
(Sec. 266.240). If you previously claimed a storage and treatment 
conditional exemption from hazardous waste regulations and then fail to 
meet a condition listed at Sec. 266.230, we continued to require at 
Sec. 266.240 that you report the specific condition to the Director, 
and the NRC or NRC Agreement State in writing by certified delivery 
within 30 days of

[[Page 27234]]

learning of the failure. Your report must be signed by your authorized 
representative certifying that the information is true, accurate, and 
complete. This report must include the condition(s) you failed to meet, 
a description of the LLMW and storage location at the facility; and the 
date(s) on which you failed to meet the condition(s). If the failure to 
meet any of the conditions may endanger human health or the 
environment, you must also immediately notify the Director orally 
(within 24 hours), and follow up with written notification within five 
days. Failures that may endanger human health or the environment 
include, but are not limited to, discharge of a CERCLA reportable 
quantity or other leaking or exploding tanks or containers, or 
detection of radionuclides or hazardous constituents in the leachate 
collection system of a storage area. If the failure may endanger human 
health or the environment, you must follow the provisions of your 
emergency plan. Note that failure to meet recordkeeping and other 
requirements may subject you to an enforcement action requiring 
compliance, fines and penalties, or both.
    We also clarified in Sec. 266.240(b) that the Director may 
terminate your conditional exemption or add conditions to your 
exemption for serious or repeated noncompliance with any requirement(s) 
of subpart N. This language had appeared under Sec. 266.245(b) in the 
proposal.
    Under Sec. 266.240, your waste automatically loses the storage and 
treatment exemption when you fail to meet any of the conditions in 
Sec. 266.230. If your stored waste no longer meets one or more of the 
exemption conditions, that waste will be fully regulated under RCRA 
Subtitle C as a hazardous waste. The conditions set forth in 
Sec. 266.230 are important, in conjunction with your NRC license, to 
ensure that LLMW is properly managed to avoid potential adverse impact 
on human health or the environment. In addition, the Director may 
terminate your ability to claim a conditional exemption for your waste 
and storage unit, or require you to meet additional conditions to claim 
a conditional exemption, for serious or repeated noncompliance with any 
requirement(s) of subpart N. The potential loss of the exemption 
resulting from failure to meet a condition will provide a strong 
incentive to properly manage the waste.
Response to Comments on Loss of the Storage and Treatment Conditional 
Exemption
    We heard from a number of commenters in response to our specific 
request on whether the conditional storage and treatment exemption 
should be lost when any of the LLW storage requirements of the NRC or 
NRC Agreement State license are not met, or only when violations have 
occurred which may result in an adverse health or environmental impact. 
Several of these commenters supported losing the storage and treatment 
exemption when any of the LLMW storage requirements of the NRC or NRC 
Agreement State license are violated. These commenters believed that 
such a provision was a strong incentive for ensuring that the waste was 
managed properly. One of these commenters also requested that we retain 
a broad list of exemption violations because a limited list effectively 
suggests regulatory compliance is unimportant. A different commenter 
urged us to define the exemption conditions as specifically as possible 
to improve enforceability.
    The majority of commenters, however, opposed our proposal that the 
generator would lose the storage and treatment exemption when any of 
the conditions of the exemption were violated. These commenters asked 
that we increase our specificity and limit the loss of exemption to 
violations resulting in actual endangerment of human health or the 
environment. Many of these commenters were concerned that the storage 
and treatment conditional exemption could be lost due to relatively 
minor administrative violations. In addition, although one of these 
commenters agreed that generator requirements are necessary to 
demonstrate that the waste has been properly managed, others believed 
that the failure to comply with recordkeeping requirements does not 
represent an imminent threat to public health and safety.
    We also heard from a number of commenters who believed that we 
should build upon this concept of not automatically terminating a 
storage and treatment exemption for failure to comply with all of the 
provisions of the NRC or NRC Agreement State license to preclude also 
the automatic termination of an exemption for failure to meet any of 
the conditions listed in Sec. 266.230(a)-(g). These commenters believed 
that we should not revoke an exemption because there was a violation of 
a condition only. One of these commenters cited our own research, which 
indicated that NRC inspections would ensure protection of human health 
and the environment during the storage period.
    These commenters raised a number of valid points. Specifically, we 
agree that generators should not lose their exemption because of 
violations of their NRC or NRC Agreement State licenses that do not 
bear directly on whether the waste is being managed protectively on a 
day-to-day basis. Also, we have defined the exemption conditions 
specifically to improve enforceability. We note that NRC or NRC 
Agreement States can also enforce if LLW is improperly stored.
    We did not intend to create a system that would render waste 
``hazardous'' even though it is being managed in conformance with all 
the substantive conditions that EPA found to be protective. Although 
the potential for immediate return to RCRA regulation is consistent 
with the Military Munitions Rule, and may be necessary in some 
instances, we believe that recordkeeping violations (such as 
maintaining paperwork on training certifications) that you could 
promptly remedy, should not result in automatically subjecting you to 
all applicable RCRA permitting requirements. We have modified the 
conditions of the exemption so that you do not lose the storage and 
treatment conditional exemption automatically for a violation of a 
recordkeeping requirement associated either with your NRC or NRC 
Agreement State license, or today's rule. However, recordkeeping is 
important. Violations will subject you to enforcement, and repeated and 
serious violation of recordkeeping or other requirements could result 
in revocation of your claim or reclaim of a storage and treatment 
conditional exemption.
    Finally, many commenters also suggested a 30-day time period (or 
other period of time as agreed to by the agency) to reestablish 
compliance before a generator risks losing the exemption. The 
commenters noted that failure to meet exemption conditions subjects the 
waste generator to enforcement actions from the regulatory agency 
having jurisdiction. Many of these commenters stated that the NRC or 
NRC Agreement State regulations or license conditions in effect during 
this time period should be sufficient to ensure protection of human 
health and the environment. Two of these commenters said this 30-day 
time period (or another time period agreed to by EPA) and the 
opportunity to reestablish regulatory compliance should be allowed even 
in situations where noncompliance results in endangering human health 
or the environment. We disagree; however, facilities have other options 
for

[[Page 27235]]

reclaiming the storage and treatment conditional exemption as soon as 
practicable.
    As we discussed above, we modified the list of conditions so that 
only those provisions that we believe pertain directly to safe 
management of the waste are included. As a result of these changes, the 
storage and treatment conditional exemption will not be lost 
automatically for failure to meet a recordkeeping requirement (unless 
the Director determines that it indicates a serious or recurring 
problem or decides to revoke the reclaimed exemption under 
Sec. 266.245[b]). We have concluded the conditions are, however, the 
minimum necessary to ensure that LLMW will be properly managed. We 
believe that the threat of losing the exemption for failure to meet any 
one of the conditions listed at Sec. 266.230 will provide a strong 
incentive to properly manage the waste. We note that if you lose the 
storage and treatment exemption, the affected waste would return to the 
RCRA system as hazardous waste, and you would have 90 days (or up to 
270 days if you are a small quantity generator) to accumulate the waste 
before it must be either shipped off-site for treatment and disposal or 
stored in a RCRA permitted storage unit. You could also reclaim your 
storage and treatment exemption, as long as you again meet the 
conditions in Sec. 266.230 and submit the required reclaim 
notification.
    c. If you lose your storage and treatment exemption can it be 
reclaimed? (Sec. 266.245). This conditional exemption final rule 
creates a process for the claim of a storage and treatment exemption, 
for the loss of the exemption in Sec. 266.240, and for reclaim of the 
exemption in Sec. 266.245. The storage and treatment exemption is 
automatically lost at the time of noncompliance with a condition. The 
Director does not need to take action to revoke the exemption. However, 
you may reclaim a lost conditional exemption if you again meet the 
conditions in Sec. 266.230. You must send notification of the loss of 
the storage and treatment exemption due to a failure to meet a 
condition before you can reclaim the exemption. To reclaim, you must 
send the Director a notice by certified delivery that you are 
reclaiming the exemption. Your notice must be signed by your authorized 
representative certifying that the information contained in your 
reclaim notice is true, accurate, and complete. In your notice you must 
do the following:
     Explain the circumstances of the failure;
     Certify that you have corrected each failure that caused 
you to lose the exemption and that the waste again meets all conditions 
as of the date you specify;
     Describe plans you have implemented listing specific steps 
you have taken to ensure that the conditions are met in the future; and
     Include any other information you want the Director to 
consider when reviewing your notice reclaiming the exemption.
    The storage and treatment exemption is automatically restored if 
you reclaim the exemption and meet these conditions. However, the 
Director may terminate a reclaimed conditional exemption if he finds 
that your claim is inappropriate based on factors including, but not 
limited to, the following: you have failed to correct the problem; you 
explained the circumstances of the failure unsatisfactorily; or you 
failed to implement a plan with steps to prevent another failure to 
meet the conditions of Sec. 266.230. In reviewing a reclaimed 
conditional exemption under this section, the Director may add 
conditions to the exemption to ensure waste management during storage 
and treatment of the LLMW will protect human health and the 
environment. The language of the final rule has been reworded slightly 
for clarity, but is very similar to the proposal.
Comments Received on Reclaiming a Storage and Treatment Exemption
    Many of the commenters who addressed the issue of reclaiming a 
storage and treatment exemption suggested that we provide a 30-day 
period during which a failure to meet a condition could be corrected 
without loss of the exemption. A small number of commenters suggested 
we impose a 90-day waiting period before a lost exemption could be 
reclaimed. One reason given for this waiting period was to allow 
regulators time to review documentation and conduct inspections before 
reinstating the exemption. A few commenters stated that the exemption 
should be maintained unless the violations endanger public health and 
safety. Another commenter stated the reclaimed exemption should apply 
both automatically and retroactively from the date of the loss. Yet 
another commenter stated that a licensee who loses a conditional 
exemption should not be allowed to reclaim it, and that the rule should 
contain heavy penalties for failure to meet one or more of the 
conditions.
    Based on our studies of NRC storage requirements coupled with the 
conditions we have specified, we find that LLMW will be safely managed 
as LLW. We believe that because the reinstatement is available, it is 
appropriate that a licensee who fails to meet a condition is required 
not only to correct the failure, but also to implement procedures that 
would prevent such a failure from recurring. A large quantity generator 
of hazardous waste generally has 90 days to ship waste to a treatment 
or disposal facility before a permit for storage is required. This time 
period should provide sufficient time to correct most violations of the 
conditions. We have also indicated that the Director may revoke the 
reclaimed exemption if he finds the reclaim to be inappropriate. In 
addition, the Director may add conditions which must be met for a 
reclaimed exemption if deemed necessary to protect human health and the 
environment. Thus, we believe that the approach we have developed here, 
which allows EPA to devote its attention to facilities that raise 
particular concerns (for example, through inspections following the 
receipt of a reclaim notification), is protective, and more 
appropriate, than a scheme that would impose a 90-day waiting period on 
all facilities reclaiming the exemption. Such a scheme would make it 
very difficult for the generator to obtain reinstatement before 
becoming subject to the requirement to obtain a RCRA permit--a result 
that is unnecessary and undesirable since the NRC scheme is protective 
without a RCRA permit, and since EPA does not anticipate that it would 
typically choose to expend the resources to inspect and review reclaim 
requests during the proposed 90-day period. After the failure has been 
discovered by the generator or an inspector, but before a reclaimed 
exemption is in place, the generator may be subject to an enforcement 
action requiring compliance, or monetary sanctions, or both for 
violations that occur as a result of the loss of the exemption.
    We also disagree with the commenter who stated that a licensee who 
loses a conditional exemption should not be allowed to reclaim it. 
Safeguards provided by NRC or NRC Agreement State oversight, coupled 
with the reclaim process we have outlined will provide both appropriate 
enforcement and a mechanism to correct any failure of the conditions. 
We believe these safeguards will deter noncompliance and will ensure 
that any violations are quickly corrected.
    d. Recordkeeping requirements for the storage and treatment 
exemption (Sec. 266.250).
    An important part of assuring that a generator is complying with 
the

[[Page 27236]]

conditions in today's rule is mandating the generator perform quarterly 
inspections of the units and drums or containers storing exempted 
waste, as well as conduct an inventory of the waste to prevent loss or 
other mismanagement. You must keep records of these activities to 
assure the Director of consistent compliance with exemption conditions. 
The annual inventory records, coupled with records of wastes placed in 
storage and records of shipments for treatment or disposal, will enable 
an inspector or other regulator to view a complete file of all 
conditionally exempt LLMW stored.
    In our proposal, we used language similar to Sec. 266.230 in 
Sec. 266.250. Our intent was to ensure the availability of a complete 
record for inspectors to account for all stored conditionally exempt 
LLMW. Because this language appeared in two places in the proposal--
Secs. 266.230(f) and 266.250--it caused confusion. In the final rule we 
have eliminated the redundancy and combined all requirements relating 
to recordkeeping in Sec. 266.250. Generators are responsible for 
demonstrating that the conditions have been and are being met, and must 
retain the necessary records to substantiate that claim. Violations of 
recordkeeping or other requirements could subject you to penalties and 
enforcement actions and, if violations are repeated and serious, could 
result in the revocation of your storage and treatment conditional 
exemption claim.
Comments Received on Recordkeeping for the Storage and Treatment 
Exemption
    A few commenters addressed the types of records we are requiring. 
One commenter recommended we delete this section because NRC and 
Agreement States already have requirements for inventory and records 
management, objected that the frequency may conflict with keeping 
occupational exposures low, and requested an explanation for three-year 
record retention if not required by NRC. In response, we are retaining 
Sec. 266.250 because these records relate to conditionally exempt waste 
which can only be identified through these records. We have clarified 
that the frequency of inventory is annual, thus minimizing the 
potential for occupational exposure. The rule requires record retention 
for three years after disposal of the waste because this is the general 
standard for RCRA record retention. In the absence of the conditional 
exemption ( for example, if you lose the exemption), the waste would 
have to be managed under RCRA Subtitle C and records relating to the 
waste need to be available. Note that in some instances, NRC may 
require record retention for longer periods, in which case the records 
must be retained for the time specified by NRC requirements under 10 
CFR part 20 (or NRC Agreement State requirements). NRC requirements 
always apply.
    e. Return to RCRA of LLMW no longer eligible for the storage and 
treatment exemption (Sec. 266.255). For LLMW containing short-lived 
radionuclides, the storage and treatment conditional exemption will be 
in effect only until the radionuclide in 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. Under Sec. 266.255 of the final rule, 
your waste is no longer eligible for the conditional exemption when one 
of two things occurs: (a) When ``your LLMW has met the requirements of 
your NRC or NRC Agreement State license for decay-in-storage and can be 
disposed of as non-radioactive waste * * * '' or (b) when ``your 
conditionally exempt LLMW, which has been generated and stored under a 
single NRC or NRC Agreement State license, is removed from storage. * * 
* However, your waste may be eligible for the transportation and 
disposal conditional exemption at Sec. 266.305.'' In the first 
instance, our intent with this language is to clarify the applicability 
of the conditional exemption during a decay-in-storage time period and 
identify when RCRA Subtitle C jurisdiction resumes. In the second 
instance, we seek to make clear that all RCRA regulatory requirements 
apply during transport to a treatment or disposal facility, unless the 
waste qualifies for the transportation and disposal exemption at 
Sec. 266.305.
    i. How does the storage and treatment exemption 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 
monitoring equipment) is indistinguishable from background levels. This 
process is known as decay-in-storage. Our final rule facilitates decay-
in-storage by allowing LLMW with short-lived radionuclides to remain in 
storage until it is indistinguishable from background levels of 
radioactivity. The time allowed for LLW decay-in-storage is based on 
the radionuclides (and their half-lives) specified in a low-level waste 
generator's NRC license. Such management of LLW reduces worker 
exposures to radionuclides since workers are not exposed to wastes in 
containers during preparation or shipment to treatment and disposal 
facilities. Once the specified radionuclide decay has occurred, the 
waste may be disposed of as non-radioactive waste after you ensure that 
all radioactive material labels are rendered unrecognizable. (See 10 
CFR 35.92 and 10 CFR 20.2001.) On that date, your waste is subject to 
hazardous waste regulation under the relevant sections of 40 CFR parts 
260-271, and the time period for accumulation of a hazardous waste as 
specified in 40 CFR 262.34 begins.
    ii. Change from proposed language. This language is essentially 
unchanged from the proposed storage and treatment exemption with the 
exception of the reference to ``under a single NRC or NRC Agreement 
State license,'' where the proposal stated ``when your waste is 
transported off-site.'' The change was incorporated here to be 
consistent with the eligibility requirements in Sec. 266.225 of the 
final rule. We discuss the reason for this change in this preamble 
under section VI.A.1.
    iii. Comments received on storage time limits and decay-in-storage. 
The comments we received on time limits for storage and decay-in-
storage focused upon addressing the three areas on which we requested 
comment in the preamble. They are discussed below.
Determining RCRA Reentry for Radioactive Decayed Waste
    In our proposal, we stated that ``We would appreciate comments 
regarding the standard to use for determining when the decayed waste 
would reenter RCRA Subtitle C management.'' (See 64 FR 63471.)
    In both the proposed and final rule at Sec. 266.255(a), the 
standard for determining RCRA reentry is when your LLMW has met the 
requirements of your NRC or NRC Agreement State license for decay-in-
storage and can be disposed of as non-radioactive waste. At that point, 
management of any radionuclide in the waste is no longer required by 
the NRC or NRC Agreement State license. We picked this time frame 
because it is at this point that dual regulation ceases. It is also 
familiar to NRC licensees. Implementation will be clear, and will not 
conflict with NRC regulations.
    A number of commenters wrote to us on this question. All but two 
supported our proposal, which indicated our reliance on NRC management 
during decay-in-storage, and transfer to EPA's RCRA Subtitle C 
oversight when decay is complete for the radionuclides

[[Page 27237]]

allowable under the NRC or NRC Agreement State license provisions. The 
two commenters who did not support the time frame we proposed were 
opposed to any conditional exemption of LLMW from RCRA Subtitle C 
management. These commenters believe that having waste exit the RCRA 
cradle-to-grave management system is contrary to the fundamentals of 
RCRA.
    The other commenters agreed the transfer should occur on the date 
when NRC considers the decay complete--when the radionuclide with the 
longest half-life in a container has decayed as specified in the 
license (generally ten half-lives), and when the radiation emitted from 
the unshielded surface of the waste is not above background levels when 
measured by appropriate monitoring equipment. One commenter suggested 
that RCRA regulations should apply when the licensee removes the 
radiation label from the container--when the radiation emitted is 
indistinguishable from background levels--since RCRA reentry on this 
date would ensure continuous regulatory oversight.
    We appreciate the support of the commenters who agree with our use 
of the NRC standard for decay-in-storage. Once the waste can be 
disposed of as non-radioactive waste, the waste is subject to hazardous 
waste regulation, and time periods for accumulation apply. We do not 
agree with the commenters who broadly oppose any conditional exemption 
because, as stated earlier, we have found that NRC or NRC Agreement 
State management of this waste during storage, coupled with the 
conditions we have specified in Sec. 266.230, will ensure safe storage. 
In the final rule, we have retained the language in the proposal. We 
also believe that the lower cost of disposing of hazardous waste rather 
than LLMW, coupled with RCRA Subtitle C generator time limits (90-270 
days depending on applicable regulations) will ensure timely waste 
management.
Appropriateness of Time Limit for Storage and Treatment Exemption
    In our proposal, we made the following statement,

    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. (See 64 FR 63471.)

    The time limit for decay-in-storage is established by the terms of 
the NRC license. Under a decay-in-storage scenario, LLMW is no longer 
subject to NRC regulation when it has met the requirements of your 
license for decay-in-storage and can be disposed of as non-radioactive 
waste. On that date your waste is subject to hazardous waste regulation 
under the relevant sections of 40 CFR parts 260-271, and the time 
period for accumulation of a hazardous waste as specified in 40 CFR 
262.34 begins. 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, if needed, to meet LDR 
treatment standards, and disposed of at a RCRA compliant facility. 
Thus, the RCRA accumulation time for a formerly mixed--now solely 
hazardous--waste begins when the radionuclide with the longest half-
life in a container has decayed as specified in the license (generally 
ten half-lives), and 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 limit the time 
for decay to ten half-lives only, 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 Sec. 266.255 to 
ensure that the LLMW does not emit radiation that is above background 
levels as measured by appropriate monitoring equipment. In the final 
rule language, we defer to the NRC practice for determining when the 
waste can be managed as non-radioactive and radioactive labels can be 
removed.
    For those mixed wastes which are not undergoing decay-in-storage, 
the majority of commenters, including one State, agreed that the length 
of time that a LLMW could be stored under the conditional exemption 
should be that which is allowed for LLW under a facility's NRC or NRC 
Agreement State license, because of the significant management 
safeguards in place while the mixed waste is subject to NRC or NRC 
Agreement State regulations. Some commenters indicated that the cost of 
long-term storage and the rising trend in disposal costs would provide 
an incentive for generators to dispose of the waste in a timely manner 
to limit their overall costs for waste management. One commenter stated 
the following,

    ``Limiting the conditional exemption by an artificial clock will 
not improve on the safe and responsible management of LLMW under the 
NRC's jurisdiction. Instead it will * * * divert limited resources. 
* * * ''

    A few commenters, including several States, provided suggestions 
for time limits we should impose for storage. They suggest lengths of 
time from one year, to two years, to three years, to an unspecified 
limit based upon the availability of treatment and disposal capacity, 
particularly for legacy wastes. Another commenter suggested a 5-year 
limit be imposed. An organization of state regulators commented that 
the quantity of waste accumulated is affected by the time period 
allowed and suggested that EPA set a limit either of time (3 years) or 
of capacity (volume). Other commenters suggested we set a capacity 
limitation of up to 10 kg because the disposal of small quantities of 
LLMW can be inefficient and extremely costly. Another commenter 
suggested that time limits be imposed through site-specific variances, 
in combination with capacity limitations and conditions for storage.
    We also heard from two commenters, including one State, who 
believed a time limit was inappropriate because they opposed any 
exemption from RCRA Subtitle C regulations, and because NRC does not 
limit the volume of waste that can be stored on-site. A third commenter 
noted that RCRA prohibits storage of mixed wastes beyond specified 
periods, and no such storage prohibition exists in AEA-based 
regulations.
    We agree with the large number of commenters who stated that we 
should adopt the NRC approach and not establish a limit on the length 
of time during which conditionally exempt LLMW may be stored. Their 
underlying argument was that the waste is safely stored if provisions 
of storage in the generator's NRC or NRC Agreement State license are 
being met. Our study of radioactive material storage indicated that NRC 
requires a licensee to maintain sufficient storage space to safely 
manage these wastes. For example, a generator must maintain sufficient 
aisle space for inspections and emergency response actions, and 
safeguards to limit exposures to ALARA. While NRC does not specifically 
limit the volume of waste stored, it does place a maximum on the 
radioactivity a licensee can manage. This provision of an NRC license 
serves to limit storage volumes. In addition, NRC discourages the 
accumulation of wastes that can be treated and/or disposed of. (See 
Generic Letter 81-38, ``Storage of Low-Level Radioactive Wastes at 
Power Reactor Sites.'') This fact, combined with cost considerations--
that long term storage has associated management costs, and that the 
rising trend in disposal costs serves to encourage immediate rather

[[Page 27238]]

than delayed disposal--provides an incentive to generators to treat and 
dispose of wastes and avoid accumulation.
    Another factor encouraging immediate disposal is the present 
uncertainty regarding access to existing LLRWDFs for many generators, 
given the present LLW Compact system. Our analyses of the 
protectiveness of the NRC regulatory framework for managing LLW 
indicated that LLMW would be stored in a manner that provided 
protection to human health and the environment equivalent to that based 
on EPA's RCRA Subtitle C system. To limit the storage time for wastes, 
including legacy wastes, further than time periods allowed by NRC or 
NRC Agreement States would subject generators to extraneous regulation 
without significantly reducing the likelihood of human health or 
environmental threats arising from stored LLMW. Commenters did not 
provide data which would assist us in establishing a non-arbitrary 
basis for choosing a time period for storage.
Potential Gap in Regulatory Coverage for Decayed Waste
    In our proposal, we invited comment on whether 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. We also requested that you do the following.

    ``* * * [I]ndicate 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.'' (See 64 FR 
63471.)

    We note that an NRC licensee is not required to monitor the waste 
immediately after decay of 10 half-lives to determine if the radiation 
emitted is indistinguishable from background levels. Prior to 
monitoring, there may be an interval when the waste is hazardous only. 
However, it is only when the waste is monitored and the radiation 
emitted declared indistinguishable from background levels that the 
radioactive waste labels on each container must be removed. Our final 
rule indicates in Sec. 266.255 that the waste would then be subject to 
RCRA Subtitle C jurisdiction for the hazardous wastes it contains.
    A number of commenters responded to our request regarding a gap in 
coverage for decay-in-storage wastes. Some of them asserted there would 
be no gap if we relied on NRC provisions which require the generator to 
obliterate the container's radiation label once the container has been 
surveyed by appropriate monitoring equipment, and the radiation level 
is determined to be indistinguishable from background levels. One 
commenter noted that NRC requires documenting the release of the 
material from NRC regulation. Such documentation provides a date on 
which appropriate RCRA Subtitle C accumulation time periods would 
start.
    Three commenters stated that if we did not conditionally exempt 
LLMW from the regulatory definition of hazardous waste, then no gap in 
coverage would occur. One of these commenters did note that for decay-
in-storage waste, if we finalized a conditional exemption, ``RCRA 
control would be gained upon destruction of the radioactive label 
affixed on the waste * * *''
    We appreciate hearing the suggestions of these commenters on 
eliminating a potential gap in regulation, and we agree that the date 
of the obliteration of the radioactive label (as the NRC requires) 
provides a documented and certain date for applying RCRA accumulation 
time periods.
    iv. Effect on biennial reporting. Under 40 CFR 262.41, a generator 
who ships any hazardous waste off-site to a treatment, storage or 
disposal facility; or who treats, stores or disposes of hazardous waste 
on-site must submit a biennial report covering those wastes. Newly 
generated low-level mixed wastes that are exempted under this rule may 
be subject biennial reporting in accordance with 262.41 since, as 
generated, they are hazardous. Wastes only become nonhazardous when 
they meet the eligibility criteria and conditions of subpart N. Wastes 
that are exempted under today's storage and treatment exemption may, as 
with other RCRA wastes, again be subject to the reporting requirements 
of 262.41 if the waste is further managed outside the scope of the 
exemption. The Hazardous Waste Report Forms and Instructions booklet 
(EPA Form 8700-13 A/B) for the required reporting year explains who 
must file the hazardous waste report, and can be found at http://www.epa.gov/epaoswer/hazwaste/data/brs01/forms.html
    Finally, it should be noted that today's final rule does not change 
the ability of states to impose reporting requirements above and beyond 
the Federal requirements, e.g., annual reporting or additional 
information about the generated, treated, recycled, or disposed 
hazardous waste.
    f. Enforcement and enforcement policy. You, as the RCRA generator 
and NRC licensee, must be able to document that your claim for an 
exemption is accurate, that your waste is eligible, and that you meet 
the conditions and requirements specified in this rule. The Director 
may use inspection and information collection authorities to verify 
whether you have met and continue to meet the eligibility criteria, the 
requirements, and the conditions.
    Facilities that fail to meet any of the conditions in Sec. 266.230 
for exemption will be subject to RCRA Subtitle C from the time that 
failure occurs. Utilities or other LLMW generators that claim the 
storage and treatment conditional exemption, but fail to store and/or 
treat the LLMW in compliance with the conditions of the exemption, no 
longer will be exempt from the applicable provisions of RCRA. Failure 
to meet requirements (in Secs. 266.225 and 266.250) may result in an 
enforcement action to ensure compliance, penalties and fines. Moreover, 
imminent and substantial endangerment provisions under section 7003 of 
RCRA will continue to apply to conditionally exempt mixed waste as a 
safeguard since the waste remains a statutory solid and hazardous 
waste, so EPA can act in the unlikely event of circumstances which may 
pose a health or environmental threat. All RCRA statutory authorities 
that hinge on a waste's being a statutory solid and hazardous waste 
still apply (for example, sections 3007, 3013). We anticipate that most 
generators will be able to correct a failure to meet the conditions 
within a 90-day period and reclaim the exemption, thus avoiding any 
practical effect of losing the storage and treatment exemption and 
becoming subject to RCRA subtitle C regulation.
    The storage exemption is based upon the NRC's regulatory framework 
governing the low-level radioactive waste 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 specifies 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 violates an NRC license, or tie-down conditions of a 
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 NRC regulations and this policy, 
licensed

[[Page 27239]]

facilities have a strong incentive to manage stored waste properly.
EPA Enforcement Policy Expiration
    We intend to allow the mixed waste enforcement policy to expire on 
October 31, 2001. Several commenters have stated that EPA should extend 
the ``Policy on Enforcement of RCRA Section 3004(j) Storage Prohibition 
at Facilities Generating Mixed Radioactive-Hazardous Waste'' for 
sufficient time to allow authorized states to adopt the rule we are 
promulgating today. Commenters have expressed concern that EPA may 
rescind the mixed waste enforcement policy or that facilities may be 
subjected to ``unreasonable enforcement actions,'' including citizen 
suits, before they have the opportunity to obtain the exemption.
    Commenters are correct that it may take some time for states (who 
choose to do so) to become authorized for this rule allowing a storage 
and treatment conditional exemption from RCRA Subtitle C for mixed 
waste. This rulemaking is intended to provide flexibility to generators 
of mixed waste where EPA requirements duplicate performance standards 
required by the NRC or NRC Agreement States. With the promulgation of 
this rule, EPA is expressing its view that facilities that comply with 
certain criteria can safely store mixed waste at NRC licensed 
facilities. Thus, the federal government is providing with this rule a 
potential option for mixed waste generators to store mixed wastes 
legally. We recognize that States are not required to become authorized 
to implement this rule. States may choose to be more stringent than the 
federal RCRA program. Although we do not intend at this time to extend 
the enforcement policy, we will monitor the implementation of today's 
final rule. Since States have generally followed EPA's lead on the 
enforcement policy, we anticipate a good number will choose to address 
dual regulation of mixed waste generators by acting on this rulemaking. 
States which do not adopt the rule may provide an enforcement policy 
within their states.
    g. Storage unit closure. We received two comments indicating that 
our proposal may have generated some confusion as to how the 
conditional exemption would affect a facility's closure obligations for 
mixed waste storage units already regulated under RCRA. For example, 
one commenter requested that EPA develop a streamlined closure guidance 
for applicable facilities that are NRC licensed and can demonstrate an 
excellent compliance history. Another commenter specifically asked us 
to clarify that a generator would be exempt not only from the 
requirement to obtain a permit, but also from closure requirements. On 
reviewing these comments, we realized that we had not explicitly 
addressed closure of previously regulated units, although it was our 
intent to treat these units the same way the proposal would treat new 
units storing exempt waste, which is to say that they would be subject 
only to NRC decommissioning requirements, and not also to RCRA closure 
requirements. This is clear for new units, since the waste would not be 
hazardous and would not trigger closure requirements.
    Thus, we are modifying the final rule to add Sec. 266.260 to 
exclude LLMW storage units containing conditionally exempt waste from 
RCRA Subtitle C closure requirements. Without this modification, the 
rule could be read to require that facilities currently managing low-
level mixed waste in permitted or interim status units to close these 
units because they no longer would be receiving hazardous waste. See 40 
CFR 264.113 and 265.113. It was not our intent to require LLMW storage 
tanks or containers to be emptied and decontaminated to comply with 
RCRA closure requirements merely to be refilled with the same waste 
(now conditionally exempt). Such closure would run contrary to our 
conclusion that mixed waste managed under NRC regulation renders RCRA 
Subtitle C regulation, including closure, unnecessary. We also see no 
human health or environmental rationale for treating previously 
regulated units differently from new units in this regard. Finally, we 
believe that requiring RCRA closure before the unit can manage the same 
waste under NRC standards could unnecessarily increase worker exposures 
to the radionuclides. Therefore, a facility with a permitted tank or 
container that is storing only conditionally exempt LLMW, and has 
stored only LLMW prior to the effective date of this rule, is not 
subject to RCRA closure requirements, and may terminate their RCRA 
closure obligations as to that unit by modifying the facility permit 
under 40 CFR 270.42. Similarly, an interim status storage facility with 
a unit that has stored only LLMW will not be subject to RCRA closure 
requirement, and should amend the facility closure plan when the stored 
LLMW becomes conditionally exempt after the effective date of this 
rule. Without a modification to a facility's permit or closure plan, a 
facility would, arguably, still be required to close exempted units 
under RCRA. Of course, a storage unit that also stores non-exempt 
hazardous waste, either prior to or after the effective date of this 
rule, will remain subject to the closure requirements of 40 CFR 264.110 
and 265.110 as applicable for areas storing the non-exempt hazardous 
waste.
    These changes related to closure of a permitted or interim status 
storage unit, as described above, do not affect the applicability of 
corrective action authorities that the EPA or authorized State may have 
to address releases from these units (or from other solid waste 
management units at the facility). For these facilities, all hazardous 
wastes will be addressed either through the NRC requirements for 
decommissioning and decontamination (D&D) or through the use of our 
corrective action authorities. We note that current NRC guidance states 
that when an NRC inspector is preparing to inspect any facility that is 
undergoing decommissioning, the inspector should coordinate with the 
U.S. Environmental Protection Agency, or the appropriate State agency 
if the decommissioning involves hazardous waste. (See NRC Inspection 
Manual, Chapter 2602, 2602-05 General Guidance, 05.05 Inspection 
Coordination.) EPA commits to working with NRC to ensure that 
coordination with EPA or the appropriate state agency continues on 
these previously regulated units undergoing decommissioning.

B. Discussion and Response to Comments on Storage Background Studies

    The storage and treatment provisions of our proposed and final rule 
are based on studies which we cited in the preamble to the proposal. 
These studies are available as supporting documents to provide 
background information to the public and to commenters on this 
rulemaking. These studies are ``Review of Waste Management Practices 
and Compliance History at Nuclear Power Plants and Other Entities that 
Generate Low-Level Mixed Waste.'' (April 12, 1999); and ``Comparison of 
the EPA's RCRA Requirements and the NRC's Licensing Requirements for 
the Treatment (In Tanks and Containers) and Storage of Low-Level Mixed 
Wastes at Nuclear Facilities'' (April 2001). To determine the 
protectiveness of NRC management requirements for LLMW, we researched 
the LLW storage and treatment provisions of NRC and material licenses, 
reviewed NRC compliance data on violations related to storage and 
treatment of LLW, and compared the regulatory framework of

[[Page 27240]]

EPA and NRC related to waste management. We found that safeguards were 
in place which would protect human health and the environment during 
storage and treatment of LLW and LLMW.
1. Review of NRC Licensing Requirements
    We researched NRC's regulatory and licensing framework under which 
low-level radioactive waste (LLW), and therefore LLMW, is stored and 
treated by waste generators. We examined provisions concerning the on-
site storage and treatment of LLW to assess whether these requirements 
are protective of human health and the environment with respect to 
preventing releases of hazardous constituents. We found that NRC and 
NRC Agreement States regulate licensees through the issuance of 
performance-based regulations, regulatory guides, generic 
communications (Generic Letters and Information Notices), and NUREGs. 
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. NRC uses these tools to guide licensees on how to 
meet the performance requirements in the regulations, and to impose an 
effective and enforceable regime to ensure protectiveness of the 
management of radioactivity.
    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 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.)
    NRC regulations concerning the generation, storage, and treatment 
of LLW are performance-based (for example, no releases or leaks), 
whereas RCRA regulations are more prescriptive (where types of 
containers and waste management are specified to prevent leaks). Based 
on our review, the NRC-enforceable tie-down conditions found in 
individual licenses protect human health and the environment from 
exposure to hazardous wastes during storage comparable to RCRA 
regulatory requirements. A compilation of the NRC documents that we 
reviewed can be found in the docket. (See Ref. 3, EPA's compliance 
history review.)
2. Research on Compliance Records of NRC and NRC Agreement State 
Licensees
    In addition to comparing NRC's storage requirements to EPA's, 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 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 noncompliance with the generator 
requirements (manifesting, recordkeeping, time-in-storage, reporting, 
etc.); 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. (See IV.B.1. for a summary of reports 
reviewed.) 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 NRC Agreement States) 
compares favorably with the percentage of violations reported by EPA. 
Fines, penalties, and other consequences assessed by NRC and NRC 
Agreement States serve to deter violations. Based upon the compliance 
data, the industries' record is good and will serve to protect human 
health and the environment. In addition, the record suggests that there 
will be relatively few instances of violations of conditions leading 
exempt LLMW to become hazardous. We conclude that regulation under 
Subtitle C is unlikely to improve that record significantly. 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 11555 Rockville Pike, Room 0-1F21, Rockville, MD 20852 (301-
415-4737 or 800-397-4209, Monday through Friday, 7:30 a.m. to 4:15 
p.m.), or by visiting NRC's Internet web page at http://www.nrc.gov.
3. Comparison of Regulatory and Management Requirements of EPA and 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 
releases of hazardous waste from storage. Based on our review, we do 
not believe these differences undermine protection of human health and 
the environment, or that the super-imposition of RCRA specific 
standards significantly increases protection. (See Ref. 4, EPA's 
comparison of EPA and NRC storage and treatment requirements.)
    Relevant NRC licensing criteria are in the docket for the NPRM, and 
also may be obtained by contacting the NRC public document room at 301-
415-4737, or accessing the NRC web site at 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 radioactivity of 
mixed waste will also result in the safe storage

[[Page 27241]]

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 finding that, under specified conditions, it is not necessary to 
also subject these wastes to RCRA storage regulation also.
4. Conclusions Based on Our Studies
    We reviewed the requirements of NRC licenses, looked into the 
compliance records of NRC and NRC Agreement State licensees, and 
compared the regulatory and waste management requirements of EPA and 
NRC. Based on these studies, we conclude that NRC regulatory and 
licensing requirements will effectively control risks from hazardous 
constituents as well as radioactive material. We found that there are 
NRC regulatory safeguards in place which will apply during the storage 
and treatment of conditionally-exempt LLMW in tanks and containers. 
Therefore, because NRC and NRC Agreement State controls effectively 
address the mismanagement of LLMW, RCRA Subtitle C regulation is not 
necessary for those wastes. As the court explained in Military Toxics 
Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998), ``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.'' We find that NRC and NRC Agreement State regulations 
governing LLW address scenarios where LLMW may pose a hazard.
5. Comments Received on Our Studies
    We received several comments related to the studies we completed 
prior to our proposal. We heard from a number of commenters regarding 
our comparison of NRC's and EPA's regulatory and management 
requirements. A number of commenters concurred, indicating that the 
technical record for proposing the conditional exemption was 
compelling. Some of them stated that our comparison was comprehensive, 
and supported our rulemaking proposal.
    Others commenting on the comparison encouraged us to conduct 
additional research regarding whether a single regulatory framework 
provides sufficient protection to safeguard human health and the 
environment. Some of these commenters were concerned about NRC 
monitoring for radiation but not chemical releases. They also wondered 
if NRC has ``sufficient expertise to properly deal with many of the 
issues related to storage and disposal of hazardous materials.'' 
Another commenter suggested that we require a minimum secondary 
containment volume for stored liquid LLMW. This commenter wanted us to 
define requirements for segregating chemically incompatible wastes, and 
thought that quarterly inspections were not protective and should be 
re-evaluated. Another commenter cited a 1986 chemical accident at a 
uranium conversion facility as evidence that NRC management of chemical 
hazards is deficient.
    We disagree with those commenters who believe that the conditional 
exemption we proposed is not protective of human health and the 
environment because of NRC's focus on radiation. Our thorough studies 
do not support these concerns. Because exempted LLMW is mixed, the same 
management practices that address concerns for containment of 
radionuclides will also address concerns for the containment of the 
hazardous constituent. For example, NRC requires that chemically 
incompatible wastes be segregated to prevent the release of not only 
radionuclides, but also hazardous constituents. In another example, 
secondary containment for radionuclide release accomplishes the 
containment of hazardous constituents at the same time. Further, if, or 
when, a chemical release should occur, radionuclides are also released. 
Radiation release detection as required by the license will 
simultaneously alert personnel of a release of the chemical matrix in 
which the radionuclides exist. Therefore, management practices 
including treatment, primary and secondary containment, inspections, 
emergency responses, and others, that reduce the risk of radionuclide 
release will also mitigate the release of hazardous constituents. In 
summary, the expertise required to manage LLW is very similar to that 
necessary to manage hazardous waste. The NRC management framework 
provides protection for the hazardous constituents contained in mixed 
waste. (Note that 10 CFR 61.56 includes many features related to the 
physical and chemical characteristics of the waste.) As we indicated in 
our studies, minor differences exist between NRC's and EPA's regulatory 
frameworks (including inspection frequencies); the latter is more 
prescriptive and the former more performance based. However, taken 
together, the systems are equivalent. Both prevent releases, 
expeditiously address releases that may occur, avoid exposures, and 
protect human health and the environment.
    We also disagree with commenters who believe our evaluation of the 
NRC framework was incomplete (i.e., that additional research was 
necessary to determine the sufficiency of a single regulatory 
framework). Rather, we agree with those commenters whose review 
concluded that our comparison was comprehensive. Based on our previous 
discussion, and on the written record we reviewed, we do not believe 
that additional research is necessary, or would yield information 
contrary to the conclusions we reached as a result of our studies.
    In order to ensure that the hazardous portion of LLMW receives 
special management attention, we have made final the conditions in 
Sec. 266.230 that address both personnel training in chemical waste 
management and hazardous materials incidents response, and emergency 
planning comparable to RCRA.
    One commenter's reference to a 1986 radiation accident is not 
compelling evidence to support delaying this rule. Firstly, the date 
cited for the incident does not take into account guidance or operating 
procedures addressing such events at facilities which NRC has 
subsequently developed to prevent such accidents. Two examples of NRC's 
attempt to address problems with facilities as they arise are the NRC 
document NUREG-0933, ``A Prioritization of Generic Safety Issues,'' 
which provides priority rankings to resolve safety issues that have a 
significant potential for reducing risk, and NUREG-1601, ``Chemical 
Process Safety at Fuel Cycle Facilities, August 1997, which 
specifically addresses the handling of chemicals such as the one 
involved in the 1986 accident. Secondly, our review of waste management 
practices at NRC and NRC Agreement state licensed facilities in recent 
years, demonstrates an excellent record of safety, even when compared 
to hazardous waste management under RCRA. Thirdly, the accident cited 
by the commenter was not a waste management accident, but a chemical 
processing accident (allegedly caused by negligence). Finally, a single 
example of an accident that occurred 15 years ago does not lead us to 
conclude that the two regulatory schemes do not provide equivalent 
protection.

VII. How Are the Final Transportation and Disposal Provisions 
Different From the Proposal?

    The final rule contains a number of language changes to respond to 
comments, and to make the storage and treatment exemption, and 
transportation and disposal exemption more consistent with each other. 
However, the final rule maintains conditional exemptions for

[[Page 27242]]

storage and treatment, and transportation and disposal. The changes to 
our proposal for transportation and disposal are highlighted below, and 
are discussed in greater detail in Section VIII of this preamble.
Streamlined Language
    In the final rule we have streamlined our discussion of what the 
transportation and disposal conditional exemptions do and what the 
eligibility requirements are (Sec. 266.305 and Sec. 266.310, 
respectively). These changes were made for clarity, and do not 
represent a substantive modification.
Specification Related to Containers
    The language we used in the proposal was not clear as it related to 
the types of containers that must be used prior to placing the exempted 
waste in a disposal cell. We have specified in the final language that 
the container must be: a carbon steel drum, an alternative container 
with containment performance in the disposal environment equivalent to 
a carbon steel drum, or a high integrity container as defined by NRC. 
We made this clarification in Sec. 266.340.
Notification
    The proposed rule required you to notify multiple regulators and 
the LLRWDF during implementation of the conditional exemption. We 
proposed that you notify three separate regulators with various waste 
information. In addition, we also proposed that you notify the same 
agencies of any change in information presented in the initial 
notification, including a claim for the exemption of any waste stream 
not identified in the initial notification. In response to public 
comments, we streamlined the requirement of notifying the regulators. 
In the final rule, you must notify your RCRA regulatory agency. 
However, you are not required to notify the RCRA regulatory authority 
at the state where the LLRWDF resides, or NRC or NRC Agreement states 
that licensed the LLRWDF as proposed. In addition, we simplified the 
notification so that it is a one-time notice in order to identify who 
is claiming the exemption. As a result, you are no longer required to 
provide information such as the process that generated the waste, or 
the volume of the waste. You are also not required to notify your RCRA 
regulatory agency of changes from initial notice.
    We modified slightly the proposed shipment-specific notice to a 
LLRWDF. It now incorporates a couple of elements that were previously 
in the notice to regulatory agencies (treatment standard verification 
and a signature requirement). We also added a statement indicating that 
the exempted waste must be placed in a container for disposal.
    In the proposed rule, we proposed that you notify your RCRA 
regulatory agency in writing within 30 days of learning of your failure 
to satisfy any of the conditions and RCRA requirements under the 
conditional exemption. In response to comments, the final rule does not 
require reporting of noncompliance with paper work and administrative 
types of RCRA requirements such as notification and recordkeeping. 
However, we do require reporting of noncompliance with conditions in 
Sec. 266.315.
Recordkeeping Requirements
    We removed the proposed recordkeeping requirements associated with 
the notice of change to the regulatory agency, since this notification 
is not required in the final rule. We revised the duration you must 
keep your exempted waste manifest records from ``until closure of the 
disposal facility or closure of your facility'' to reliance on the 
existing NRC or NRC Agreement State requirement. We also revised your 
recordkeeping duration for the notice to the LLRWDF from ``until 
closure of the disposal facility or closure of your facility'' to ``for 
three years after the exempted waste is sent for disposal.''
Point of Exemption
    The point at which a waste meeting land disposal restriction (LDR) 
treatment standards is conditionally exempted from RCRA regulatory 
requirements remains unchanged from the proposal. However, we changed 
one of the elements that described the point of exemption 
(Sec. 266.330[b]) from ``receiving return receipts from the 
regulators'' to ``receiving return receipts from the LLRWDF.''
Loss of Exemption
    In the final rule, we do not require maintaining records or 
providing notice as conditions of keeping the exemption. Notice or 
recordkeeping becomes a RCRA regulatory requirement instead. Failure to 
meet either a recordkeeping, or a notice requirement will not result in 
the automatic loss of the exemption of the waste. However, the Director 
may terminate the conditional exemption for your waste or add 
additional conditions to the exemption for serious or repeated 
noncompliance with any of the RCRA requirements of Subpart N. In 
addition, such a failure may subject you to an enforcement action 
requiring compliance, monetary sanctions, or both.
    In another change, we specified minimum reporting requirements in 
Sec. 266.355(a) when you report the loss of an exemption.
    Finally, in Sec. 266.355(a) we added the provision of orally 
notifying your RCRA regulatory agency within 24 hours of discovery of 
failure to meet any of the conditions if the failure may endanger human 
health or the environment. This oral notice must be followed up with a 
written notice within 5 days.
Reclaiming the Transportation and Disposal Exemption
    In the final rule, we have slightly modified the procedure you must 
follow to reclaim an exemption for your waste. You are required to send 
a notice to your RCRA regulatory agency, by certified delivery with 
return receipt requested, that you are reclaiming the exemption for 
your waste. In the final rule, the reclaimed exemption becomes 
effective after you receive the return receipt from this reclaim 
notice. This procedure is different from the proposal, which allowed 
the reclaimed exemption to become effective as soon as you meet the 
reclaim requirements for your waste. In addition, you may initiate the 
reclaim process for your waste only after you have received the return 
receipt from your RCRA regulatory agency confirming that it has 
received your notice that you have lost the exemption for your waste. 
We made these change in response to comments received on our question 
on whether there should be a waiting period prior to a reclaimed 
exemption becoming effective.

VIII. Discussion and Response to Major Comments on the 
Transportation and Disposal Conditional Exemption

    In today's rule, we are finalizing a conditional exemption from 
RCRA Subtitle C regulation for hazardous wastes containing LLW and/or 
NARM that are transported and disposed of subject to NRC or NRC 
Agreement State regulation. Eligible wastes (LLMW or Eligible NARM) 
that are managed in accordance with the conditions under Sec. 266.315 
are exempt from the RCRA regulatory definition of hazardous waste. The 
conditional exemption takes effect once specified actions have 
occurred. You then may manage your wastes as you would solely 
radioactive wastes. Since the point of exemption takes place when a 
waste is placed on a transportation vehicle destined for a low-level 
radioactive waste disposal facility (LLRWDF) for disposal, the exempted 
waste need not comply with RCRA Subtitle C transport and disposal

[[Page 27243]]

requirements. This conditional exemption acknowledges the protection 
provided by NRC and NRC Agreement States regulations for the manifest, 
transportation, and disposal of the radioactive portion of the eligible 
waste.
    The conditions for the transportation and disposal exemption are 
listed in Sec. 266.315, and include the following:
     The wastes must meet LDR treatment standards;
     Waste shipments from those of you who are not already 
subject to NRC or NRC Agreement State manifest and transportation 
regulation must comply with the NRC (or NRC Agreement State) manifest 
and transportation regulations;
     The wastes must be disposed of at a LLRWDF licensed by NRC 
(or Agreement State); and
     The wastes must be disposed of in containers that meet 
specified minimum requirements.
    Your waste automatically loses its transportation and disposal 
exemption if you failed to meet any of the conditions specified in 
Sec. 266.315. You must notify your RCRA regulatory agency when your 
waste loses its exemption. You may be subject to an enforcement action 
requiring compliance, monetary sanctions, or both for any violations 
that occur as a result of this loss of exemption. You may reclaim your 
transportation and disposal conditional exemption for your waste if it 
again meets the conditions specified in Sec. 266.315, and you notify 
your RCRA regulatory agency that you are reclaiming the exemption for 
your waste.

A. What Is the Basis of the Transportation and Disposal Conditional 
Exemption?

    We determined that a conditional exemption from RCRA Subtitle C 
regulation for the transportation and disposal of eligible waste is 
appropriate because we concluded that management of eligible waste 
under NRC and NRC Agreement State regulations coupled with the 
additional conditions set forth in today's rule provide a comparable 
level of protection for the RCRA constituents. We reached this 
conclusion after a thorough analysis comparing NRC transportation and 
disposal requirements to RCRA hazardous waste regulations. We believe 
that this analysis demonstrates that NRC regulations effectively 
protect human health and the environment for the circumstances allowed 
under today's conditional exemption. Thus, we do not believe the waste 
managed under these conditions should be subject to Subtitle C, since 
Subtitle C controls are not necessary to protect human health and the 
environment. For a complete explanation of the legal basis for 
establishing a conditional exemption under RCRA see the preamble to the 
Military Munition Rule at 62 FR 6636 (February 12, 1997). See also MTP 
vs EPA, 146 F3rd 948 (D.C. Cir.1998) upholding EPA authority to 
establish conditional exemptions under RCRA.
    We received comments both supporting and opposing the general 
approach of our proposed rule. Forty-nine commenters--including 
generators, some states, RCRA facilities, members of the public, and 
the NRC--supported our overall approach. They believed that our 
proposal was sound and would provide the important and necessary 
regulatory protection and flexibility for the management of the 
eligible waste.
    Of the commenters that questioned our proposed rule, some stated 
that NRC's regulations and requirements were established to protect 
against radioactive hazards and not against hazards posed by RCRA 
hazardous waste. Therefore, they believed that it is not appropriate to 
rely on NRC regulations for protection against chemical hazards. We 
agree that NRC and NRC Agreement State regulations were not established 
for the primary purpose of protecting against risks posed by RCRA 
hazardous waste. However, we disagree with the conclusion that it is 
not appropriate to rely on these regulations for protection against 
hazards posed by RCRA wastes.
    Specifically, concerning the transportation of hazardous material, 
EPA and NRC have expressly adopted DOT regulations governing the 
transportation of hazardous material. The Department of Transportation 
(DOT) packaging and transportation requirements for a LW provide 
adequate protection against chemical hazard during the transportation 
of an eligible waste meeting the LDR treatment standards. DOT Hazardous 
Material Regulations (HMR; 49 CFR parts 100 through199) contain 
requirements for transporting hazardous materials. DOT HMR contains 
packaging, labeling, documenting, placarding, and other requirements 
for transporting hazardous material. The DOT hazard classification 
system includes materials that are explosive, flammable, reactive, 
toxic, infectious, corrosive, radioactive, and gases. Hazardous 
materials subject to the HMR must, at a minimum, be packaged in strong 
tight containers that can safely survive transportation incidents. EPA 
has adopted DOT regulations governing the transportation of hazardous 
materials to protect human health and the environment in the 
transportation of hazardous waste. NRC LLW packaging and transportation 
regulations have also adopted DOT regulations for transporting 
radioactive material. Under this conditional exemption, the exempted 
waste is required to meet the LDR treatment standards and therefore no 
longer exhibits the flammable, corrosive, and reactive characteristics. 
As a result, the transportation packaging requirement for the exempted 
waste do not need to consider these hazards. The remaining hazard of 
concern of the exempted waste is the toxicity of the waste. We 
consulted with DOT who stated, and we agreed, that the transportation 
packaging requirement for the transportation of the LLW is adequate for 
the protection against the toxic hazard that would remain in the waste 
that has met LDR treatment standards. (See Ref. 19, Discussion with DOT 
on mixed waste transportation.) Therefore, the exempted waste, once 
meeting the LDR treatment standards, will be properly managed if it is 
packaged and transported as a LLW. For these reasons, we concluded that 
packaging and transportation controls that apply to a LLW are adequate, 
appropriate, and will ensure safe management of the exempted waste 
during transportation.
    Concerning tracking of hazardous waste, the exempted waste (a 
radioactive waste) is subject to NRC or NRC Agreement State equivalent 
manifest regulations. We conducted a detailed comparison between RCRA 
and NRC manifest regulations that track the movement of the exempted 
waste (See Ref. 12, Comparison of NRC and EPA's Waste Tracking.) We 
determined that NRC's waste tracking regulations are at least as 
stringent as RCRA regulations. Most notably, both RCRA and NRC 
manifests were developed to be consistent with the DOT shipping paper 
regulations at 49 CFR 172.200. Therefore, RCRA and NRC manifests share 
many basic elements, including closed-loop notification and tracking, 
exception reporting, and mandatory retention of manifests. However, the 
NRC manifest regulations exceed the RCRA Subtitle C manifest 
regulations 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. Therefore, we 
believe that NRC regulations for tracking low-level waste meet our 
needs to ensure that the exempted waste arrives at the appropriate 
licensed LLRWDF, and that NRC provides adequate mechanisms for

[[Page 27244]]

Federal or state oversight of the waste shipments.
    We also reviewed NRC regulations (10 CFR part 61) and the practices 
of low-level waste disposal facilities to determine if they provide 
levels of human health and environmental protection comparable to RCRA 
Subtitle C permitted disposal facility requirements. (See proposal F-
1999-ML2P-FFFFF, Ref. 7, Technical assessment of LLRWDFs.) This 
analysis included the elements of siting, disposal cell engineering and 
design, and management control. Our assessment indicates that NRC 
regulations for disposal facilities provide protection comparable to 
that provided by RCRA Subtitle C regulations, particularly given that 
we are requiring that the RCRA hazardous constituents be treated to LDR 
treatment standards and that the waste be placed in certain types of 
containers prior to disposal. More detailed discussion of this 
technical analysis can be found in section VIII.G. of today's document.
    In summary, our analysis of NRC transportation and disposal 
regulations leads us to conclude that the NRC regulations coupled with 
a few additional conditions provide adequate protection of human health 
and the environment, and that regulation under RCRA Subtitle C is not 
necessary. The fact that NRC regulations were designed primarily for 
the purpose of protecting against radioactive waste is largely 
irrelevant since the regulations are designed to ensure protective 
transporting, tracking, and containment of the waste, which will 
protect against chemical hazards as well as radiation hazards.

B. What Wastes Are Eligible for the Transportation and Disposal 
Conditional Exemption?

    As we proposed it, the transportation and disposal conditional 
exemption would apply only to LLMW that meets the waste acceptance 
criteria of a LLRWDF and Eligible NARM. A LLMW is a RCRA hazardous 
waste as defined in 40 CFR part 261, containing a low-level radioactive 
waste as defined in 10 CFR 61.2. A table identifying the types of RCRA 
hazardous waste commonly found in LLMW is provided as background 
material in the RCRA Docket (See Ref. 10, RCRA Hazardous Constituents 
and Waste Codes.) In the final rule, Eligible NARM is defined as a NARM 
waste that contains RCRA hazardous waste, and meets the waste 
acceptance criteria of, and is allowed by State NARM regulations to be 
disposed at a LLRWDF licensed in accordance with 10 CFR 61 or NRC 
Agreement State equivalent regulations.
    NARM is defined by its origin of generation rather than by the 
level of its radioactivity. The manner in which NARM waste is managed 
depends on the radioactive content of the material. In most cases, NARM 
waste is radiologically similar to low-level radioactive waste. Because 
today's rule applies to LLMW, we are extending the exemption to NARM 
only when its radioactive content is comparable to LLW and is managed 
as such. A LLRWDF is required to establish waste acceptance criteria as 
part of its license requirements to ensure protection of human health 
and the environment. The waste acceptance criteria are derived from the 
performance criteria of the disposal facility and ensure that only 
those wastes that can be accepted and properly managed at the LLRWDFs 
are accepted. Therefore, we are requiring that in order to be eligible 
for the transportation and disposal exemption, your Eligible NARM waste 
must meet the waste acceptance criteria of a LLRWDF and therefore will 
be properly managed.
    In the proposed rule, we solicited comments on the applicability of 
this conditional exemption to hazardous waste contaminated with NARM. 
We received comments that both supported and questioned the inclusion 
of NARM contaminated with RCRA hazardous waste for the exemption. Those 
who supported including this waste stated that we should not exclude 
NARM waste solely because it is not regulated under the Atomic Energy 
Act (AEA). They also stated that the source of generation of the 
radioactive material, under which NARM is defined, should not have 
bearing on whether the NRC or Agreement State equivalent regulations 
provide a sufficient level of protection for the waste. They stated 
that NARM is similar to LLW, and should be eligible for the conditional 
exemption.
    Those who opposed the inclusion believe that the NRC has no 
regulatory authority over NARM. We note that although NRC does not have 
regulatory authority over NARM, the States may regulate this material. 
Some states have laws and regulations in place for managing this 
material. We note that all three states that license the existing 
LLRWDFs have such authority. In the case of Non-NRC Agreement states, 
where the NRC implements the radioactive material management 
regulations, the States may enact additional laws and regulations to 
regulate NARM. However, to ensure that there will not be regulatory gap 
under this conditional exemption for NARM, we are specifying that you 
can claim this exemption for your Eligible NARM waste and dispose of 
the NARM waste at a LLRWDF only if state laws and regulations governing 
that LLRWDF allow the disposal of NARM waste. In addition, as discussed 
earlier the waste acceptance criteria of a LLRWDF will ensure that any 
NARM accepted at a LLRWDF will meet the licensing requirement and will 
be properly managed. Therefore, there is no regulatory gap in managing 
NARM waste even though the NRC does not have regulatory authority over 
this waste.
    We received two comments requesting that DOE waste be excluded from 
the exemption due to oversight concerns. Rather than excluding DOE 
waste from eligibility for the conditional exemption, we fashioned the 
conditional exemption to ensure external oversight of DOE waste. First, 
to be exempt, eligible waste must be disposed of at an NRC or NRC 
Agreement State licensed LLRWDF. Second, DOE must follow the NRC or NRC 
Agreement State equivalent manifest and transportation regulations. 
These conditions ensure that any exempted DOE wastes are under the 
oversight of an external regulatory agency. (As explained below, in the 
case of the manifest and transportation provisions, the agency would be 
the RCRA regulatory agency, by virtue of a condition contained in the 
final rule.)

C. What Conditions Must You Meet for Your Waste To Qualify for and 
Maintain the Transportation and Disposal Conditional Exemption?

1. Land Disposal Restriction Treatment Standards
    As we proposed, eligible waste must meet the RCRA Land Disposal 
Restriction (LDR) treatment standards before it is transported and 
disposed of as an exempted waste. You can find the RCRA LDR treatment 
standards in 40 CFR part 268, subpart D.
    In HSWA, Congress prohibited the land disposal of hazardous waste 
unless the waste is treated to minimize threats to human health and the 
environment. The statute required EPA to establish treatment standards 
that will substantially diminish the toxicity or mobility of hazardous 
waste to minimize short and long-term threats to human health and the 
environment. We have developed a series of treatment standards for 
hazardous waste based on the best demonstrated available technology 
(BDAT) for treating the waste. The LDR treatment standards ensure that 
the organic constituents are

[[Page 27245]]

destroyed or substantially reduced and the mobility of the toxic metals 
are stabilized to minimize threats to human health and the environment. 
In contrast, the approach to waste treatment for a radioactive waste is 
stabilization and containment while the waste undergoes radioactive 
decay. We could not confidently conclude that NRC waste stabilization 
requirements for radioactive waste assure long term protection of human 
health and the environment from all types of RCRA hazardous waste. 
Therefore, we have decided to maintain the LDR treatment requirements 
as a condition of the exemption.
    In some instances, a RCRA hazardous waste becomes a nonhazardous 
waste when it is treated to the designated LDR treatment standards. 
These situations involve treatment standards for ignitable, corrosive, 
and reactive characteristic wastes, and most standards for the toxic 
characteristic wastes. Some of the treatment standards for hazardous 
debris also allow the treated debris to be managed as a nonhazardous 
waste. In addition, there are other processes (e.g. delisting under 40 
CFR 260.20 and 260.22) through which a RCRA hazardous waste can become 
a nonhazardous waste. Under these situations when your LLMW or Eligible 
NARM waste is no longer a RCRA hazardous waste, you do not need to 
claim the transportation and disposal conditional exemption in order to 
manage and/or dispose of the resulting waste as a LLW or a NARM waste. 
The resulting waste would be regulated as a radioactive waste only. You 
should contact your RCRA regulatory agency if you have questions 
concerning the treatment standards or the processes which may allow 
your LLMW or Eligible NARM waste to be regulated as non-hazardous 
waste.
    You must continue to comply with all other provisions associated 
with the LDR treatment regulations (e.g. sampling and analysis to 
determine compliance with LDR treatment standards or certifying such 
compliance). Additionally, recognizing the public's concern over 
potential radiation exposure from mixed waste testing we developed a 
mixed waste testing guidance. The guidance was developed in close 
coordination with NRC, and is titled ``Joint NRC/EPA Guidance on 
Testing Requirements for Mixed Radioactive and Hazardous Waste.'' You 
can find this guidance at EPA's mixed waste web site at (www.epa.gov/radiation/mixed-waste/). The primary purpose of the guidance document 
is to assist you in the characterization of mixed waste in accordance 
with RCRA regulations, while keeping radiation exposure as low as 
reasonably achievable (ALARA). The guidance document emphasizes 
flexibility in the RCRA testing requirements to incorporate the ALARA 
concept.
    In the proposed rule, we solicited comments on whether we should 
exclude LDR Phase IV alternative soil treatment standards from the LDR 
treatment standards that eligible waste must meet for you to claim the 
conditional exemption. The majority of the commenters supported 
including the alternative soil treatment standard as part of the LDR 
treatment standards which must be met to qualify for the conditional 
exemption. The Association of State and Territorial Solid Waste 
Management Officials commented that this decision should rest with the 
States in which the disposal will occur.
    We believe that it is appropriate to include the alternative soil 
treatment standards under this conditional exemption. We promulgated 
the alternative soil treatment standards under the LDR Phase IV Rule 
found at Sec. 268.49 to provide flexibility for remediation activities. 
The LDR Phase IV Rule can be found at [63 FR 28602-28622, May 26, 
1998]. In the LDR Phase IV Rule, we determined that the technology-
based treatment standard (90 percent reduction capped by 10 times the 
Universal Treatment Standards) for contaminated soil is sufficiently 
stringent to satisfy the core requirement of RCRA Sec. 3004(m) that 
short and long-term threats to human health and the environment are 
minimized. The alternative soil treatment standards also consider the 
need to encourage remediation of contaminated soil which involves 
excavation and treatment of the soil. In the case of this conditional 
exemption, wastes treated to LDR treatment standards, including the 
alternative soil treatment standards, must be placed in a container for 
disposal. We believe the soil treatment and waste container 
requirement, in conjunction with the protection provided by the 
radioactive waste disposal facility, ensure protection to human health 
and the environment. We note that states may impose more stringent 
requirements when they adopt this rule. In conclusion, the final rule 
does not exclude the alternative soil treatment standard in Sec. 268.49 
from the LDR treatment standard in today's transportation and disposal 
conditional exemption.
2. Manifest and Transportation
    a. If you are subject to NRC or NRC Agreement State regulation: 
Today's final rule relies on NRC or NRC Agreement State manifest and 
transportation regulations (which also refer to DOT regulations at 49 
CFR parts 100-199) to control the manifesting and transportation of the 
exempted waste shipment. If your exempted waste streams are already 
subject to these externally regulated manifest and transportation 
requirements, you have no additional transportation and manifest 
requirements or conditions under today's rule. The Agency believes it 
is unnecessary to impose additional requirements on you because your 
waste shipments already are subject to NRC, NRC Agreement State, or DOT 
enforcement actions if you failed to meet the manifest or 
transportation regulations.
    b. If you are not directly subject to NRC or NRC Agreement State 
regulation: Today's rule imposes a condition on facilities, such as DOE 
facilities, whose radioactive waste shipments are not directly subject 
to NRC or NRC Agreement State manifest and transportation requirements. 
The condition requires these facilities to comply with the manifest 
requirements at 10 CFR part 20 (or NRC Agreement State equivalent 
regulations), and/or the transportation requirements under 10 CFR part 
71 (or NRC Agreement State equivalent regulations). This condition is 
necessary because such facilities are not subject to enforcement 
actions by NRC or an NRC Agreement State in the event they fail to meet 
the NRC or NRC Agreement State specified requirements. Hence, as an 
alternative to NRC or NRC Agreement State oversight, when such a 
facility fails to meet this condition in today's rule, the facility's 
waste will automatically lose its exemption. This facility may become 
subject to an EPA (or RCRA-authorized State) enforcement action 
requiring compliance, monetary sanctions, or both, thus providing an 
external enforcement mechanism that would otherwise not exist. This 
approach addresses concerns regarding shipment of conditionally 
exempted waste by facilities who are not already subject to NRC or NRC 
Agreement State manifest and transportation regulatory requirements. 
This condition also ensures the consistent application of the manifest 
and transportation requirements for the exempted waste.
    This exemption is contingent upon waste disposal in an NRC, or NRC 
Agreement State, licensed LLRWDF. Therefore, it is important that a 
mechanism be in place to track all exempted waste in transit and 
confirm that the exempted waste arrives at the appropriate disposal 
facility. This exemption also relies on the added

[[Page 27246]]

protection provided by the NRC, or NRC Agreement State regulations for 
the transportation of the exempted waste. We do not believe this 
condition will impose an unreasonable burden on these facilities who 
are not directly subject to NRC or NRC Agreement State manifest and 
transportation requirements. Therefore, we are maintaining this 
condition as proposed.
    Some commenters expressed a broad concern that reliance on the LLW 
manifest would not provide carriers or emergency responders with the 
information they need to respond to transportation incidents involving 
the exempted waste. We note that even though the LLW manifest does not 
contain specific information of the chemical constituent of the 
exempted waste, the emergency response procedures for an incident 
involving radioactive material are very rigorous and similar to the 
procedures used in responding to an incident involving a chemical 
material. In addition, an NRC or NRC Agreement State LLW manifest also 
contains an emergency contact telephone number allowing the emergency 
responder to contact the shipper for additional information on the 
waste contained in the particular shipment if needed.
    It is important to note that the exempted waste will be treated to 
meet the RCRA LDR treatment standards. In particular, the acute hazards 
related to the reactivity, corrosivity, and ignitability 
characteristics of the RCRA characteristic waste that are of primary 
concern during transportation, will be eliminated when a waste is 
treated to LDR treatment standards. The chronic toxicity of the toxic 
characteristic and listed wastes will also be greatly reduced. Also, 
the exempt waste will not contain free liquids, which will 
significantly enhance containment of the waste.
    A professional emergency responder is trained to manage a wide 
variety of transportation incidents. The responders will approach 
radioactive wastes with the same care and caution as they would use in 
approaching a LLMW. Radioactive constituents generally have similar 
exposure pathways to humans (e.g. dermal contact, ingestion, or 
inhalation) as RCRA hazardous constituents do. Therefore, emergency 
response personnel would take the same precautions as they would for a 
RCRA hazardous waste such as wearing protective clothing and carrying 
supplied air. Also, because radioactive wastes present a risk based on 
the responder's proximity to the waste package, emergency responders 
also will limit their proximity and time near the waste as they would 
for a RCRA hazardous waste. Therefore, we believe the concern raised by 
these commenters is properly addressed due to the nature of the waste 
and the procedures and precautions that will be taken for responding to 
a radioactive waste transportation incident.
3. Container Requirement
    Today's rule requires placing the exempted waste in a container 
before disposal. The container must be one of the three types specified 
under Sec. 266.340:
     A carbon steel drum;
     A container with equivalent containerization performance 
in the disposal environment as a carbon steel drum; or
     A high integrity container as defined by NRC.
    It is your responsibility to make the appropriate arrangements and 
ensure that the exempted waste is placed in a container for disposal.
    The proposed rule did not require specific types of containers, but 
instead specified that the container ``cannot be cardboard or 
fiberboard boxes.'' However, a commenter indicated that they did not 
believe that this standard was prescriptive enough to ensure 
appropriate containment of the waste. We agree with this comment. In 
response, we have specified in the final rule the acceptable types of 
containers which are consistent with the technical analysis performed 
during the rulemaking process.
    In the proposed rule, we noted that both EPA and NRC disposal 
facility requirements provide similar features to isolate waste from 
its disposal environment. An NRC disposal facility is not required to 
have a synthetic liner, whereas a RCRA facility is. To ensure an 
equally protective disposal environment for purposes of the conditional 
exemption, we compared the performance of the RCRA hazardous waste 
landfill synthetic liner to the performance of a carbon steel drum and 
a high integrity container (as defined by NRC). We found that the 
performance of these specific containment devices are comparable for 
the purpose of retaining the integrity of the waste in the disposal 
cell (See Ref. 7, Technical Evaluation.) The Agency based its proposed 
container requirement on the landfill liner and container comparison 
analysis, but now realizes that the proposed regulatory language could 
allow disposal alternatives that do not provide the same protections as 
we intended. The proposal language specified that the container cannot 
be cardboard or fiberboard boxes. Some commenters noted that the 
description would allow paper boxes or wooden crates that are also 
unacceptable.
    The final requirement is still flexible in that it allows for 
alternatives to carbon steel drums as long as the container used 
achieves equivalent performance. We also allow the use of high 
integrity containers (HICs) since they must pass a series of rigorous 
tests as specified by NRC to demonstrate that they will retain their 
structural integrity for 300 years or more. These HICs are more often 
used by LLRWDFs to stabilize and contain wastes with higher 
radioactivity than LLMW. We decided to codify HICs for purposes of this 
conditional exemption because they provide containment equivalent to 
carbon steel drums.
4. Waste Disposal Destination
    Today's final rule requires that the exempted waste must be 
disposed of only at a LLRWDF licensed and regulated by NRC, or an NRC 
Agreement State, in accordance with 10 CFR part 61 or NRC Agreement 
State equivalent regulations. It is your responsibility to make the 
appropriate arrangements to dispose of the exempted waste at the 
designated LLRWDF. This provision is unchanged from the proposal.
    Some commenters stated that NRC shallow land burial facilities are 
``designed to fail,'' and cited past failures at such facilities. Our 
investigation indicated that the facilities cited by the commenters 
were designed and operated prior to NRC's codification of regulations 
for LLRWDFs in 1982 at 10 CFR part 61. NRC promulgated these 
requirements in response to the failures and problems cited by the 
commenters. Since that time, the NRC and the NRC Agreement States have 
worked aggressively with the LLRWDF licensees to ensure that the 
LLRWDFs meet current regulatory requirements and additional NRC 
technical guidance specified in technical position papers. In 
particular, the NRC waste form technical position paper ``Technical 
Position on Waste Form (Revision 1)'' contains specific criteria on how 
the waste should be stabilized prior to disposal at LLRWDF. The waste 
form criteria are generally incorporated into the LLRWDF's license as 
waste acceptance criteria. In addition, since 1982, NRC regulation has 
prohibited disposal of liquid waste. Based on EPA's analysis of NRC and 
NRC Agreement State LLRWDFs, EPA concludes that LLMW treated to LDR 
standards will be safely managed at such facilities. (See discussion in 
VIII. G.)

[[Page 27247]]

    Prior to our proposed rule, States expressed concern about DOE's 
self-regulating status for managing the radioactive material. 
Generally, States that regulate radioactive material have no regulatory 
oversight authority for DOE's radioactive material. However, NRC and 
NRC Agreement States have regulatory authority over commercial and 
other non-self regulating federal facilities that manage radioactive 
materials. Therefore, in today's rule, we are exempting only those 
wastes disposed of at an LLRWDF that is licensed and regulated by NRC 
or an NRC Agreement State. This approach will ensure that all exempted 
waste (radioactive waste) remains under an external regulatory 
framework and enforcement authority. DOE may take advantage of the 
transportation and disposal exemption if it disposes of its exempted 
waste in LLRWDFs licensed and regulated by NRC or an NRC Agreement 
State. This approach addresses the States' concern and allows DOE to 
take advantage of the exemption. All of the comments on this provision 
supported the Agency's proposed approach.

D. What Other Provisions Must You Meet?

    The Agency is finalizing the RCRA notification and recordkeeping 
requirements for this rule. These RCRA requirements are obligations 
that you must meet at all times. If you fail to meet these RCRA 
requirements, you must take prompt actions to return to compliance with 
these RCRA requirements. Your waste will not automatically lose the 
transportation and disposal conditional exemption if you fail to meet 
these RCRA requirements for your waste. However, your RCRA regulatory 
agency may terminate a conditional exemption or add additional 
conditions to an exemption for serious or repeated noncompliance with 
any of the RCRA requirements of subpart N. In addition, you could be 
subject to an enforcement action requiring compliance, monetary 
sanctions, or both under RCRA 3008(a) enforcement authority for failure 
to comply with any of the RCRA requirement(s) of subpart N for your 
waste.
1. Notification
    Today's rule requires you to provide a one time notice to your RCRA 
regulatory agency under Sec. 266.345(a) prior to the initial shipment 
of an exempted waste from your facility to a LLRWDF to claim the 
transportation and disposal conditional exemption. The notification 
must include your facility name, address, telephone number, and your 
RCRA ID number. You need not notify your RCRA regulatory agency again 
for subsequent shipments of the same or a different waste stream from 
your facility. The purpose of this notice is to identify to the RCRA 
regulatory agency those of you who are claiming the conditional 
exemption.
    Today's rule also requires you to notify the LLRWDF receiving your 
exempted waste before each shipment of your waste. Your notification 
must provide the information required under Sec. 266.345(b) which 
includes:
     A statement that you have claimed the exemption for your 
waste;
     A statement that the waste meets all applicable LDR 
treatment standards;
     A statement identifying your facility name, address, and 
RCRA ID number;
     All applicable RCRA waste codes for the waste before the 
waste was exempted;
     A statement that the exempted waste must be placed in a 
container for disposal;
     The manifest number of the shipment that will contain the 
exempted waste; and
     A certification that the information provided is true, 
accurate and complete.
    We expect that most, although not all, of the information on this 
notice to a LLRWDF will remain the same from shipment to shipment, 
especially when the same waste stream is continuously being shipped for 
disposal. Therefore, a previous notice to the LLRWDF can easily be 
updated and used as the new notice. Alternatively, you also can choose 
to develop your own standard notice to an LLRWDF with unchanging 
information already filled in.
    The notice in Sec. 266.345(b) serves several important purposes. 
First, it will allow the LLRWDF receiving the exempted waste to 
identify the waste and place it in a container for disposal. Since the 
exempted waste would be managed and identified as any other radioactive 
waste after the point of exemption (See discussion in section VIII. 
E.), a mechanism is needed to allow the identification of the exempted 
waste at the LLRWDF. The manifest number of a shipment that contains 
exempted waste will enable such identification. In the case of the 
standard NRC Uniform Low-Level Radioactive Waste Manifest Form 541, the 
manifest number appears in block number 2.
    Second, the notice informs the LLRWDF that it is receiving a 
conditionally exempted waste, and allows it to take actions that it may 
deem appropriate. A LLRWDF's willingness to receive the exempted waste 
is essential in obtaining the benefit of this rule. During the proposal 
stage of this rulemaking, owners and operators of LLRWDFs indicated 
that they want to know when they would be receiving an exempted waste. 
(See Ref. 9, Notes of meeting with LLRWDFs.) They want to be able to 
decide, on an operational basis, whether to take precautionary actions 
such as screening for specific constituents in a shipment or screening 
for LDR compliance. The information regarding the RCRA hazardous waste 
codes of the waste stream before it was exempted will allow the LLRWDFs 
to be aware of the content of the waste and take proactive steps as 
they deem appropriate. In addition, you may only ship the exempted 
waste to an LLRWDF after you have received the return receipt from the 
LLRWDF confirming that it has received your notice. This provision 
ensures that the LLRWDF will have advance notice of the arrival of the 
exempted waste so that the LLRWDF can ensure that the exempted waste is 
handled accordingly.
    Finally, this notice, in conjunction with the recordkeeping 
requirement, also will provide information to facilitate inspection and 
other oversight activities. You are required to keep records of this 
notice, and make these records available during inspection or upon 
request.
    The notification requirements in today's final rule differ from the 
proposed rule in several respects:
     Simplified initial notices to regulatory agencies when 
claiming an exemption;
     Added notification elements in the notice to LLRWDF to 
ensure proper handling of the exempted waste at the LLRWDF;
     Removed notices to regulatory agencies of changes in 
information submitted in the initial notice;
     Removed notices to regulatory agencies of failure to 
satisfy recordkeeping or notification requirements; and
     Changed status of the notice to your RCRA regulatory 
agency when claiming the conditional exemption from a condition of the 
rule to a RCRA requirement. (See loss of exemption discussion in Sec. 
VIII.F.2.)
    We received comments that both supported and opposed the multiple 
notifications to the regulators and the LLRWDFs. Some commenters stated 
that proper notification to the LLRWDF will allow the LLRWDF to prepare 
for receipt of waste and ensure compliance.

[[Page 27248]]

    To address the concern raised regarding multiple notices, we 
evaluated the proposed notification requirements. We found difficulties 
and burdens associated with multiple notifications and broad 
notification requirements. Consequently, we simplified the notification 
requirement by reducing the number of regulators you must notify and 
the amount of information you must provide. In the final rule, you need 
only notify the RCRA regulatory authority. You are no longer required 
to provide information such as the exempted waste volume and the 
process that generated the waste. The re-notification of changes from 
the initial notice to the regulator also is not required. The intention 
of the proposed notices to the regulators was to identify those of you 
who are claiming the conditional exemption, and to provide information 
on the exempted waste. The revised notice to your RCRA regulatory 
agency in today's final rule will continue to serve these purposes 
while reducing unnecessary burden. The notice will identify those of 
you who are claiming the conditional exemption. In addition, even 
though the notice will not contain information about the exempted 
waste, the regulatory agency can still obtain information related to 
the waste or other aspect of the exemption from you when necessary 
because you are required to keep records related to the exemption.
    We also evaluated the notice to the LLRWDF. We modified this 
shipment-by-shipment notification requirement to ensure that the 
exempted waste will be properly managed at the LLRWDF. We slightly 
expanded this notice requirement to include the following additional 
information: a statement that you have claimed the exemption; a 
statement that the waste meets the LDR treatment standards; and a 
statement that the exempted waste must be placed in a container for 
disposal. This information can be included in a standard form letter. 
Therefore, we do not expect that the additional information requested 
will increase the reporting burden. This notice to a LLRWDF will 
continue to include identification information including your facility 
and the RCRA waste code of the waste stream. We believe this 
notification requirement will provide the mechanism to ensure proper 
handling of the exempted waste at the LLRWDF.
    Notices to your RCRA regulatory authority and the LLRWDF, in 
conjunction with the recordkeeping requirement, will provide adequate 
information to facilitate inspection and enforcement activities. You 
are required to maintain records of the exempted waste, and must make 
records available during an inspection or upon request. (See Sec. VIII. 
D. 2. of this preamble.) The state regulator who licensed the LLRWDF 
can obtain information about the exempted waste from the RCRA 
regulatory authority where the LLRWDF is located or where you are 
located.
    In the proposed rule, we required you to report to your RCRA 
regulatory agency when you fail to satisfy administrative and paper 
work requirements, such as notification or recordkeeping. Many 
commenters said that this provision is unnecessarily broad and should 
focus only on reporting noncompliance that would endanger human health 
and the environment. The commenters believed that broader reporting 
requirements would impose an undue burden on the regulated community 
and provide information of little or no value to the regulators. We 
considered this comment and agree that reporting noncompliance with 
administrative requirements (such as recordkeeping) is unnecessary. We 
believe that human health and the environment will be protected 
provided facilities meet the technical conditions and standards 
necessary to ensure safe management of the waste. However, you are 
required to make the appropriate notifications, maintain records, and 
ensure that records are accurate and complete. You also are required to 
make these records available either during an inspection or as 
requested. If the records are found to be incomplete or inaccurate, 
then you are subject to an enforcement action requiring compliance, 
monetary sanctions, or both. These penalties can be significant. 
Therefore, we believe that there is a strong incentive for you to 
satisfy the RCRA notification and recordkeeping requirements, and make 
the necessary corrections promptly. As a result, we no longer require 
you to report noncompliance with notice and recordkeeping requirements.
2. Recordkeeping
    Today's rule includes recordkeeping provisions in Sec. 266.350 as 
follows:
     Records in Sec. 266.350(a) reference the existing RCRA 
recordkeeping requirements necessary to demonstrate compliance with the 
LDR treatment standards.
     Records in Sec. 266.350(b), (c) and (d) are necessary to 
demonstrate compliance with the RCRA notification requirement and waste 
container condition of the conditional exemption.
     Records in Sec. 266.350(d) are also necessary to document 
that exempted waste was disposed of at the designated disposal 
facility. It enables regulators to track and identify the shipment of 
low-level radioactive waste that contained exempted waste.
     Records in Sec. 266.350(e) are necessary to document and 
demonstrate compliance with the manifest and transportation condition 
for the facilities who are not directly subject to NRC or NRC Agreement 
State manifest and transportation regulations.
    These records will provide the regulatory agency with information 
during inspections to determine whether you are complying with all of 
the conditions and RCRA requirements of the rule. It is important that 
you maintain a complete and accurate set of the required records, and 
that you make them available when requested. The recordkeeping 
provision is now a RCRA requirement instead of a condition for the 
exemption. Your waste will not automatically lose the exemption if you 
fail to meet the recordkeeping requirements. However, you could be 
subject to an enforcement action requiring compliance, monetary 
sanctions, or both.
    We received comments both supporting and questioning the proposed 
duration of the recordkeeping requirements. Specifically, some 
commenters voiced concern over requiring a generator or treater to 
retain records for the radioactive waste manifest and the notice to 
LLRWDF until closure of the LLRWDF or closure of the generator's or 
treater's facility. These commenters stated that such requirements are 
overly burdensome and inconsistent with existing regulations, and 
indicated that the proposed recordkeeping timeframes could result in 
record retention for decades after a waste was shipped. They pointed 
out that both NRC (10 CFR part 30) and EPA (40 CFR part 262) 
regulations require a generator or treater to retain records for only 
three years. In addition, they stated that 10 CFR 61 already requires a 
LLRWDF to maintain records of the LLW manifest until termination of the 
LLRWDF license activities.
    We reexamine the proposed recordkeeping duration requirement and 
agreed with the commenters that it is not necessary for a generator or 
treater to maintain records beyond three years after the waste is sent 
for disposal. Therefore, the final rule requires the records be 
retained for three years. In the case of maintaining LLW records such 
as the LLW manifest, this time period is consistent with NRC 
regulations under 10 CFR part 20, or equivalent NRC Agreement State 
regulations which generally is also three

[[Page 27249]]

years for generators and treaters. For disposal facilities, the NRC 
manifest records are maintained by the facility until closure of the 
LLRWDF or closure of the generator's or treater's facility. Although 
not required by today's rule, we recommend and encourage LLRWDF's to 
similarly maintain their copy of the exempt-waste notices until 
facility closure since these records could be useful in the future for 
identifying the exempted waste that was disposed at the facility.
    Today's recordkeeping requirement changed from the proposed rule as 
noted below.
     In the proposal we had required you to keep NRC manifest 
records until closure of the disposal facility or closure of your 
facility. In the final rule you only need to keep records of the NRC 
manifest for the time period required by NRC.
     In the proposal we had required you to keep your notices 
to LLRWDFs until closure of the disposal facility or closure of your 
facility. The final rule only requires you to keep the records for 
three years after the exempted waste is sent for disposal.
     The recordkeeping requirement is a RCRA requirement under 
the authority of sections 2002 and 3007 of RCRA instead of a condition 
of the rule. (See loss of exemption discussion in Sec. VIII.F.2.)
     You are not required to report noncompliance related to 
recordkeeping requirements. (See Sec. VIII.D.1. notification 
discussion.)
     The recordkeeping requirements associated with the re-
notification to regulator of changes have been removed because this 
notice no longer exists. (See notification discussion in Sec. 
VIII.D.1.)

E. When Does the Transportation and Disposal Exemption Take Effect?

    Today's rule conditionally exempts eligible waste from RCRA 
Subtitle C manifest, transportation, and disposal requirements because 
we found that RCRA Subtitle C regulation is not necessary if waste 
meeting LDR treatment standards and containerized prior to disposal is 
managed according to NRC manifest, transportation, and disposal 
requirements for the management of the radioactive component of the 
waste (See our technical evaluation, Ref. 7, and our comparison of NRC 
and EPA waste tracking, Ref. 12.) The Agency has chosen to exempt the 
waste from the RCRA regulatory definition of hazardous waste at the 
point where your waste meets LDR treatment standards; you have 
completed NRC or NRC Agreement State equivalent packaging, preparation 
for shipment, and manifest requirements; and you have placed the waste 
on a transportation vehicle destined for an LLRWDF licensed by NRC or 
an Agreement State. Once the exempted waste has been placed on a 
transportation vehicle for disposal, the waste may not be taken to 
other facilities for further management purposes. Stops during 
transportation to pick up additional wastes, or to transfer wastes 
(including radioactive waste transporters using their transfer 
facilities to consolidate radioactive waste shipments) are not 
considered ``further management.''
    Thus when:
     Your eligible waste meets LDR treatment standards;
     You have received return receipts confirming that you have 
notified your RCRA regulatory agency and the receiving LLRWDF;
     You have completed the Packaging and Preparation for 
Shipment requirements for the eligible waste according to NRC Packaging 
and Transportation regulations found under 10 CFR part 71 (or NRC 
Agreement State equivalent regulations);
     You have manifested the treated waste according to NRC 
manifest regulations found under 10 CFR 20.2006 (or NRC Agreement State 
equivalent regulations); and
     You have placed the waste on a transportation vehicle 
destined for the receiving LLRWDF,

then the exempted waste may be transported as a LLW or NARM. Once 
properly containerized at the disposal facility, the exempted waste may 
also be disposed of as LLW or NARM.
    We received comments describing complications if the point of 
exemption occurs when the waste has been placed on a truck destined for 
a disposal facility. The commenter indicated that facilities often use 
centralized waste staging areas to package, label, inspect, and 
manifest wastes in preparation for transportation. According to the 
commenter, placing the point of exemption after the waste is placed on 
the transportation vehicle would require meeting both RCRA hazardous 
waste and NRC radioactive waste packaging and labeling regulations 
instead of meeting just the NRC radioactive waste packaging and 
labeling regulations. However, this was not our intention because we 
found that the NRC or Agreement State packaging, preparation for 
shipment, and manifest requirements are adequate for the shipping and 
tracking of the treated waste. Therefore, we are clarifying that it is 
not necessary to package, label, and manifest the waste as RCRA 
hazardous waste when preparing the waste for transportation to 
disposal. The exemption will start at the moment waste is placed on the 
transportation vehicle if you claim and qualify for this conditional 
exemption.
    Another commenter expressed concern over the proposed requirement 
that exempted waste not go to any other facility en route to the 
designated LLRWDF, other than to a transfer facility. The commenter 
stated that this requirement would not allow a transporter to pick up 
waste from more than one facility and would unnecessarily increase the 
shipping cost and waste shipping traffic. We agree with the commenter 
and are changing the final rule language to clarify that such stops are 
acceptable.

F. Implementation

1. How Will the Transportation and Disposal Conditional Exemption Be 
Implemented?
    The transportation and disposal conditional exemption we are 
promulgating today will require no prior governmental approval or 
review of documentation before your waste exits RCRA Subtitle C 
regulations. This basic framework is consistent with other hazardous 
waste exemptions. It also is consistent with the LDR program. The LDR 
program allows a generator or treater to certify that their hazardous 
waste meets LDR treatment standards and qualifies for land disposal 
without prior governmental approval.
    We are allowing this approach because we believe that there is no 
significant benefit to requiring approval for an exemption. 
Furthermore, the waste exiting RCRA Subtitle C requirements will 
continue to be managed under an alternate regulatory program (NRC or 
NRC Agreement State regulations) that provides appropriate protection 
for human health and the environment. This also is true for those of 
you who self-regulates under the AEA, because your waste also must be 
disposed of at an LLRWDF regulated by NRC or NRC Agreement State. 
Therefore, we conclude that under the proposed method, the waste will 
continue to be properly managed while the regulatory burden is reduced. 
In addition, such implementation has the following advantages:
     The exemption can take effect more quickly;
     It reduces your burden associated with acquiring the 
approval; and

[[Page 27250]]

     It does not impose a burden on the regulatory agency to 
review and approve the exemption.
    However, this approach does not mean that the appropriate 
regulatory authority does not have a role in overseeing the conditional 
exemption. You must keep records of the exemption and make them 
available to the appropriate regulatory authority during inspection or 
upon request. The appropriate regulatory authority may conduct 
inspections, audit records, obtain samples, and perform any other 
information gathering activities authorized under RCRA, including under 
3007, 42 U.S.C. 6927, to determine whether you are in compliance with 
all of the provisions of this exemption. 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.
    RCRA 3008(a) gives the appropriate regulatory agency the authority 
to take enforcement actions when you fail to meet any of the provisions 
of the conditional exemption. The appropriate regulatory authority can 
take a direct enforcement action against you when you fail to meet a 
specific RCRA requirement for your waste under this conditional 
exemption such as the notification or recordkeeping requirement. When 
you lose your exemption for your waste due to failure to meet a 
condition of the exemption, your waste is no longer exempted and it 
becomes a RCRA hazardous waste. The appropriate regulatory authority 
can take enforcement action against you for managing a hazardous waste 
without complying with RCRA hazardous waste requirements. However, note 
that a loss of exemption can be reclaimed (see discussion in the 
following section). Depending on the situation that led to the loss of 
exemption, an exemption could be quickly reclaimed in order to avoid 
any significant consequences. Today's rule also does not change the 
ability of citizens to inform regulators of any circumstance that might 
aid in monitoring and enforcement efforts. A concerned citizen also may 
file a suit under RCRA 7002 against you for failure to meet any of the 
provisions of the conditional exemption. Lastly, the appropriate 
regulatory agency can take actions using authority under 7003 and 3013 
of RCRA, 42 U.S.C. 6973, when it determines that there may be an 
imminent and substantial endangerment to human health or the 
environment.
2. Loss of Transportation and Disposal Conditional Exemption
    Under today's final rule, any waste will automatically lose its 
transportation and disposal conditional exemption if you do not manage 
it in accordance with all of the conditions specified in Sec. 266.315. 
Depending on which condition or conditions you failed to meet and the 
circumstances surrounding the failure, the affected waste could be a 
single drum, a number of drums, a treated waste stream containing 
specific waste codes, or a number of treated waste streams with 
specific waste codes. The exemption is lost at the time of 
noncompliance. The appropriate regulatory authority need not take 
action to remove the exemption. The conditions of the exemption are the 
technical conditions and standards that we have determined to be 
necessary to achieve proper management of the waste and ensure 
protection of human health and the environment. Therefore, we believe 
it is appropriate that a waste automatically lose its exemption if you 
do not manage it in accordance with these technical conditions and 
standards.
    You must report to your RCRA regulatory agency when any of your 
waste loses its exemption. Your report must be in writing, by certified 
delivery, within 30 days of learning of the failure. In your report you 
must describe at a minimum: any specific condition(s) that you failed 
to meet for your waste, information (e.g. name, waste code, and 
quantity) regarding the waste stream that lost the exemption, and the 
date(s) on which the condition(s) were not met. The report will allow 
the appropriate regulatory agency to be aware of any noncompliance and 
to take appropriate actions, if necessary. The appropriate regulatory 
authority may request additional information from you to facilitate the 
investigation. If the failure to meet any of the conditions may 
endanger human health or the environment, then you also must report 
such failure to your RCRA regulatory agency orally within 24 hours of 
learning of the failure. A written notice must follow your oral 
notification within 5 days.
    You also may lose the transportation and disposal conditional 
exemption for your waste for serious or repeated noncompliance with any 
of the RCRA requirement(s) (e.g. notification or recordkeeping) of 
Subpart N. In this situation, the appropriate regulatory authority may 
terminate your ability to claim the conditional exemption for your 
waste. The appropriate regulatory authority also may require you to 
meet additional conditions in order to claim a conditional exemption. 
This provision gives the appropriate regulatory authority the ability 
to revoke a conditional exemption from you if you have serious and 
repeated compliance problems related to the notification or reporting 
requirements.
    When you lose the exemption for your waste, you may also be subject 
to an enforcement action requiring compliance, monetary sanctions, or 
both for any violation of RCRA Subtitle C regulations.
    Today's loss of exemption provision changed from the proposed rule 
in several respects:
     In the final rule, notice to regulator and recordkeeping 
are RCRA requirements instead of conditions of the exemption. 
Noncompliance with these RCRA requirements will not result in automatic 
loss of exemption;
     You can lose your ability to claim a conditional exemption 
for serious or repeated noncompliance with any of the RCRA requirements 
(e.g. notice to regulator or recordkeeping) of Subpart N;
     We have specified minimum reporting requirements for 
reporting a failure to meet a condition; and
     We have added one reporting requirement stating that when 
a waste loses its exemption, if the failure to meet any of the 
conditions may endanger human health or the environment, you must 
orally notify EPA or the Director within 24 hours of discovery of 
failure and follow up with a written notice within 5 days.
    We received comments that both supported and opposed the proposed 
loss of exemption provision. The commenters who supported the provision 
believed that an automatic loss of exemption was a strong incentive for 
ensuring that waste would be properly managed. However, the majority of 
comments expressed concern over losing the exemption due to relatively 
minor administrative violations such as incorrect spelling of a 
facility name.
    Upon further evaluation, we believe that the commenters raised a 
valid issue. We recognize the undue difficulties and burdens associated 
with the automatic loss of exemption due to failure to comply with 
administrative requirements alone. In the proposed rule, the exemption 
conditions included both technical conditions and standards necessary 
to ensure safe management of the waste, and administrative type of 
requirements such as notification and recordkeeping. As proposed, when 
an exemption is lost due to failure to meet the administrative 
requirement alone, you would have to manage the waste as RCRA hazardous 
waste while correcting the infraction and then reclaim the exemption. 
However, the technical conditions and standards of the

[[Page 27251]]

conditional exemption necessary to ensure safe waste management would 
continue to be met. We believe that it is appropriate to impose the 
automatic loss of exemption when technical conditions and standards for 
safe management of the waste are not met and could by itself directly 
lead to impact to human health and the environment. However, we do not 
believe that automatic loss of exemption is warranted for errors 
related to administrative requirements, such as recordkeeping, which by 
themselves are unlikely to lead to environmental harm. We evaluated the 
proposed conditions and made modifications so that the administrative 
requirements, such as recordkeeping, are RCRA requirements instead of 
conditions of the exemption. The conditions as specified under 40 CFR 
266.315 of today's rule are the technical conditions and standards 
necessary to maintain the exemption. We believe this is more consistent 
with the overall approach of today's rule, which is that eligible waste 
is not ``hazardous'' for Subtitle C purposes if properly managed. 
Although it is important that EPA be able to enforce paperwork 
violations, we do not think these violations alone support the 
conclusion that the waste becomes hazardous for Subtitle C purposes. As 
a result, the automatic loss of exemption will only apply to 
noncompliance with technical conditions and standards, and not to 
failure to meet the RCRA requirements of this rule such as 
recordkeeping.
    Nevertheless, the notification and recordkeeping requirements serve 
an important function in the implementation of the conditional 
exemption. These RCRA requirements also play an important role in 
compliance determination. Therefore, we want to maintain a mechanism 
that will provide the appropriate regulatory authority with the ability 
to revoke the exemption for failure to comply with these RCRA 
requirements where necessary. In the final rule, the appropriate 
regulatory authority may terminate your ability to claim a 
transportation and disposal conditional exemption for your waste for 
serious and repeated noncompliance with the RCRA requirements of 
Subpart N. We do not expect this provision to be used casually. We view 
it as a means to ensure that you take the reporting and recordkeeping 
requirements seriously and that you comply with these RCRA requirements 
at all times. Revocation of the transportation and disposal conditional 
exemption would be effective after the Director takes this action and 
would only affect subsequent waste shipments.
    We also received comments regarding the requirement to report 
noncompliance with the conditions and RCRA requirements of the rule. 
Two commenters urged us to consider requiring the facility to orally 
report a condition that endangers human health and the environment 
within 24 hours. We agree with the commenter and note that it is a 
standard RCRA requirement that an oral report, followed up with a 
written notice within five days, be made for situations that threaten 
human health and the environment. Therefore, we have modified the final 
rule to incorporate this provision.
3. Reclaiming the Transportation and Disposal Conditional Exemption
    Under the final rule, any waste will automatically lose its 
exemption if it is not managed in accordance with the conditions under 
Sec. 266.315. However, you may reclaim the exemption for your waste if 
it is again managed in accordance with all of the conditions under 
Sec. 266.315. You may initiate the reclaim process for your waste only 
after you have received the return receipt from your RCRA regulatory 
agency confirming that it has received your loss of exemption notice 
that you have lost the exemption for your waste. When reclaiming a lost 
exemption, you must notify your RCRA regulatory agency that you are 
reclaiming the conditional exemption for your waste. In this reclaim 
notice, you must do the following:
     Explain the circumstance of each failure to meet a 
condition;
     Certify that each failure that caused the waste to lose 
the exemption has been corrected and that the waste again meets all of 
the conditions as of the date you specified; and
     Demonstrate that each failure is not likely to recur, 
listing the specific steps that you have implemented to ensure the 
conditions will be met.
    You also may provide any other information that you want your RCRA 
regulatory agency to consider when it reviews your notice reclaiming 
the exemption.
    We are requiring a notice to reclaim an exemption because the 
conditions of the exemption represent those technical conditions and 
standards which will ensure safe management of the waste. Therefore, we 
believe that it is important that you notify your RCRA regulatory 
agency of events that led to the loss of the exemption so that it can 
take steps, if necessary, to ensure that waste will be managed 
properly. The appropriate regulatory authority can review your records, 
collect additional information, or conduct site visits. This 
communication and information will allow your RCRA regulatory agency to 
work with you to correct the problems that led to the non-compliance 
with the conditions. The appropriate regulatory authority may add 
additional conditions, where appropriate, to the exemption to ensure 
proper management of the waste to protect human health and the 
environment.
    The reclaimed transportation and disposal exemption becomes 
effective when you have received the return receipt confirming that 
your RCRA regulatory agency has received your reclaim notice. The 
return receipt can be a certified U.S. Postal receipt or a certified 
receipt from a mail delivery service. Additionally, as proposed, the 
appropriate regulatory authority may terminate a reclaimed conditional 
exemption if it finds that the claim is inappropriate.
    Today's transportation and disposal exemption reclaim requirement 
is changed from the proposed rule in one area. We added a new 
requirement that you may initiate the reclaim process for your waste 
only after you have received the return receipt confirming that your 
RCRA regulatory agency has received your notice that you have lost the 
exemption for your waste. This provision is not required under the 
storage and treatment exemption. This slight variation is designed to 
ensure that a waste, for which the lost exemption is being reclaimed, 
will not be transported to a LLRWDF before your RCRA regulatory 
authority is made aware that you have lost the exemption for your 
waste.
    We received comments on the issue of whether a transportation and 
disposal exemption could be reclaimed after it has been lost. Some 
commenters supported the proposed rule that allowed the exemption to be 
reclaimed. Some commenters noted that requiring notification to reclaim 
is burdensome and unnecessary. One commenter urged the Agency to 
disallow the reclaiming of an exemption.
    In general, we believe that you should be allowed to reclaim a lost 
exemption. We believe that even a responsible generator or other waste 
handler may, on rare occasion, be in noncompliance with the conditions 
of the exemption. Because the consequence of the loss of the exemption 
for a waste is potentially the full imposition of the RCRA Subtitle C 
regulation, we believe a permanent loss of exemption would unduly 
penalize responsible generators and other waste handlers and downstream 
handlers. However, we want to

[[Page 27252]]

emphasize that failure to meet the conditions can result in RCRA 
enforcement actions, fines, penalties, and the permanent loss of 
exemption. Thus, the mechanism to discourage violation of the 
conditions is in place. Therefore, we are allowing you the opportunity 
to reclaim the exemption for its waste when the infraction has been 
corrected and is not likely to recur.
    We note that other RCRA rules provide a similar provision for 
reclaiming a lost exemption. We established a conditional exemption 
from the RCRA transportation and storage requirements for persons that 
transport or store nonchemical waste military munitions in accordance 
with 40 CFR 266.203 or 266.205, respectively. Under that conditional 
exemption, we established procedures for persons to reclaim a lost 
transportation or storage exemption (see Sec. 266.203[b] and 
Sec. 266.205[c]). The final rule is consistent with the provisions of 
Sec. 266.203 and Sec. 266.205.
    In addition, as stipulated in Sec. 266.360(b), the appropriate 
regulatory authority may terminate a reclaimed exemption if warranted. 
This provision allows the appropriate regulatory authority to deal with 
repeat or serious offenders. Therefore, we believe that the final rule 
is adequately flexible to enable the appropriate regulatory authority 
to react to violations in a manner that is commensurate with the 
severity of the violation. The final rule not only ensures protection 
of the environment, but also motivates facilities to meet the exemption 
conditions.
    In the proposed rule, we solicited comments as to whether we should 
impose a waiting period before the exemption could be reclaimed. We 
asked whether we should provide a 90-day waiting period before the 
reclaimed exemption is effective. We solicited input on whether a 
waiting period is necessary to allow time for the appropriate 
regulatory authority to review the reclaim notification, and to deal 
with repeat or serious offenders. The majority of the commenters 
believed that a 90-day waiting period was unnecessary. They believed 
that you should be able to reclaim the conditional exemption for your 
waste as soon as the noncompliance with the conditions is corrected 
with reasonable assurance that the noncompliance would not recur. 
Several commenters noted that further delay in reclaiming the exemption 
would serve no purpose and could potentially result in uncertain 
regulatory status and/or unreasonable enforcement action. Other 
commenters stated that the appropriate regulatory authority could 
conduct an inspection at any time and take actions if necessary. Some 
states believed that there should not be a binding time period for the 
review. Lastly, one commenter stated that without a waiting period, you 
would be motivated to correct the noncompliance that resulted in the 
loss of conditional exemption as quickly as possible in order to 
minimize penalties and return to exempt operations. However, several 
commenters indicated their support for a 90-day waiting period before 
allowing licensees to reclaim a lost transportation and disposal 
exemption so that there would be time to review documentation, conduct 
an inspection, and/or hold a public hearing before reinstating the 
exemption.
    After considering the comments, we do not believe that it is 
necessary to require a waiting period before the exemption is 
reinstated if the violation has been corrected. This approach is 
generally consistent with the current RCRA regulatory program. For 
example, under the LDR program, hazardous waste generators or treaters 
can send the waste for disposal after self-certifying that the waste 
has met the LDR treatment standard without a waiting period.
    Today's rule also provides the appropriate regulatory authority 
with flexibility regarding the amount of time it has to review a 
request to reclaim an exemption. It can, at any time, review the 
notification, request additional information, or conduct a site 
inspection to verify the validity of the reclaim or the purported 
successfulness of measures designed to prevent the recurrence of a 
failure. By not specifying a time period for review, we are providing 
regulators flexibility and the ability to evaluate any reclaim notice 
at any time and to focus their attention and limited resources as they 
deem most appropriate. This mechanism also avoids the implication that 
a reclaim is approved if the appropriate regulatory authority was not 
able to review the reclaim and respond before the end of the waiting 
period. We note that the appropriate regulatory authority will continue 
to maintain a broad range of inspection, and information collection 
authorities to ensure compliance with the exemption conditions under 
RCRA 3007, 42 U.S.C. 6927. Thus, the appropriate regulatory authority 
has the ability to conduct an inspection at any time, and can take 
enforcement actions, and assess fines and penalties if you are found to 
be in noncompliance with the reclaim requirements.
    We believe that these requirements are sufficient for the 
appropriate regulatory authority to track compliance and conduct 
enforcement activities. Most importantly, today's rule provides the 
appropriate regulatory authority with adequate means to discover, 
evaluate, and, if necessary, terminate an exemption (for example, 
determine that the claim is inappropriate because the claimant failed 
to correct the problem). The appropriate regulatory authority can 
terminate the reclaimed exemption at any time for violations and does 
not need a waiting period to do so. Therefore, the final rule does not 
require a waiting period before you can reclaim an exemption for your 
waste. However, we want to ensure that the appropriate regulatory 
authority is aware that you have lost the conditional exemption for 
your waste before you reclaim the exemption. Therefore, you may not 
reclaim the exemption for your waste until after you have received a 
return receipt confirming that the Director has received your 
notification of loss of exemption. This requirement will allow the 
appropriate regulatory authority to initiate action, if necessary, 
while minimizing your burden.

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

    We conducted a technical assessment to evaluate the protectiveness 
afforded by a combination of the conditions of the exemption and NRC 
criteria for the LLRWDF. We considered a number of factors in the 
analysis:
     LDR treatment and waste container conditions;
     NRC waste form requirement;
     NRC/EPA disposal site properties comparison;
     Disposal unit engineering design and performance;
     NRC groundwater monitoring;
     Other NRC/EPA regulatory comparisons.
    We made our technical determination on the comparability between 
the NRC and EPA disposal systems based on the consideration of all of 
the above factors. This determination is not based solely on any one 
factor, but on the aggregation of all the factors considered.
    In our technical assessment, we considered these factors and the 
potential for release of chemical constituents from LLMW disposed of in 
LLRWDFs, and concluded that the threat of such a release would not be 
significant. Several significant factors that helped support this 
conclusion are briefly summarized below. More detail on these factors, 
and a discussion of other factors that we considered, is provided in 
the proposed rule preamble

[[Page 27253]]

and the technical background document. (See Technical Evaluation, Ref. 
7.)
    We assessed the likelihood of a chemical release from the disposal 
of waste in a LLRWDF under the conditions of this rulemaking. The 
intent of RCRA LDR treatment standards is to significantly reduce the 
toxicity and mobility of chemical constituents. We performed a 
screening risk analysis to assess the potential for leachate releases 
of these constituents from wastes treated to LDR levels. We concluded 
that the potential threat to drinking water would be insignificant. In 
addition, prior to disposal the treated waste must be containerized. 
Therefore, we concluded, based on the treatment to LDR for both RCRA 
and as a condition of this rule, and container conditions along with 
the LLRWDF cap design performance comparable to RCRA Subtitle C 
performance, the potential threat to drinking water would be very low, 
if any.
    We also assessed the protection afforded by NRC waste form 
criteria. NRC waste form criteria for low level waste stipulates that 
the waste be stabilized to ensure the structural integrity of the waste 
for the duration when the radioactive waste is undergoing decay. The 
requirement for waste form is to minimize the potential for waste/
liquid contact and subsequent leachate production. Depending on the 
radioactivity of the waste, the structural integrity of the waste is 
required to last up to 500 years. The waste must pass a series of 
American Society of Testing Methods (ASTM) tests to demonstrate its 
compliance with the waste form criteria. These tests provide indication 
of waste form performance in the area of, among other things, 
structural integrity and resistance to corrosion.
    We evaluated NRC's LLRWDF siting requirements and compared them to 
RCRA hazardous waste disposal facility siting requirements. We found 
that the siting requirements are very similar, with NRC siting 
requirements being more stringent in certain respects. The NRC siting 
requirement for LLRWDFs are designed to enhance the protectiveness of 
the disposal unit and minimize releases to the environment. These 
regulations ban location of disposal facilities in environmentally 
sensitive locations such as, 100-year flood plains, wetlands, and 
coastal high hazard areas. These requirements also mandate restrictions 
for ground water to surface water connectivity on-site.
    We assessed NRC LLRWDF engineering design and performance 
requirements and concluded they will effectively minimize water 
infiltration and waste migration from the disposal cell. The LLRWDFs 
must be designed to limit human exposure to a specified level of 
radioactivity and intrusion by humans and animals. NRC LLRWDF disposal 
regulations require that the engineered landfill design system 
integrate both the site properties (climate, soil geology) along with 
the performance of the cover system. LLRWDFs must be designed to 
provide assurance that concentrations of radioactive material that may 
be released to ground water, surface water, air, soil, plants, or 
animals not result in exposures to humans above specified health-based 
levels. NRC and EPA disposal regulations require a final cover with low 
permeability to minimize infiltration of precipitation and contact of 
waste with infiltrated water. NRC LLRWDF disposal regulations also 
require a landfill design that promotes short liquid/waste residence 
time which would minimize the potential leachate generation at LLRWDFs.
    NRC's ground water monitoring regulations require that groundwater 
be monitored to allow for early detection and mitigation of 
radiological contamination. In practice, the NRC Agreement States have 
also included requirements in the LLRWDFs license to monitor for 
selected chemical constituents.
    We also estimated the annual amount of mixed waste that is expected 
to be disposed of at LLRWDFs under this conditional exemption. 
Commercial sources of mixed waste would constitute less than 0.5% of 
the annual total waste volume at these sites. This amount of disposal 
volume is expected to contribute very limited volumes of hazardous 
waste.
    In addition to the major technical factors outlined above, we also 
analyzed other aspects of the NRC regulatory and licensing program for 
LLRWDFs. This analysis is described in detail in the technical 
background document. (See Technical Evaluation, Ref. 7.) Some of the 
key findings include:
     The NRC licensing process provides for public 
participation and scrutiny of potential disposal facilities, which 
plays an important role in not only the siting of a facility but also 
in prescribing conditions governing its final operation.
     NRC prohibits disposal of waste with free liquids greater 
than 1% by volume, waste contaminated with reactive, explosive, 
volatile, and corrosive materials, and LLW that is incompatible with 
containers used for disposal of LLW.
     NRC regulations require active care disposal facility 
surveillance for up to 100 years under governmental control and 
government ownership.
     NRC's LLRWDF disposal regulations require corrective 
measures for the disposal of radioactive waste to assure that 
corrective measures are taken if a radiation hazard becomes a 
groundwater concern.
    We received 15 comments pertaining to our overall technical 
analysis and conclusions. The eleven comments supporting the technical 
approach came from industry associations, generators, academia, and 
some government agencies. They felt that the approach was thorough and 
presented compelling analysis supporting the conditional exemption. 
They agreed that the combination of LDR treatment in conjunction with 
the stringent controls already in place at the LLRWDFs were protective 
of human health and the environment. Some commenters argued that dual 
regulation is not appropriate and only seems to hinder the timely 
disposal of waste. Based on our analysis that disposal of LLMW would be 
properly managed in a LLRWDF, without degradation to human health and 
the environment, the redundant regulation by RCRA adding additional 
cost and time to permit the facility does not seem prudent.
    In contrast, we also received four negative reactions to the 
technical approach from environmental groups and some State agencies. 
Some of the comments related to the uncertainties inherent in the 
analysis. Another commenter believed that we need to address all 
contingencies and technical aspects before making our final decision. 
Although there are always uncertainties associated with complex 
environmental analysis, we are confident of the conclusions of our 
technical analysis that indicate the RCRA exemption conditions coupled 
with the NRC performance requirements will be protective of human 
health and the environment. Our comfort derives from having designed a 
waste management scheme with multiple redundant systems and conditions 
that will limit contaminant movement. These include waste treatment, 
waster form, containers, cover performance, monitoring, and site-
specific public participation. We believe that we have addressed all 
major technical aspects and waste management contingencies in making 
our decision on the comparability of the two regulatory programs.
    Our responses to major comments on specific technical issues are 
presented in the following sections.

[[Page 27254]]

1. Synergistic Effects
    Commenters indicated that the radioactive portion of the waste 
could negatively influence the nature and mobility of the hazardous 
portion of the waste and similarly the hazardous portion could possibly 
enhance the mobility of the radioactive constituents. Commenters also 
raised concerns regarding potential toxicological interaction between 
the hazardous and radioactive fractions in mixed waste. Interaction 
between radioactive and hazardous waste components that enhance the 
mobility or toxicity of constituents is referred to as ``synergy.'' The 
agency acknowledges that interaction between the waste components may 
be possible. There is not an adequate scientific understanding of such 
processes (e.g., synergy and cumulative interactions) that would allow 
EPA to design additional, and appropriate, management standards, if 
needed. In addition, the current regulatory schemes do not explicitly 
account for such effects. Our redundant control systems would make the 
possibility of such effects remote and go beyond current management 
practices. From a practical perspective, we concluded that the 
synergistic effects between radioactive and hazardous constituents 
would be minimal due to treatment requirements minimizing the hazardous 
constituents, waste form requirements, container conditions of the 
waste minimizing radioactive and hazardous interaction, and cover 
requirements resulting in the lack of liquid to generate leachate. 
Indeed, the container condition will enhance protectiveness over the 
current scheme, under which LLMW could interact more readily in a 
landfill with other radioactive or hazardous wastes.
2. Groundwater Monitoring
    Today's final rule does not require LLRWDFs that accept LLMW under 
the provisions of today's transportation and disposal exemption to 
conduct groundwater monitoring for chemical constituents. These 
facilities already are required to conduct groundwater monitoring for 
radioactive material and other indicators which include selected 
hazardous constituents. We believe that this monitoring will provide 
adequate warning if there is a breach of the containment systems at the 
disposal facility.
    A significant number of commenters agreed with the Agency's 
approach to not require groundwater monitoring for the RCRA 
constituents as one of the conditions of the disposal exemption because 
they believed the current NRC and Agreement provisions adequately 
address the monitoring needs for disposal sites. One commenter pointed 
out that the Agreement States have the authority to require groundwater 
monitoring for non-radiological constituents in the license for 
hazardous constituents under NRC regulations. This commenter noted that 
additional monitoring (if needed) can be best established as part of 
the site license condition with the Agreement State and be tailored to 
the local environmental conditions and the nature of the waste being 
accepted for disposal. EPA's analysis supports this contention. All 
three existing LLRWDFs licensed by the Agreement States have 
groundwater monitoring for RCRA hazardous constituents in their 
licenses. We believe this data will supplement the groundwater 
monitoring data of the radioactive constituents in providing the 
necessary warning sign when there may be a breach of containment at the 
disposal facility. Further, we found no evidence to suggest that these 
facilities have ground water contamination above regulatory levels for 
hazardous constituents as a result of disposal unit design problems or 
management.
    In the proposed rule we specifically asked if commenters knew of 
reasons why we should include groundwater monitoring requirements for 
RCRA hazardous constituents as part of the conditional exemption. Some 
commenters believed that we had not adequately supported our assumption 
that controlling radionuclides will also adequately control hazardous 
constituents, because hazardous constituents may be more mobile than 
radionuclides. One commenter added that monitoring requirements should 
be based on the contents of the disposal cells; that is, if there are 
hazardous constituents in the disposal cell, they should be included on 
the list of analytes to be monitored.
    The concerns expressed by these comments are addressed first and 
foremost by the preconditions established in today's rule for the 
exempted wastes. Specifically, the LLMW will be treated. Organics will 
be destroyed and metals will be immobilized through meeting the LDR 
standards. There will be no free liquid. The waste will then be 
containerized, at a minimum in carbon steel drums, prior to being 
placed in the disposal environment. Stable Class-A waste that is mixed 
with more active Class-B or C waste will meet the NRC requirement of 
high integrity containers (HICs) (e.g., concrete casks). This system of 
controls should preclude both transport alluded to by the commenter 
(e.g., organic solvents either moving faster than other constituents or 
promoting transport of inorganic constituents) and uncontrolled 
leaching of inorganic constituents (e.g., the inorganic constituents 
will be immobilized and unavailable for leaching, if not already 
destroyed by thermal treatment, and will be contained).
    Although we believe the likelihood of hazardous constituent 
releases is minimal for the reasons presented above, we still believe 
that ground water monitoring is a prudent safeguard. The NRC/Agreement 
States already require LLRWDFs to conduct groundwater monitoring for 
radionuclides and other indicators (including selected hazardous 
constituents) using traditional analytical methods. The NRC/Agreement 
States ensure that the monitoring protocols established by the LLRWDFs 
are based on the wastes and constituents disposed of in the facility. 
Therefore, the list of analytes will include indicator constituents 
that are representative of the materials in the facility. In general, 
the migration of metals, whether as hazardous constituents or 
radioactive, will migrate in a similar way. We note that the detection 
of an indicator radioisotope (e.g., Cr-51, Cu-64, Pb-201, Se-75, Tl-
201, or Zn-63) would also serve as an indicator of migration of the 
chemical portion of the waste. For example, if mixed waste contains 
hazardous chromium and radioactive CR-51 and groundwater monitoring 
detects CR-51, it would be reasonable to expect that hazardous chromium 
is also present in groundwater. As noted above, the three operating 
LLRWDFs monitor for RCRA constituents, including metals and some of the 
more mobile organic constituents (e.g., benzene, xylene). In 
conclusion, we are satisfied that the NRC ground water monitoring 
program will provide adequate protections for the exempted wastes 
managed under today's rule.
3. Site-Specific Variance
    The Agency solicited comment on the use of a ``site-specific, risk-
based variance'' approach to determine the waste disposal eligibility. 
We proposed this alternative to the conditional exemption based on 
States' interest to factor in site properties into the risk 
determination. In addition to the site-specific approach, the Agency 
also solicited comment on the need for guidance in support of 
performing site-specific risk assessments. Today's final rule regarding 
the ``conditional exemption'' for disposal does not include the site-
specific, risk-based variance approach as an alternative method for 
exemption. The

[[Page 27255]]

requirements identified in the final rule and the existing NRC and 
Agreement State regulations, guidance, and licences were deemed to be 
adequate and protective for the management of these wastes.
    We received more than forty comments on the use of site-specific, 
risk-based variances for the determination of waste disposal 
acceptability. The comments represented a wide disparity of positions. 
Many comments from States supported the use of the site-specific risk-
based alternative to the conditional exemption. The commenters 
expressed the concern that efforts outside of site-specific modeling 
would not properly reflect the conditions at a specific site, either by 
overestimating or underestimating disposal performance. The commenters 
argued that using a national approach would tend to average site 
conditions and not truly represent any specific site resulting in 
uncertainty around the conclusion regarding the qualifications of 
natural and engineered site conditions.
    A set of industry comments did not support the use of site-
specific, risk-based analysis, in lieu of the conditional exemption. 
Their position was that the conditional exemption was technically sound 
and was instantly available, whereas the site-specific alternative 
would take time to perform and delay decisionmaking.
    One environmental commenter opposed the use of site-specific, risk-
based analysis completely on the grounds that the state of the science 
was not appropriate and too much uncertainty surrounded this type of 
analysis.
    We have decided not to include the site-specific, risk-based 
alternative in the final rule. We concluded that the disposal of LLMW 
in LLRWDFs would be protective and be properly managed based on the 
benefits derived from siting, LDR treatment and waste form 
requirements, and the protection afforded by LLRWDFs licensed pursuant 
to 10 CFR part 61. Our review of NRC regulations, guidance, and 
licenses indicated that disposal facilities provide adequate protection 
for the disposal of LLMW so long as the additional conditions and 
requirements of this rule are met. In summary, the approach adopted in 
this rule will ensure that any potential risks that arise as a 
consequence of site-specific circumstances will be thoroughly reviewed 
and mitigated through the NRC licensing process.

H. Why Is Financial Assurance Beyond 10 CFR Part 61 Not Necessary?

    You are not required to provide additional financial assurance 
beyond what NRC requires under 10 CFR part 61 or an NRC Agreement State 
requires under the state equivalent regulations. This decision is based 
on our review and comparison of EPA and NRC financial assurance 
regulations. (See comparison document, Ref. 18.) Both EPA and NRC 
financial assurance regulations require a disposal facility to provide 
sufficient funding to enable a third-party to conduct closure and post-
closure care activities. Financial assurance for closure and post-
closure activities are the key elements of financial assurance 
requirements under both EPA and NRC regulations. Based on our 
comparison and analysis of EPA and NRC financial assurance regulations, 
we have determined that the financial assurance provided by the NRC 
regulations will ensure that sufficient funds will be available to 
conduct the similar closure and post-closure care activities at a 
LLRWDF as required under RCRA. We note that there are variations 
between EPA and NRC financial assurance requirements. However, we 
conclude that as a whole, the NRC financial assurance requirements for 
the LLRWDF are adequately protective, making additional EPA financial 
assurance requirements for a LLRWDF unnecessary.
    Similar to the financial assurance requirements set out under 40 
CFR part 264 subpart H for a RCRA hazardous waste disposal facility, 10 
CFR part 61 requires a LLRWDF to establish financial assurance that 
will provide funding for activities such as decommissioning and closure 
of the facility, cover placement over the disposal unit, post-closure 
care, and monitoring. NRC and NRC Agreement States do not issue 
licenses to facilities that cannot obtain financial assurance and these 
regulatory authorities will revoke licenses from facilities that cannot 
maintain adequate coverage.
    For post-closure care, the NRC and NRC Agreement States require the 
LLRWDFs to provide financial assurance for an initial monitoring period 
of five years (or longer if deemed necessary by the regulatory 
authority) followed by a period of institutional control. At the 
completion of the five-year (or longer) initial post-closure monitoring 
period, the license of the LLRWDF is transferred from the disposal 
facility operator to the State or other Federal Agency who is the 
property owner. At that time, the next phase of the post-closure care 
period begins. This second phase of the post-closure care period is the 
institutional control period. The activities conducted under the 
institutional control period include monitoring, maintenance of cover, 
and access control. The NRC or NRC Agreement States also require that 
the LLRWDF licensees' financial assurance include all the costs 
associated with the institutional control phase of the post-closure 
care period. Specifically, prior to the issuance of the license, the 
applicant needs to provide for NRC review and approval, a copy of a 
binding arrangement between the applicant and the disposal site owner 
that ensures that sufficient funds will be available to cover the costs 
of monitoring and any required maintenance during the institutional 
control period. (See 10 CFR part 61.) The NRC or NRC Agreement State 
reviews this arrangement periodically to ensure that changes in 
inflation, technology, and disposal facility operations are reflected 
in the arrangements. Thus, the responsibility for funding the 
institutional control period belongs to the licensee and is assured 
prior to the issuance of the license and subsequent transfer of the 
license to the State or Federal Agency for institutional control of the 
LLRWDF. The institutional control period may last up to 100 years thus 
providing financial assurance for a considerably long period of time. 
In comparison, EPA requires RCRA land disposal facilities to provide 
for 30 years of post-closure monitoring unless the permitting authority 
modifies the monitoring period.
    Although we determined that the EPA and NRC financial assurance 
requirements are not identical under a requirement-by-requirement 
comparison, we believe that the overall NRC financial assurance 
requirements are adequately protective of human health and the 
environment for a LLRWDF receiving the exempted waste. However, we 
requested public comment on whether we should require LLRWDFs to 
provide additional RCRA financial assurance as part of the conditional 
exemption.
    Some commenters supported our proposal of not imposing the RCRA 
financial assurance requirement for LLRWDFs, because they believed 
adequate financial assurance exists under NRC regulations. Some of 
these commenters noted that further financial assurance requirements 
could discourage LLRWDFs from accepting the exempted wastes. Other 
commenters believed that it is necessary to impose the additional RCRA 
financial assurance requirement on a disposal facility

[[Page 27256]]

receiving the exempted waste to address the chemical constituents that 
will be disposed of there.
    As discussed above, our analysis showed that the NRC or NRC 
Agreement State provisions for financial assurance will ensure that 
sufficient funds will be available to conduct closure and post-closure 
care activities which are the key elements of RCRA financial assurance 
requirements. We do not expect the cost for closure activities such as 
cover placement and post-closure maintenance activities, at a LLRWDF 
receiving the exempted waste to differ from the cost for the same 
activities at the same LLRWDF if it did not receive the exempted waste. 
Because NRC regulations already require financial assurance for closure 
and post-closure activities, additional funding requirements for the 
same activities would be redundant.
    We also believe that the NRC financial assurance requirement for 
decommissioning activities is adequate for a LLRWDF that accepted the 
exempted waste. We note that NRC guidance has a provision that requires 
cost estimates for decommissioning to include the management of mixed 
waste (which includes the RCRA chemical constituents) during the 
decommissioning process. (See ``NMSS Decommissioning Standard Review 
Plan [NUREG/SR-1727]''.) Therefore, we believe that the NRC financial 
assurance requirement is adequate, and we do not need to require 
additional RCRA financial assurance requirements.

IX. Regulatory Impacts

    We anticipate that implementation of this rule will result in 
positive net benefits, resulting from cost savings and risk reductions. 
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 rule. (See Ref. 14.)
    The primary benefit of this rule is in facilitating treatment and 
disposal of mixed wastes, by addressing problems caused by dual 
regulation of these wastes. We estimate quantified net benefits of this 
rule to range between $4.1 million and $5.9 million per year. 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 final rule compared with waste management 
in the absence of this rule.
    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 agencies, low-level radioactive waste disposal facilities, 
and the generators themselves. These uncertainties and assumptions, 
however, do not affect the Agency's projection 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.

A. What Are the Regulatory Benefits of This Rule?

    The storage component of the rule provides the most significant 
benefits of this rule, from administrative cost savings and from 
allowing certain mixed wastes to decay-in-storage. Dollar savings from 
the disposal portion of this rulemaking are likely to be low, even more 
so if the LLRWDFs (especially Envirocare) do not accept the exempted 
waste for disposal as LLRW. To estimate the impact of the rule, EPA 
first needed to characterize generation and management of low-level 
waste and low-level mixed waste in the nation.
    In 1990, EPA, NRC and the Oak Ridge National Laboratory conducted a 
survey of commercially generated low-level mixed waste. A report of the 
survey findings was published in 1992 under the title National Profile 
on Commercially Generated Low-Level Radioactive Mixed Waste. (See Ref. 
8.) 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.''
    ``The industrial category was estimated to be the largest generator 
and accumulator of mixed waste, with more than 36% of the generation * 
* * of the total mixed waste in the United States in 1990.'' (Ref. 8, 
National Profile, p. 40). Nuclear utilities accounted for roughly 10 
percent of the total commercially generated LLMW volume in the United 
States.
    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 and discarded). Therefore, despite industrial growth over the 
intervening years, we believe that the LLMW volumes generated today may 
be similar to those reported in 1992.
    Based on this research and site visits in 1998, we believe that 
there are a number of LLMW generators, who could benefit from this 
rulemaking. Using the National Profile we estimated that the national 
generation rate of mixed waste was 108,000 cubic feet per year. (See 
Regulatory Impact Analysis, Ref. 14, and Regulatory Impact Analysis, 
Background Documents, Ref. 17.) 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. These 
cost savings are approximated at $2.7 million per year.
     Other administrative cost savings. Generators of mixed 
waste and Federal and State RCRA regulating agencies are expected to 
save approximately $700,000 in administrative burden and costs because 
of this rule.
     Decay-in-storage cost savings. The rule will allow 
facilities to store certain wastes while the radioactivity decays. 
These wastes can then be treated and disposed of 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 $2.6 million per year.
     Other disposal cost savings. This rule will facilitate 
disposal of wastes in LLRWDFs, depending on approval by state 
regulatory agencies and the willingness of LLRWDFs to accept the 
wastes, as well as limitations of the low-level waste disposal compact 
system. These limitations mean that the savings from the disposal 
exemption are expected to be at most $100,000 per year. EPA has not 
estimated savings resulting from reduced storage costs.
     Risk Reductions. EPA anticipates that generators will take 
advantage of

[[Page 27257]]

this rule to allow certain LLMW to undergo decay-in-storage. NRC or the 
NRC Agreement State approves a decay-in-storage process which allows 
certain short-lived radionuclides in these wastes to decay to 
background levels. 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. Generators who comply with existing RCRA 
regulations are handling this waste while still radioactive. This 
decrease in exposure translates to an unquantified risk reduction, 
attributable to the relaxed RCRA storage restrictions in this rule.
    DOE may also save on transportation and disposal costs, to the 
extent that it chooses to meet the conditions for exemption and dispose 
of wastes in commercial disposal facilities licensed by NRC or an NRC 
Agreement State. DOE would not gain permitting or storage cost savings, 
since the storage and treatment conditional exemption regulations in 
this rule do not apply to DOE facilities.

B. What Are the Costs of This Rule?

    Generators taking advantage of storage or disposal exemptions will 
incur costs to meet notification conditions. EPA estimates these costs 
to be approximately $200,000 per year, in the aggregate.
    Under this rule, there will also be some increased costs to EPA and 
RCRA authorized States overseeing management of mixed wastes. We expect 
these entities to incur costs associated with notification conditions 
for generators and treaters of exempted LLMW sending their waste for 
disposal at LLRWDFs and related implementation costs. This will result 
in a small increase in costs for these regulating bureaus estimated at 
$5,000 per year, in the aggregate.

C. What Are the Economic Impacts of This Rule?

    Economic impacts of this rulemaking are expected to be minimal. 
Generators who are not meeting regulatory requirements for disposal 
will incur spending for treatment and disposal of wastes that 
previously had been stranded in storage. These costs are expected to 
total about $300,000 in aggregate across the nation. These are not true 
social costs, though, since these generators are already liable for 
costs of treatment and disposal of these wastes. The effect of this 
rule will be to open up disposal capacity for these 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 requirements. These generators would 
incur not only storage costs, but social costs associated with being in 
violation of RCRA.
    By allowing LLMW to be disposed of 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 LLW potentially to be disposed of at commercial 
LLRWDFs are those generated by the Department of Energy, including 
wastes from site cleanup and remediation activities. Wastes from 
commercial LLMW alone are not likely to have any significant impact on 
these markets.
    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 may introduce some competition into the market 
for disposal of LLMW.

X. State Authorization

    As of December 2000, a total of 43 states and one territory were 
authorized to implement RCRA mixed waste regulations of 1986 (51 FR 
24504), which provide for the hazardous components of mixed waste to be 
managed under RCRA Subtitle C.\1\ Today's rule will apply to the 
hazardous component of mixed waste in a State that has mixed waste 
authorization, but only when the State amends its State law and becomes 
authorized to implement this final rule containing a new conditional 
exemption. The effective date will be the date the State is authorized 
for this final rule. This rulemaking affects the RCRA base program 
implementing the Resource Conservation and Recovery Act of 1976. 
Therefore, authorization for this rule is not automatic, but depends 
upon State action. In addition, since the flexibility provided by a 
conditional exemption for disposal and permitting is considered less 
stringent than the current RCRA program, States are not required to 
adopt this final rule. When choosing to adopt this rule, States have 
the option of being more stringent than a federal requirement where 
they deem it appropriate. (See 40 CFR 271.1(i).)
---------------------------------------------------------------------------

    \1\ The District of Columbia, Massachusetts, Maryland, Rhode 
Island and West Virginia are RCRA authorized States that have 
adopted mixed waste regulations under State law but have not yet 
been authorized to implement the mixed waste regulations. This rule 
will become effective in these jurisdictions when the State adopts 
and is authorized for the final rule.
---------------------------------------------------------------------------

    In Alaska, Hawaii, Iowa, Puerto Rico, and the Virgin Islands, which 
are jurisdictions not authorized to implement any part of the RCRA 
program, the federal government implements the RCRA program. In these 
jurisdictions, this final rule will become effective 180 days after the 
date of publication of this rule.
    We encourage States and territories to adopt this conditional 
exemption. The conditional exemption does not preclude regulation or 
enforcement by States against generators who are not eligible for the 
exemption or who do not meet the conditions or requirements of the 
exemption. Under this regulatory framework, States retain their 
regulatory oversight and RCRA enforceability provisions over a 
noncompliant claimant. The flexibility provided by this rule is 
conditional. A LLMW generator must meet the eligibility provisions and 
conditions to qualify for and maintain the exemption from hazardous 
waste storage and disposal regulations. Failure to meet the conditions 
results in automatic loss of the exemption; failure to meet the 
requirements may result in fines and penalties under the RCRA hazardous 
waste enforcement program. In addition, since the transportation and 
disposal exemption may involve interstate transportation of 
conditionally exempt waste, the exemption must be authorized in both 
the State of the generator and the State where the disposal site is 
located.

    Note: If the waste is transported through a State which 
considers the waste to be hazardous, the transporter must be in 
compliance with 40 CFR part 263, including manifest provisions. EPA 
recommends that the initiating facility note that the waste is 
subject to today's exemption in block 15 of the manifest.

XI. Relationship With Other RCRA and Environmental Programs

A. What Is the Relationship of Today's Rule With Other RCRA Regulatory 
Programs?

1. Does This Rule Change How You Determine if a Waste Is Hazardous?
    No, the hazardous waste determination remains unchanged. This rule 
is a conditional exemption from the RCRA regulatory definition of 
hazardous waste. Under current RCRA regulations, if you generate a 
solid waste, you must determine if it is a

[[Page 27258]]

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.
2. Can LLMW or Eligible NARM Be a Non-Hazardous Waste Under This Rule?
    LLMW, or Eligible NARM, meeting the eligibility criteria and all 
the conditions under the storage and treatment or transportation and 
disposal conditional exemption, will be conditionally exempt from the 
regulatory definition of hazardous waste under RCRA Subtitle C, and 
therefore managed as non-hazardous waste under this rule.
3. How does the LLMW conditional exemption differ from delisting under 
40 CFR 260.22?
    The evaluation criteria used for delisting differ from today's 
rule. In the 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. In 
addition, conditionally exempt LLMW must be managed in accordance with 
applicable NRC regulations. Delisted waste is generally managed as an 
industrial solid waste.
4. Will My Waste Analysis Plan of My RCRA-Permitted TSDF Change?
    No, your waste analysis plan will not change. If you are a 
generator or an owner or an operator of a 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 40 CFR part 268. If you treat 
to Land Disposal Restriction standards, you must have a waste analysis 
plan. This includes DOE treatment facilities treating LLMW to meet the 
conditions for the disposal exemption.
5. Will the Final Rule Change How the RCRA Closure Requirements Apply 
to My Disposal Facility?
    If you have a disposal facility subject to NRC or NRC Agreement 
State regulations for disposal of LLW, and you accept conditionally 
exempt waste under this rule, the hazardous waste facility closure 
requirements do not apply to any units at your facility receiving only 
conditionally exempt LLMW.
6. How Does the Conditional Exemption Relate to RCRA Air Emission 
Standards?
    RCRA Air Emission Standards do not apply to a LLRWDF where 
conditionally exempt LLMW or Eligible NARM waste has been disposed of.

B. What Is the Relationship of This Rule to Other Environmental 
Programs?

1. How Are CERCLA Actions Affected by Today's Rule?
    The affect of today's rule 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 
final rule for a generator to take advantage of the exemption provided, 
including that the waste must be disposed of at a LLRWDF that is 
licensed by the NRC or an NRC Agreement State, and is in compliance 
with the 10 CFR part 61 or equivalent State regulations. Off-site rule 
requirements in 40 CFR part 300 continue to apply to CERCLA remediation 
wastes.
    Mixed waste managed during on-site waste remediation must meet all 
applicable or relevant and appropriate requirements of Federal or State 
environmental laws or justify a waiver from those standards. This rule 
requires that the disposal facility be licensed and overseen by the NRC 
or NRC Agreement State. On-site CERCLA response action must comply with 
the substantive provisions of environmental regulations and standards, 
but not the administrative provisions. Therefore, no permit or license 
is required for on-site activities. In accordance with the National 
Contingency Plan and CERCLA, today's regulation is not expected to be 
an applicable requirement at most CERCLA sites managing LLMW. However, 
relevant and appropriate determinations are site-specific 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 part 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.

XII. Effective Date November 13, 2001

XIII. Regulatory Assessment Requirements

A. Executive Order 12866: Determination of Significance

    Under Executive Order (E.O.) 12866, (58 FR 51,735 October 4, 1993) 
EPA must determine whether the regulatory action is ``significant,'' 
and therefore, subject to OMB review and the requirements of the 
Executive Order The Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
     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;
     Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
     Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
     Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order
    Under the terms of Executive Order 12866, it has been determined 
that this rule is a ``significant regulatory action'' because it raises 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order This rule addresses problems caused by dual regulation of mixed 
wastes, and facilitates treatment and disposal of mixed wastes. We 
estimate quantified net benefits of this rule to range between $4.1 
million and $5.9 million per year. As a significant regulatory action 
this rule was submitted to OMB for review. Changes made in response to 
OMB

[[Page 27259]]

suggestions or recommendations will be documented in the public record.
    Under the terms of Executive Order 12866, EPA must prepare for any 
significant regulatory action an assessment of the action's 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 final rule is not economically significant, although it 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 final rule 
appears in section IX of this preamble. A regulatory impact analysis 
has been prepared and is available in the docket for today's final 
rulemaking.

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.''
    This final 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 the rule will not impose any requirements on States or any 
other level of government. As explained above, today's final rule may 
provide regulatory flexibility for generators and treaters of LLMW by 
establishing a conditional exemption from RCRA Subtitle C requirements, 
which States are not required to adopt. Thus, the requirements 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 rule on 
low-income populations and minority populations. This waste would be 
stored according to other regulatory authorities (NRC or NRC Agreement 
States) which offer comparable protection to RCRA Subtitle C. We 
evaluated the demographics of the areas surrounding the three existing 
commercial low-level radioactive waste disposal facilities. We did not 
find disproportionate populations of minority groups residing in the 
surrounding area. Most importantly, we do not expect adverse 
environmental impact as a result of the disposal rule. The RCRA 
exempted waste will have been treated, for example, to destroy 
hazardous organic constituents and stabilize toxic metals. The waste 
would then be placed in a container, managed, and disposed of, in an 
environmentally sound manner according to NRC or NRC Agreement State 
equivalent regulations for disposal of low-level radioactive waste. 
Therefore, we believe there will not be disproportionately high and 
adverse environmental or economic impacts on any minority or low-income 
group, or on any community.

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 is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and 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 rule is not subject to Executive Order 13045 because it is not 
an economically significant rule as defined by Executive Order 12866, 
and because the Agency does not have reason to believe the 
environmental or health and safety risks addressed by this action 
present a disproportionate risk to children. We find that waste 
management under NRC regulations for radioactive waste could diminish 
(not increase) concerns regarding environmental health or safety risks 
for all, including children.

E. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    On November 6, 2000, the President issued Executive Order 13175 (65 
FR 67249) entitled, ``Consultation and Coordination with Indian Tribal 
Governments.'' Executive Order 13175 took effect on January 6, 2001, 
and revoked Executive Order 13084 (Tribal Consultation) as of that 
date. EPA developed this final rule, however, during the period when 
Executive Order 13084 was in effect; thus, EPA addressed tribal 
considerations under Executive Order 13084. Under Executive Order 
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 Executive 
Order requires EPA to provide to OMB, 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, Executive 
Order 13084 requires EPA to develop an effective process that permits 
elected officials and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.''
    Prior to the publication of the November 1999 proposal, we briefed 
two organizations with an interest in tribal environmental issues on 
both the storage and disposal exemptions we

[[Page 27260]]

were proposing. The organizations were the American Indian 
Environmental Office, and the executive director and staff of the 
Tribal Association of Solid Waste and Emergency Response (TASWER). 
TASWER staff indicated that there was an annual tribal conference the 
following week and the representatives of tribes in attendance would be 
informed about our proposed rule and encouraged to comment. None of the 
comments received were identified by the sender as representing tribes. 
Based on the discussion at our meetings with tribal organizations, we 
do not expect this rule to significantly or uniquely affect the 
communities of Indian tribal governments. Accordingly, the requirements 
of Section 3(b) of Executive Order 13084 do not apply to this rule.

F. The Regulatory Flexibility Act (RFA) as Amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 
601 et seq.)

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that meets 
the Small Business Administration size standards established for 
industries as described in the North American Industry Classification 
System (see http://www.sba.gov/size/NAICS-cover-page.html); (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analysis is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' (5 U.S.C. 603 
and 604.) Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    The overall economic effect of this regulation has been determined 
to be a net savings to all regulated entities that choose to avail 
themselves of a conditional exemption for storage or disposal of the 
mixed wastes they generate. This rule will not impose additional costs 
on any entities. We have therefore concluded that today's final rule 
will relieve regulatory burden for all small entities.

G. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 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 section 202 of the UMRA, EPA 
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, section 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 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, and informing, educating, and advising small 
governments on compliance with the regulatory requirements.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector because it imposes no enforceable 
duty on any State, local, or tribal governments or the private sector. 
Thus, today's rule is not subject to the requirements of sections 202 
and 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''), Public Law No. 104-113 Section 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, with explanations when 
the Agency decides not to use available and applicable voluntary 
consensus standards. This final rule does not involve technical 
standards. In 1997, EPA and NRC published in the Federal Register joint 
testing guidance for sampling and testing of mixed waste. Facilities 
subject to this rule may continue to use that guidance, which allows 
analysis of smaller samples and reduces exposure of workers to 
radiation hazards.

I. Paperwork Reduction Act

    Under the implementing regulations for the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.), 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, 
does not unnecessarily duplicate 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 
(OMB) for approval before the collection of information goes into 
effect.
    The information collection requirements in this final rule have 
been submitted for approval to OMB under the Paperwork Reduction Act. 
An

[[Page 27261]]

Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1922.01), and a copy may be obtained from Sandy Farmer, Office 
of Environmental Information, Collection Strategies Division, U.S. 
Environmental Protection Agency (2137), 1200 Pennsylvania Ave., NW., 
Washington, DC 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 action would require no government 
approval before being effective. For this final rule, information 
collection, maintenance, and reporting issues are especially important. 
Successful implementation of today's rule will depend upon the 
documentation, certification, and verification provided by the 
information collection.
    The general authority for this rule is 1006, 2002(a), 3001-3009 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), and the Federal 
Facility Compliance Act of 1992 (FFCA), 42 U.S.C. 6905, 6912(a), 6921-
6929 and 6934. 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 OMB 
under the Paperwork Reduction Act, and have been assigned one of the 
following 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 includes new information collection requirements subject to OMB 
review under the Paperwork Reduction Act. To be eligible for a 
conditional exemption for stored low-level mixed waste, facilities must 
notify EPA or the RCRA Authorized State of their claims for a 
conditional exemption for their LLMW and storage units. If they do not 
choose to claim a conditional exemption, generators will have to comply 
with the existing Subtitle C recordkeeping requirements for the low-
level mixed wastes they generate.
    This rule also includes 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 a low-level radioactive 
waste disposal facility licensed by NRC or an NRC Agreement State. If 
the generator or treater of LLMW chooses not to claim an exemption, it 
remains subject to the existing hazardous waste disposal requirements.
    Some of the requirements contained in today's final action entail 
new reporting and recordkeeping requirements for members of the 
regulated public, if an exemption is claimed. The requirements have 
practical utility in that they are 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 final rule, they will be subject to the 
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 receiving 
a generator's notice to claim a conditional exemption, and for 
reviewing a generator's notice to reclaim a conditional exemption.
    We have prepared a full ICR in support of today's final rule. We 
estimate the total annual public burden associated with the storage and 
treatment conditional exemption to average 3.5 hours per respondent. We 
estimate the reporting burden to average 1.9 hours per respondent 
annually, including time for reading the regulations, and preparing and 
submitting notifications. We estimate the recordkeeping burden to 
average 1.6 hours per respondent annually, including the time for 
recording the results of inventories and inspections, and maintaining 
records pertaining to the mixed waste exemption.
    The total public burden associated with the transportation and 
disposal exemption is estimated to average 3.9 hours per respondent. We 
estimate the reporting burden to average 2.9 hours per respondent 
annually, including time for reading the regulations, and preparing and 
submitting notifications. The annual recordkeeping burden is estimated 
to average 1.0 hours per respondent and includes the time for 
maintaining records pertaining to the mixed waste exemption.
    Burden means the total time, effort, or financial resources 
expended to generate, maintain, retain, disclose, or provide 
information to or for a Federal agency. Burden 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 methods 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.
    We received no public comment on the proposed information 
collection.

J. The Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective November 13, 2001.

XIV. 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.

[[Page 27262]]

4. ``Comparison of the EPA's RCRA Requirements and the NRC's 
Licensing Requirements for the Treatment (In Tanks and Containers) 
and Storage of Low-Level Mixed Wastes at Nuclear Facilities'', April 
2001.
5. Comment Summary Document--Approach to Reinventing Regulations of 
Storing Mixed Low-Level Radioactive Waste; Advance Notice of 
Proposed Rulemaking (ANPRM), 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, July 1999.
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: Storage, Treatment, Transportation, 
and Disposal of Mixed Waste, February 2001.
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: Storage, Treatment, Transportation, 
and Disposal of Mixed Waste--Supplemental Documents, February 2001.
18. Comparison of Financial Assurance Requirements Under EPA and NRC 
Regulations, November, 2000.
19. Discussion with DOT on Mixed Waste Transportation on August 
1999.
20. Letter from Elizabeth A. Cotsworth, Director, Office of Solid 
Waste, to J. Dale Givens, State of Louisiana, Department of 
Environmental Quality, March 27, 1998.

    Note that this is a list of supporting documents for both the 
proposed and final rules. Reference documents numbered 5, 11, 13, and 
15 were referred to in the proposed rule but not in the final rule.

List of Subjects in 40 CFR Part 266

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

    Dated: April 30, 2001.
Christine Todd Whitman,
Administrator.

    For the reasons set forth in the preamble 40 CFR part 266 is 
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 is revised to read as 
follows:

    Authority: 42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 6905, 6906, 
6912, 6921, 6922, 6924-6927, 6934, and 6937.

    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 definitions apply to this subpart?

Storage and Treatment Conditional Exemption and Eligibility

266.220   What does a storage and treatment conditional exemption 
do?
266.225   What wastes are eligible for the storage and treatment 
conditional exemption?
266.230   What conditions must you meet for your LLMW to qualify for 
and maintain a storage and treatment exemption?

Treatment

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

Loss of Conditional Exemption

266.240   How could you lose the conditional exemption for your LLMW 
and what action must you take?
266.245   If you lose the storage and treatment conditional 
exemption for your LLMW, can the exemption be reclaimed?

RecordKeeping

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

Reentry Into RCRA

266.255   When is your low-level mixed waste no longer eligible for 
the storage conditional exemption?

Storage Unit Closure

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

Transportation and Disposal Conditional Exemption

266.305   What does the transportation and disposal conditional 
exemption do?

Eligibility

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

Conditions

266.315   What are the conditions you must meet for your waste to 
qualify for and maintain the transportation and disposal exemption?
266.320   What treatment standards must your eligible waste meet?
266.325   Are you subject to the manifest and transportation 
condition in Sec. 266.315(b)?
266.330   When does the transportation and disposal exemption take 
effect?
266.335   Where must your exempted waste be disposed of?
266.340   What type of container must be used for disposal of 
exempted waste?

Notification

266.345   Whom must you notify?

Recordkeeping

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

Loss of Transportation and Disposal Conditional Exemption

266.355   How could you lose the transportation and disposal 
conditional exemption for your waste and what actions must you take?
266.360   If you lose the transportation and disposal conditional 
exemption for a waste, can the exemption be reclaimed?

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

Terms


Sec. 266.210  What definitions apply to this subpart?

    This subpart uses the following special definitions:
    Agreement State means a state that has entered into an agreement 
with the NRC under subsection 274b of the Atomic Energy Act of 1954, as 
amended (68 Stat. 919), to assume responsibility for regulating within 
its borders byproduct, source, or special nuclear material in 
quantities not sufficient to form a critical mass.
    Certified delivery means certified mail with return receipt 
requested, or equivalent courier service, or other means, that provides 
the sender with a receipt confirming delivery.
    Director refers to the definition in 40 CFR 270.2.
    Eligible Naturally Occurring and/or Accelerator-produced 
Radioactive Material (NARM) is NARM that is eligible for the 
Transportation and Disposal Conditional Exemption. It is a

[[Page 27263]]

NARM waste that contains RCRA hazardous waste, meets the waste 
acceptance criteria of, and is allowed by State NARM regulations to be 
disposed of at a low-level radioactive waste disposal facility (LLRWDF) 
licensed in accordance with 10 CFR part 61 or NRC Agreement State 
equivalent regulations.
    Exempted waste means a waste that meets the eligibility criteria in 
266.225 and meets all of the conditions in Sec. 266.230, or meets the 
eligibility criteria in 40 CFR 266.310 and complies with all the 
conditions in Sec. 266.315. Such waste is conditionally exempted from 
the regulatory definition of hazardous waste described in 40 CFR 261.3.
    Hazardous Waste means any material which is defined to be hazardous 
waste in accordance with 40 CFR 261.3, ``Definition of Hazardous 
Waste.''
    Land Disposal Restriction (LDR) Treatment Standards means treatment 
standards, under 40 CFR part 268, that a RCRA hazardous waste must meet 
before it can be disposed of in a RCRA hazardous waste land disposal 
unit.
    License means a license issued by the Nuclear Regulatory 
Commission, or NRC Agreement State, to users that manage radionuclides 
regulated by NRC, or NRC Agreement States, under authority of the 
Atomic Energy Act of 1954, as amended.
    Low-Level Mixed Waste (LLMW) is a waste that contains both low-
level radioactive waste and RCRA hazardous waste.
    Low-Level Radioactive Waste (LLW) is a radioactive waste which 
contains source, special nuclear, or byproduct material, and which is 
not classified as high-level radioactive waste, transuranic waste, 
spent nuclear fuel, or byproduct material as defined in section 11e.(2) 
of the Atomic Energy Act. (See also NRC definition of ``waste'' at 10 
CFR 61.2)
    Mixed Waste means a waste that contains both RCRA hazardous waste 
and source, special nuclear, or byproduct material subject to the 
Atomic Energy Act of 1954, as amended.
    Naturally Occurring and/or Accelerator-produced Radioactive 
Material (NARM) means radioactive materials that:
    (1) Are naturally occurring and are not source, special nuclear, or 
byproduct materials (as defined by the AEA) or
    (2) Are produced by an accelerator. NARM is regulated by the States 
under State law, or by DOE (as authorized by the AEA) under DOE orders.
    NRC means the U. S. Nuclear Regulatory Commission.
    We or us within this subpart, means the Director as defined in 40 
CFR 270.2.
    You means a generator, treater, or other handler of low-level mixed 
waste or eligible NARM.

Storage and Treatment Conditional Exemption and Eligibility


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

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


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

    Low-level mixed waste (LLMW), defined in Sec. 266.210, is eligible 
for this conditional exemption if it is generated and managed by you 
under a single NRC or NRC Agreement State license. (Mixed waste 
generated at a facility with a different license number and shipped to 
your facility for storage or treatment requires a permit and is 
ineligible for this exemption. In addition, NARM waste is ineligible 
this exemption.)


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

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

Treatment


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

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

Loss of Conditional Exemption


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

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

[[Page 27264]]

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


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

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

Recordkeeping


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

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

Reentry Into RCRA


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

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

Storage Unit Closure


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

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

Transportation and Disposal Conditional Exemption


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

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

Eligibility


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

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

Conditions


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

    You must meet the following conditions for your eligible waste to 
qualify for and maintain the exemption:
    (a) The eligible waste must meet or be treated to meet LDR 
treatment standards as described in Sec. 266.320.
    (b) If you are not already subject to NRC, or NRC Agreement State

[[Page 27265]]

equivalent manifest and transportation regulations for the shipment of 
your waste, you must manifest and transport your waste according to NRC 
regulations as described in Sec. 266.325.
    (c) The exempted waste must be in containers when it is disposed of 
in the LLRWDF as described in Sec. 266.340.
    (d) The exempted waste must be disposed of at a designated LLRWDF 
as described in Sec. 266.335.


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

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


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

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


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

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


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

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


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

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

Notification


Sec. 266.345  Whom must you notify?

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

Recordkeeping


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

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

Loss of Transportation and Disposal Conditional Exemption


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

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

[[Page 27266]]

waste, or require you to meet additional conditions to claim a 
conditional exemption, for serious or repeated noncompliance with any 
requirement(s) of subpart N of this part.


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

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

[FR Doc. 01-11408 Filed 5-15-01; 8:45 am]
BILLING CODE 6560-50-P