[Federal Register Volume 67, Number 147 (Wednesday, July 31, 2002)]
[Proposed Rules]
[Pages 49649-49656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19325]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SW-FRL-7252-7]


Hazardous Waste Management System; Proposed Exclusion for 
Identifying and Listing Hazardous Waste and a Determination of 
Equivalent Treatment

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA, also, ``the Agency'' 
or ``we'' in this preamble) is proposing to grant two petitions 
submitted by the University of California--E.O. Lawrence Berkeley 
National Laboratory (LBNL). The first petition is to exclude (or 
``delist'') certain hazardous wastes from the lists of hazardous 
wastes. Today's proposed rule proposes to grant LBNL's petition to 
delist its F002, F003, and F005 waste, and requests public comment on 
the proposed decision. EPA reviewed all of the waste-specific 
information provided by LBNL and determined that the petitioned waste 
is nonhazardous with respect to the original listing criteria.
    The Agency is also proposing to grant LBNL's second petition, which 
is for a determination of equivalent treatment (DET) for the catalytic 
chemical oxidation (CCO) technology that LBNL used to treat the 
original mixed waste.
    EPA reviewed all of the specific CCO treatment information provided 
by LBNL and determined that the CCO treatment is equivalent to 
combustion. Today's proposed rule proposes to grant LBNL's DET petition 
for the CCO technology, and requests public comment on the proposed 
decision. If the proposed DET becomes final, the treatment residues 
generated from LBNL's use of the CCO technology will have met the 
applicable LDR technology standard for DOO1 waste. If the proposed 
delisting and DET become final, then the petitioned waste can be 
disposed at an authorized low-level radioactive waste facility.

DATES: Comments on this proposed rule will be accepted until September 
16, 2002. We will stamp comments postmarked after the close of the 
comment period as ``late.'' These ``late'' comments may not be 
considered in formulating final decisions.
    Any person may request a hearing on this proposed rule by filing a 
written request by August 15, 2002. The request must contain the 
information prescribed in 40 CFR 260.20(d).

ADDRESSES: Please send two copies of your comments to Rich Vaille, 
Associate Director, Waste Management Division (WST-1), U.S. 
Environmental Protection Agency, 75 Hawthorne Street, San Francisco, CA 
94105.
    Any person may request a hearing on these proposed decisions by 
filing a written request with Jeff Scott, Director, Waste Management 
Division (WST-1) U.S. Environmental Protection Agency, 75 Hawthorne 
Street, San Francisco, CA 94105.
    The RCRA regulatory docket for this proposed rule is located at the 
U.S. Environmental Protection Agency Records Center, 75 Hawthorne 
Street, San Francisco, CA 94105, and is available for viewing from 9 
a.m. to 4 p.m., Monday through Friday, excluding Federal holidays. The 
docket contains the petition, all information submitted

[[Page 49650]]

by the petitioner, and all information used by EPA to evaluate the 
petition. Call the EPA Region 9 RCRA Record Center at (415) 947-4596 
for appointments. The public may copy material from the regulatory 
docket at $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 800-424-9346. For technical information on specific 
aspects of these petitions, contact Cheryl Nelson at the address above 
or at 415-972-3291, e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed 
in the following outline:

I. Overview Information
    A. What Actions is EPA proposing to approve?
    B. How Will LBNL Manage the Waste if these Petitions are 
Approved?
    C. When would EPA finalize these proposed actions?
II. Background
    A. What laws and regulations give EPA the authority to delist 
wastes?
    B. What is a Determination of equivalent treatment?
    C. How would these actions affect states?
III. EPA's Evaluation of the Petitions
    A. What waste did LBNL describe in their petitions to EPA?
    B. What information and Analyses did LBNL submit to support 
their petitions?
    C. How is the petitioned waste generated?
    D. How did LBNL sample and analyze the waste for the petitions?
    E. What were the results of LBNL's analysis?
    F. How did EPA evaluate the risk of delisting the petitioned 
waste?
    G. What other factors did EPA consider in its evaluation of 
these petitions?
    H. What did EPA conclude about LBNL's analysis?
    I. What is EPA's final evaluation of these petitions?
IV. Conditions for Exclusion
    A. What conditions are associated with this exclusion?
    B. What Happens if LBNL fails to meet the conditions of the 
exclusion?
V. Effect on State Authorizations
VI. Effective Date
VII. Administrative Requirements

I. Overview Information

A. What Actions Is EPA Proposing To Approve?

    First, EPA is proposing to grant LBNL's petition to have 
approximately 200 US gallons of residues from treatment of low-level 
mixed waste from the National Tritium Labeling Facility (NTLF), a 
research facility located within LBNL, excluded (delisted) from the 
definition of a hazardous waste. LBNL is a multi-program laboratory 
operated by University of California under contract with the Department 
of Energy (DOE). The petitioned wastes are treatment residues generated 
through treatment of mixed waste. Mixed waste is defined as waste that 
contains hazardous waste subject to the requirements of the Resource 
Conservation and Recovery Act (RCRA) and source, special nuclear, or 
by-product material subject to the requirements of the Atomic Energy 
Act (AEA). See 42 U.S.C. 6903 (41), added by the Federal Facility 
Compliance Act of 1992. LBNL's petitioned waste contains tritium, a 
radioactive hydrogen isotope (3H) manufactured for use as a 
tracer in biomedical research.
    The petitioned wastes meet the definition of listed F002, F003, and 
F005 RCRA hazardous wastes because they are derived from treatment of 
mixed wastes that are listed for these waste codes. LBNL petitioned EPA 
to grant a one-time, generator-specific delisting for the treatment 
residues, because LBNL believes that its wastes do not meet the 
criteria for which these types of wastes were listed. The petition is 
for a one-time delisting because all of the petitioned waste has been 
generated, and will not be generated again.
    Based on our review, the petitioned waste is essentially tritiated 
water with no detectable organic chemical constituents, and therefore 
we agree with the petitioner that the petitioned waste is nonhazardous 
with respect to the original listing criteria. Furthermore, EPA finds 
no additional constituents or factors which would cause the petitioned 
waste to be hazardous under RCRA. Our proposed decision to delist the 
waste is based upon our evaluation of the process which generates the 
waste, our first-hand observations of the process used to treat the 
waste, and our review of the analytical data submitted to support the 
petition.
    In reviewing this petition, we considered the original listing 
criteria and the additional factors required by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA). See 222 of Pub. L. 98-616 (HSWA), 42 
U.S.C. 6921(f), and 40 CFR 260.22(d)(2) through (4). We compared and 
evaluated the petitioned waste against the listing criteria and factors 
cited in 40 CFR 261.11(a)(2) and (3).
    We also evaluated the waste for other factors or criteria which 
could cause the petitioned waste to be hazardous under RCRA. These 
factors included: (1) Whether the waste is considered acutely toxic; 
(2) the toxicity of the constituents; (3) the concentrations of the 
constituents in the waste; (4) the tendency of the hazardous 
constituents to migrate and to bioaccumulate; (5) persistence of the 
constituents in the environment once released from the waste; (6) 
plausible and specific types of management of the petitioned waste; (7) 
the quantity of waste produced; and (8) waste variability.
    If our review had found that the petitioned waste remained 
hazardous based on the factors for which we originally listed the 
waste, we would have proposed to deny the petition. If this decision 
becomes final, the DOE would still retain authority over this waste 
because of the tritium, a low-level radioactive constituent.
    Secondly, LBNL has petitioned EPA under 40 CFR 268.42(b) for a 
determination that the CCO technology used to perform the treatment of 
the original mixed waste is equivalent to combustion as defined in 
EPA's Land Disposal Restriction (LDR) Program for treatment of high-
total organic carbon (TOC) subcategory D001 ignitable wastes. Because 
LBNL's original mixed waste is also a D001 ignitable waste, it must be 
treated via a combustion technology prior to disposal to meet the LDR 
treatment standard.
    We are proposing to grant the DET because LBNL has adequately 
demonstrated that the CCO technology is equivalent to combustion for 
the treatment of organic wastes. This demonstration is based primarily 
on the following key factors: (1) The CCO achieves a destruction and 
removal efficiency of more than 99.999% at a temperature near or above 
500 deg.C; (2) the CCO system does not emit Hydrogen Chloride Vapor 
(HCl) or particulate matter; and (3) the CCO was operated in compliance 
with Federal, State and local hazardous waste and air emission 
regulations.
    If the proposed DET becomes final, the treatment residues generated 
from LBNL's use of the CCO technology will have met the applicable LDR 
technology standard for DOO1 waste. The LDR treatment standards for 
F002, F003, and F005 wastes are numeric standards. The CCO technology 
treated the original mixed wastes to below these numeric standards.

B. How Will LBNL Manage the Waste if These Petitions are Approved?

    If EPA's proposed decisions are made final, the petitioned waste 
will no longer be subject to regulation as a hazardous waste under 
Subtitle C of RCRA thereby allowing LBNL the option to dispose this 
low-level radioactive waste at a Nuclear Regulatory Commission (NRC), 
licensed or a DOE-authorized low-level radioactive waste disposal 
facility. Without these approvals, the petitioned waste would remain a 
mixed waste

[[Page 49651]]

subject to both RCRA regulations and DOE orders. Available treatment 
facilities for high activity tritium-containing mixed wastes are 
extremely limited and are not designed to capture the tritium during 
treatment. There are no available mixed waste disposal facilities for 
high-activity tritium-containing mixed wastes. LBNL and numerous other 
research facilities nationally are currently storing this type of mixed 
waste onsite pending more cost effective and environmentally acceptable 
treatment and disposal options.

C. When Would EPA Finalize These Proposed Actions?

    HSWA specifically requires the EPA to provide notice and an 
opportunity for public comment before granting or denying a final 
exclusion. Thus, EPA will not make a final decision to grant an 
exclusion until it has addressed all timely public comments (including 
any at public hearings) on today's proposal.
    While not required, EPA encourages public involvement in our 
decision making and is therefore also seeking comments on our proposed 
DET decision. Additionally, to clearly describe the regulatory 
approvals needed for LBNL to dispose the petitioned waste offsite, it 
is necessary to describe both the delisting and the DET petitions.
    Since this proposed rule would reduce the existing requirements for 
a person generating hazardous wastes, the regulated community does not 
need a six-month period to achieve compliance in accordance with 
section 3010 of RCRA as amended by HSWA. Therefore, the exclusion and 
the DET would become effective immediately upon finalization.

II. Background

A. What Laws and Regulations Give EPA the Authority to Delist Wastes?

    On January 16, 1981, as part of its regulations implementing 
section 3001 of RCRA, EPA published a list of hazardous wastes from 
non-specific and specific sources. EPA has amended this list several 
times. See 40 CFR 261.31 and 261.32. EPA lists these wastes as 
hazardous because: (1) they exhibit one or more of the characteristics 
of hazardous wastes identified in Subpart C of part 261 (that is, 
ignitability, corrosivity, reactivity, and toxicity) or (2) they meet 
the criteria for listing contained in Sec. 261.11(a)(2) or (a)(3).
    ``Listed'' wastes are often from specific industrial processes. 
Individual waste streams may vary, however, depending on raw materials, 
industrial processes, and other factors. Thus, while a listed waste is 
generally hazardous, a specific waste from an individual facility 
meeting the listing description may not be.
    For this reason, 40 CFR 260.20 and 260.22 provide an exclusion 
procedure, allowing persons to demonstrate that a specific waste from a 
particular generating facility \1\ should not be regulated as a 
hazardous waste. Section 260.20 establishes general procedures for 
rulemaking petitions, and Sec. 260.22 establishes the specific 
requirements for a petition to exclude a waste at a particular facility 
from the list of hazardous wastes in Part 261.
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    \1\ Many industrial processes result in the production of 
hazardous waste, as well as useful products and services. A 
``generating facility'' is a facility in which hazardous waste is 
produced, and a ``generator'' is a person who produces hazardous 
waste or causes hazardous waste to be produced at a particular 
place. See 40 CFR 260.10 for regulatory definitions of 
``generator,'' ``facility,'' ``person,'' and other terms related to 
hazardous waste, and 40 CFR part 262 for regulatory requirements for 
generators.
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    To have their wastes excluded, petitioners must first show that 
wastes generated at their facilities do not meet any of the criteria 
for which the wastes were listed. See 40 CFR 260.22(a)(1) and the 
background documents for the listed wastes. Second, the EPA 
Administrator must determine, where he/she has a reasonable basis to 
believe that factors (including additional constituents) other than 
those for which the waste was listed could cause the waste to be a 
hazardous waste, that such factors do not warrant retaining the waste 
as a hazardous waste. Accordingly, a petitioner must also demonstrate 
that the waste does not exhibit any of the hazardous waste 
characteristics (i.e., ignitability, reactivity, corrosivity, and 
toxicity), and must present sufficient information for the EPA to 
determine whether the waste contains any other toxicants at hazardous 
concentrations.
    See 40 CFR 260.22(a)(2) and the background documents for the listed 
wastes. Although wastes which are ``delisted'' (i.e., excluded) have 
been evaluated to determine whether or not they exhibit any of the 
characteristics of hazardous waste, generators remain obligated under 
RCRA to determine whether or not their wastes continue to be 
nonhazardous based on hazardous waste characteristics (i.e., not 
exhibiting hazardous waste characteristics, including any promulgated 
subsequent to a delisting decision.)
    In addition, mixtures containing listed hazardous wastes and 
residues from the treatment, storage, or disposal of listed hazardous 
wastes are also considered hazardous wastes. See 40 CFR 
261.3(a)(2)(iii) and (c)(2)(i), referred to as the ``mixture'' and 
``derived-from'' rules, respectively. Such wastes are also eligible for 
exclusion but remain hazardous wastes unless and until they are 
excluded.
    On October 10, 1995, the Administrator delegated to the Regional 
Administrators the authority under 40 CFR 260.20 and 260.22 to approve 
or deny petitions submitted by generators within their Regions 
(National Delegation of Authority 8-19) in States not yet authorized to 
administer a delisting program in lieu of the Federal program. 
California is not authorized to administer the delisting program and 
therefore EPA Region 9 has the authority to approve or deny delisting 
petitions in California.

B. What Is a Determination of Equivalent Treatment?

    Under Section 3004(m) of RCRA, EPA is required to set ``levels or 
methods of treatment, if any, which substantially diminish the toxicity 
of the waste or substantially reduce the likelihood of migration of 
hazardous constituents from the waste so that short-term and long-term 
threats to human health and the environment are minimized''. EPA 
implements section 3004(m) by establishing land disposal restriction 
treatment standards based on the performance of best demonstrated 
available technology (BDAT). We have generally established two types of 
treatment standards: (1) a numerical, concentration-based treatment 
limit for each constituent of concern, or (2) a method of treatment 
that must be used to treat a particular constituent or constituent(s). 
In either case, the treatment standard is based on the BDAT.
    Under the second approach where a technology is specified as the 
treatment standard, EPA allows facilities to submit petitions (or 
applications) demonstrating that an alternative treatment method can 
achieve a measure of performance equivalent to that achievable by the 
EPA-specified method. This demonstration of equivalency, known as a 
determination of equivalent treatment if approved, is typically both 
waste-specific and site-specific. Such approvals are based on: (1) 
Demonstrations of equivalence for an alternative method of treatment 
based on a statistical comparison of technologies, including a 
comparison of specific design and operating parameters; (2) the 
development of a concentration-based standard that utilizes a surrogate 
or indicator compound that guarantees effective treatment of the 
hazardous constituents; and (3) the development of a new

[[Page 49652]]

analytical method for quantifying the hazardous constituents.\2\
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    \2\ See 40 CFR 268.42(b) and the preamble for the Third 
Scheduled Wastes; Final Rule (55 FR 22536, June 1, 1990) for more 
information
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    Thus, in determining whether a technology is equivalent to the 
specified technology, EPA carefully evaluates the treatment process, 
including examining the characteristics of the residuals that are 
generated, and compares the performance of this alternative treatment 
process to the specified method of treatment. We also look at any other 
potential adverse environmental impacts, including releases of 
hazardous constituents to air and water. See Chemical Waste Management 
v. EPA, 976 F.2d 2, 17 (D.C. Cir. 1992), explaining the relevance of 
assessing releases to media other than land in determining whether 
treatment is minimizing threats, as required by RCRA section 3004 (m).
    The original mixed wastes generated by NTLF are regulated under 
RCRA as F002, F003, F005 and high-TOC D001 category wastes. The 
applicable LDR treatment standards for F002, F003, and F005 are numeric 
standards. LBNL treated NTLF mixed wastes with its CCO technology. The 
treatment residues do not contain any detectable chemical constituents 
above their respective LDR treatment standards.
    The LDR treatment standard for high-TOC ignitable liquid (D001) is 
a technology standard based upon combustion (40 CFR 268.40). The 
combustion standard is defined as ``high temperature destruction 
technologies, such as combustion in incinerators, boilers, or 
industrial furnaces operated in accordance with the applicable 
requirements. * * *'' (40 CFR 268.42). While NTLF mixed wastes could be 
treated via incineration or boiling for energy recovery, the available 
incinerators or boilers that could treat these wastes would result in 
release of nearly all of the tritium in the mixed waste to the 
environment. LBNL developed an alternative technology, the CCO 
technology, that includes engineering controls designed to capture and 
retain tritium, so that the mixed waste can be managed in a manner that 
minimizes releases to the environment. EPA has determined that this CCO 
technology is equivalent to combustion. If the proposed DET becomes 
final, the treatment residues generated from LBNL's use of the CCO 
technology will have met the applicable LDR technology standard for 
DOO1 waste.

C. How Would These Actions Affect States?

    This proposed rule, if promulgated, would be issued under the 
Federal (RCRA) delisting and demonstration of equivalent treatment 
programs. States, however, are allowed to impose their own, non-RCRA 
regulatory requirements that are more stringent than EPA's, pursuant to 
section 3009 of RCRA. These more stringent requirements may include a 
provision which prohibits a Federally issued exclusion from taking 
effect in a state. Because a petitioner's waste may be regulated under 
a dual system (i.e., both Federal and State programs), petitioners are 
urged to contact State regulatory authorities to determine the current 
status of their wastes under the State laws. Furthermore, some States 
are authorized to administer a delisting and/or demonstration of 
equivalent treatment program in lieu of the Federal program, i.e., to 
make their own decisions. Therefore, these proposed actions, if 
promulgated, would not apply in those authorized States. If the 
petitioned waste will be transported to any State with delisting 
authorization, LBNL must obtain delisting authorization from that State 
before the waste may be managed as nonhazardous in that State.

III. EPA's Evaluation of the Petitions

A. What Waste Did LBNL Describe in Their Petitions to EPA?

    On June 30, 1999, LBNL petitioned EPA to exclude from the list of 
hazardous wastes at 40 CFR 261.31, an initial volume of approximately 
105 US gallons and an approximate annual volume of 65 US gallons of CCO 
treatment residues generated at the NTLF and designated as F002, F003, 
and F005 listed mixed wastes. F002, F003, and F005 wastes are spent 
halogenated and non-halogenated solvent mixtures from non-specific 
sources. LBNL also included in this submittal a demonstration of 
equivalent treatment petition for this same waste as this waste is also 
high-TOC subcategory D001 ignitable wastes.
    Since submitting the petitions, the NTLF has generated an 
additional approximately 95 gallons of treatment residues. There will 
be no additional treatment residues from the CCO process. Therefore, 
the total amount of waste LBNL has petitioned to delist and for which 
it has sought demonstration of equivalent treatment approval is a total 
fixed amount of 200 US gallons.
    The EPA reviews a petitioner's estimated volume and, on occasion, 
has requested a petitioner to re-evaluate the estimated waste 
generation rate. EPA accepts LBNL's estimate of the fixed volume of 
waste.

B. What Information and Analyses Did LBNL Submit To Support Their 
Petitions?

    To support its delisting petition under 40 CFR 260.20(b) and 
260.22(i), LBNL submitted: (1) a detailed description, including 
Material Safety Data Sheets, of the chemicals and processes used to 
generate and treat the wastes, (2) descriptions and schematic diagrams 
of the treatment system, (3) analyses for total constituent analyses 
for all organic compounds listed in Appendix VIII of 40 CFR Part 261 
using an in-house Gas Chromatograph (GC) equipped with both a Flame 
Ionization Detector (FID) and a Mass Spectrometer (MS), and (4) total 
constituent analyses of surrogate nonradioactive samples by an 
independent commercial laboratory for industrial solvents, volatile 
organic compounds, and semi-volatile organic compounds using EPA Test 
Methods 8015 (Modified), 8260, and 8270, respectively.
    In addition to the above, to support its DET petition under 40 CFR 
268.42(b), LBNL submitted: (1) calculations demonstrating the 
destruction and removal efficiency for its CCO technology, (2) detailed 
information on the monitoring and inspection procedures for the CCO 
technology, and (3) information demonstrating compliance with local and 
state environmental regulations.

C. How Is the Petitioned Waste Generated?

    The petitioned waste is the treatment residues from CCO (treatment) 
of the original mixed wastes. The original mixed waste was generated by 
NTLF, a noncommercial research organization designated by the DOE and 
the National Institutes of Health to conduct tritium labeling research 
and development. (NTLF began operating in 1982 and was managed by the 
University of California at LBNL. NTLF ceased conducting National 
Institutes of Health-funded research on December 31, 2001 and is now 
undergoing closure.) Treatment options for mixed waste are extremely 
limited and prohibitively expensive. The only approved treatment option 
under RCRA for NTLF's tritium-containing mixed waste is incineration or 
boiling for energy recovery, which result in the release of the tritium 
to the environment. LBNL and numerous other research facilities 
nationally are currently storing their tritium-containing mixed waste 
onsite pending more cost effective and environmentally

[[Page 49653]]

acceptable treatment and disposal options.
    In 1996, LBNL began a study to evaluate the effectiveness of 
treating tritiated mixed waste using CCO technology. The concept of CCO 
is to destroy the hazardous portion of the mixed waste while capturing 
the radioactive portion for future recycling or proper disposal. As 
part of this study, LBNL constructed two CCO units at the NTLF (one for 
surrogate non-radioactive wastes and one for mixed wastes) and 
conducted a treatability study by treating both surrogate and mixed 
waste samples. The treatability study was conducted in accordance with 
the California State treatability study exclusion in Title 22 of the 
California Code of Regulations (CCR) Section 66261.4 (e) and (f).
    The CCO technology involves high-temperature decomposition of 
organic chemicals in the presence of a catalyst. Treatment by the CCO 
generates mainly carbon dioxide gas and tritiated water. Many of the 
mixed waste samples prior to treatment contained low concentrations of 
acetonitrile and some contained low concentrations of chloroform. After 
treatment the tritiated water did not contain detectable concentrations 
of acetonitrile and chloroform. The tritiated water was generally 
acidic with a pH range from 2 to 3 but LBNL staff measured the pH of 
each batch of tritiated water and neutralized it to a pH of between 5 
and 9. The tritiated water is considered RCRA hazardous waste F002, 
F003, and F005 because it is derived from a mixed waste (due to the 
``derived-from'' rule discussed above).
    The CCO process also generates bubbler water, which is water that 
is used in the process to ensure efficient capture of tritiated water 
from the gas after treatment. Following treatment, the bubbler water is 
stabilized to prevent release of tritium by mixing it with the silica 
gel, an inert substance, through which it was vented during the CCO 
process.
    The wastes proposed for delisting are the tritiated water and the 
bubbler water mixed with CCO-process silica gel.

D. How Did LBNL Sample and Analyze the Waste for the Petitions?

    LBNL developed the sampling and analysis plan for the petitioned 
wastes in consultation with EPA Region 9. LBNL operated two CCO units 
during the treatability study; one for mixed waste and one for non-
radioactive waste surrogate samples \3\ that were identical in chemical 
composition to the mixed waste samples.
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    \3\ Joint EPA/NRC mixed waste testing guidance offers two 
strategies for helping to maintain radiation exposures As Low As is 
Reasonably Achievable (ALARA) if testing is required for mixed 
waste. These strategies are the use of a sample size of less than 
100 grams, as long as the resulting test is sufficiently sensitive 
to measure the constituents of interest at the regulatory levels, 
and the use of surrogate materials, as long as they are chemically 
identical to the mixed waste and faithfully represent the hazardous 
constituents in the waste mixture. (Joint NRC/EPA Guidance on 
Testing Requirements for Mixed Radioactive and Hazardous Waste. 62 
FR 62080 (November 20, 1997)).
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    Because there are no commercially available analytical laboratories 
with the ability to analyze high activity mixed wastes from NTLF (due 
to the level of radioactivity), all analytical testing for these mixed 
wastes was conducted in-house by LBNL and NTLF staff. As a quality 
control measure, non-radioactive surrogate waste samples were sent for 
analysis to an offsite commercial laboratory and results were compared 
to the in-house data.
    The two CCO units were operated using a batch process. Prior to 
each batch, the mixed waste sample was analyzed in-house to identify 
each organic chemical constituent and its relative concentration. In 
many cases, these data were used to create an identical surrogate 
sample which was also then analyzed in-house prior to treatment. After 
treatment, the radioactive treatment residue was analyzed in-house to 
identify any remaining organic chemical constituents. LBNL analyzed the 
surrogate treatment residues (non-radioactive) in-house and sent splits 
of the same surrogate residues offsite to a commercial laboratory for 
analysis. LBNL treated and then analyzed a total of approximately 71 
batches of mixed waste samples and 15 batches of surrogate samples. 
These samples represent 100% of all wastes treated by LBNL during the 
treatability study. Additionally, LBNL analyzed two bubbler water 
samples from two different batches of surrogate sample treatment in-
house.
    As part of the delisting petition, LBNL submitted seven sets of 
analytical data from mixed waste samples, six sets of data from 
surrogate waste samples, and two sets of data from the bubbler water. 
LBNL chose these sets of data as representative of the total data set. 
LBNL also made available to EPA all of the remaining analytical data 
from the treatability study. For the in-house testing data, LBNL 
provided the experimental data documentation from the operation of the 
CCO, and the test results (GC chromatograms).
    LBNL's in-house testing method used direct liquid injection gas 
chromatography to minimize the volume of the sample. The LBNL method 
used two detectors, an MS and an FID. Together, these detectors can 
detect all organic compounds in 40 CFR Part 261, Appendix VIII 
including those that were present in the original mixed waste and 
surrogate samples prior to treatment. LBNL also tested all samples for 
pH in-house using pH strips. LBNL did not test for inorganic or metal 
compounds because, based upon the processes and chemicals that LBNL 
used to produce these wastes, these compounds were not present in the 
original mixed waste or surrogate samples.
    The surrogate samples that were sent to an off-site commercial 
analytical laboratory were analyzed by EPA Test Methods 8015 (modified) 
for Industrial Solvents and Method 8260 for Volatile Organic Compounds. 
Several samples were also tested by Method 8270 for Base Neutral and 
Acid Extractable Organic Compounds (semivolatile compounds).

E. What Were the Results of LBNL's Analysis?

    There were no organic compounds above LBNL's quantitation limits in 
any of the treatment residues or in the bubbler water from the 
treatment of the original mixed wastes. LBNL's in-house testing 
procedures were able to achieve a quantitation limit in the range of 
0.1 to 0.5 parts per million (ppm).
    With the exception of chloroform in very low concentrations (up to 
0.011 ppm) in a few samples, detectable organic compounds were not 
detected in any of the surrogate (non-radioactive) treatment residues. 
Because chloroform was not present in the original surrogate samples 
prior to treatment, the chloroform is a laboratory contaminant 
introduced by the offsite commercial laboratory.
    On the basis of generator knowledge, LBNL did not test for 
inorganic constituents as no inorganic constituents were used in the 
processes that produced the original mixed waste.
    All of the analytical results indicate that the treatment residues 
are water (with tritium in the radioactive samples) and therefore do 
not exhibit the hazardous waste characteristics of toxicity; 
reactivity; or ignitability. As discussed previously, LBNL measured the 
pH on all treatment residues. The pH ranged from 5 to 9 and therefore 
none of the residues exhibited the hazardous waste characteristic of 
corrosivity.
    EPA does not generally validate submitted test data before 
proposing delisting decisions. The sworn affidavit

[[Page 49654]]

submitted with the petition binds the petitioner to present truthful 
and accurate results under penalty of perjury. LBNL submitted a signed 
Certification of Accuracy and Responsibility statement required by 40 
CFR 260.22(i)(12).

F. How Did EPA Evaluate the Risk of Delisting the Petitioned Waste?

    In order for EPA to delist a particular waste, the petitioner must 
demonstrate: (1) The waste does not meet any of the criteria under 
which the waste was listed, (2) the waste does not exhibit any of the 
hazardous waste characteristics defined in 40 CFR 261.21 through 
261.24, and (3) there are no additional constituents in the waste other 
than those for which it was listed, that would cause the waste to be a 
hazardous waste (40 CFR 260.22(a)). For petitioned wastes that contain 
detectable chemical constituents, EPA generally makes this 
determination by gathering information to identify plausible routes of 
human or environmental exposure (i.e., groundwater, surface water, air) 
and using fate and transport models to predict the release of hazardous 
constituents from the petitioned waste once it is disposed. The 
transport model predicts potential exposures and impacts of the 
petitioned waste on human health and the environment. The model that 
EPA uses is a Windows-based software tool, the Delisting Risk 
Assessment Software (DRAS) Program. The DRAS program estimates the 
potential releases of waste constituents and predicts the risk 
associated with those releases using several EPA models including the 
EPACMTP (EPA's Composite Model for leachate migration with 
Transformation Products) fate and transport model for groundwater 
releases. For a detailed description of the DRAS program and the 
EPACMTP model, see 65 FR 58015, September 27, 2000.
    For this petition, EPA believes that LBNL has met the three 
criteria listed in 40 CFR 260.22(a). For our review, it was not 
necessary to use the DRAS model because this waste does not contain any 
detectable concentrations of chemical constituents other than water and 
tritium (which is not an EPA RCRA regulated waste constituent subject 
to delisting).

G. What Other Factors Did EPA Consider in Its Evaluation of These 
Petitions?

    We considered other agencies' regulatory controls that would apply 
to the petitioned waste. The waste proposed for delisting is tritiated 
water which is a low-level radioactive waste. The waste was generated 
at a DOE facility and therefore is subject to DOE regulation. If 
delisted, the waste must be disposed in an NRC-licensed or DOE 
authorized low-level radioactive waste disposal facility. Because NRC/
DOE low-level radioactive waste disposal facilities cannot accept RCRA 
hazardous waste, the waste must be delisted from RCRA before it can be 
disposed. If the waste is not delisted, then LBNL must continue to 
store the waste in their RCRA permitted storage facility (onsite) until 
such time as a viable disposal alternative is available for the waste.
    We also considered the regulatory controls over the operation of 
the CCO unit. The waste proposed for delisting is treatment residues 
from catalytic chemical oxidation of mixed waste. LBNL operated the CCO 
unit under a California State RCRA treatability study exclusion (22 CCR 
66261.4(e) and (f)) that provides a conditional exclusion from the 
hazardous waste regulations. This exclusion is designed to allow small 
volume studies of new technologies for treatment of hazardous wastes. 
Once a volume limit has been reached, facilities must obtain a RCRA 
hazardous waste treatment permit to continue using the treatment 
technology. The State of California Department of Toxic Substances 
Control (DTSC), who is the authorized RCRA regulatory authority with 
jurisdiction over this facility, conducted an extensive investigation 
of the CCO process and concluded that it was operated in compliance 
with the treatability study exclusion. LBNL has concluded its 
treatability study of the CCO process and is no longer using this 
technology, therefore, there will be no need to seek a permit in the 
future.

H. What Did EPA Conclude About LBNL's Analysis?

    After reviewing LBNL's petition, EPA concludes that: (1) No RCRA 
hazardous constituents are likely to be present above detection limits 
in the treatment residues or the bubbler water on silica gel generated 
by catalytic chemical oxidation treatment of the original mixed waste 
at LBNL, and (2) the petitioned waste does not exhibit any of the 
characteristics of ignitability, corrosivity, reactivity, or toxicity. 
See 40 CFR 261.21, 261.22, 261.23, and 261.24, respectively.
    We conclude that the waste is delistable because the exposure 
threat to RCRA hazardous constituents is not existent, therefore 
achieving a de minimus risk level. Further, even though they are no 
longer subject to EPA regulatory control, the treatment residues 
maintain their low-level radioactive waste status and must still be 
managed in accordance with DOE orders and NRC regulations. By removing 
EPA regulatory control over this waste, LBNL has the option to dispose 
the waste offsite at a DOE authorized or an NRC licensed disposal 
facility.
    We also conclude that LBNL has adequately demonstrated that the CCO 
process is equivalent to combustion for the treatment of organic 
wastes. This demonstration is based primarily on the following key 
factors: (1) The CCO achieves a destruction and removal efficiency of 
more than 99.999% at a temperature near or above 500 deg.C, (2) the CCO 
system does not emit HCl or particulate matter, and (3) the CCO was 
operated in compliance with Federal, State and local hazardous waste 
and air emission regulations.

I. What Is EPA's Final Evaluation of These Petitions?

    We have reviewed the sampling procedures used by LBNL and have 
determined they satisfy EPA criteria for collecting representative 
samples of the petitioned waste. The descriptions of the treatment 
process and the analytical data, together with the NRC/DOE requirements 
that the petitioned waste be managed as low-level radioactive waste, 
provide a reasonable basis for EPA to grant both the delisting and the 
DET petitions. We believe the data submitted in support of the 
petitions show that the waste will not pose a threat when managed as a 
non-hazardous low-level radioactive waste and disposed of in an NRC-
licensed or DOE-authorized low level radioactive waste disposal 
facility. We therefore propose to grant LBNL an exclusion and a DET for 
the waste generated by CCO treatment at LBNL.
    If we finalize these proposed petitions, the Agency will no longer 
regulate the petitioned waste under 40 CFR parts 262 through 268 and 
the permitting standards of part 270.

IV. Conditions for Exclusion

    The petitioner, LBNL, must comply with the requirements in 40 CFR 
part 261, Appendix IX, Table 1. The text below gives the rationale and 
details of those requirements.

A. What Conditions Are Associated With This Exclusion?

    If the proposed exclusion is made final, it will apply only to 200 
US gallons of petitioned waste at LBNL. This is a one-time exclusion 
for this waste. We would require LBNL to file a new delisting petition 
if it generates more than 200 US gallons of waste.

[[Page 49655]]

LBNL must manage waste volumes greater than 200 US gallons as mixed 
waste unless and until we grant a new exclusion. If this exclusion 
becomes final, LBNL's management of the wastes covered by this petition 
would no longer be within RCRA Subtitle C jurisdiction.
    If delisted, the treatment residues would still be low-level 
radioactive waste subject to NRC regulations and DOE orders. DOE orders 
require that the petitioned waste be solidified to help prevent 
mobilization of the tritium. NRC regulations and DOE orders also 
require that the waste be transported to, and disposed by, NRC-licensed 
or DOE-authorized facilities. While EPA has no regulatory authority 
over disposal of radioactive-only wastes, we do have authority to 
prescribe that the delisted waste be managed and disposed in a manner 
consistent with our analysis of the acceptable risk for this waste. Our 
risk analysis is based upon the assumption that the waste, once 
delisted, remains a low-level radioactive waste subject to DOE Orders 
and NRC regulations. We therefore propose to condition the delisting 
upon LBNL properly managing and disposing the waste in accordance with 
applicable NRC regulations or DOE orders as applicable.
    If LBNL discovers that a condition or assumption related to the 
characterization of this waste that was used in the evaluation of this 
petition is not as reported in the petition, they will be required to 
report any information relevant to that condition or assumption in 
writing to the Regional Administrator within 10 calendar days of 
discovering that condition.
    The purpose of this condition is to require LBNL to disclose new or 
different information that may be pertinent to the delisting. This 
provision will allow us to reevaluate the exclusion based on this new 
information in order to determine if our original decision was correct.
    If we discover such information from any source, we will act on it 
as appropriate. Further action may include repealing the exclusion, 
modifying the exclusion, or other appropriate action deemed necessary 
to protect human health or the environment. EPA has the authority under 
RCRA and the Administrative Procedures Act, 5 U.S.C. 551 et seq. to 
reopen the delisting under the conditions described above.
    In order to adequately track wastes that have been delisted, we 
will require that LBNL provide a one-time notification to any State 
regulatory agency to which or through which the delisted waste will be 
transported for disposal. LBNL will be required to provide this 
notification at least 60 calendar days prior to commencing these 
activities. Failure to provide such notification will be a violation of 
the delisting, and may be grounds for revocation of the exclusion or 
enforcement.

B. What Happens if LBNL Fails to Meet the Conditions of the Exclusion?

    If LBNL violates the terms and conditions established in the 
exclusion, the Agency may start procedures to suspend or revoke the 
exclusion, and/or initiate enforcement actions.

V. Effect on State Authorizations

    This proposed exclusion, if promulgated, would be issued under the 
Federal RCRA delisting program. States, however, may impose more 
stringent regulatory requirements than EPA pursuant to Section 3009 of 
RCRA. These more stringent requirements may include a provision which 
prohibits a Federally-issued exclusion from taking effect in the State. 
Because a petitioner's waste may be regulated under a dual system 
(i.e., both Federal (RCRA) and State (RCRA) or State (non-RCRA) 
programs), petitioners are urged to contact State regulatory 
authorities to determine the current status of their wastes under the 
State laws.
    Furthermore, some States are authorized to administer a delisting 
program in lieu of the Federal program (i.e., to make their own 
delisting decisions). Therefore, this proposed exclusion, if 
promulgated, may not apply in those authorized States, unless it is 
adopted by the State. If the petitioned waste is managed in any State 
with delisting authorization, LBNL must obtain delisting authorization 
from that State before the waste may be managed as nonhazardous in that 
State.

VI. Effective Date

    EPA is today proposing to grant LBNL's petition. This proposed 
rule, if made final, will become effective immediately upon such final 
publication. The Hazardous and Solid Waste Amendments of 1984 amended 
Section 3010 of RCRA to allow rules to become effective in less than 
six months when the regulated community does not need the six-month 
period to come into compliance. That is the case here, because this 
rule, if finalized, would reduce the existing requirements for a 
facility generating hazardous wastes. EPA believes that this exclusion 
should be effective immediately upon final publication. These reasons 
also provide a basis for making this rule effective immediately, upon 
final publication, under the APA, 5 U.S.C. 553(d).

VII. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a rule of general applicability and therefore is not a 
``regulatory action'' subject to review by the Office of Management and 
Budget. Because this action is a rule of particular applicability 
relating to a particular facility, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.), or to sections 202, 203, and 205 of the Unfunded Mandates 
Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because the rule will affect 
only one facility, it will not significantly or uniquely affect small 
governments, as specified in section 203 of UMRA, or communities of 
Indian tribal governments, as specified in Executive Order 13175 (65 FR 
67249, November 6, 2000). For the same reason, this 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 (64 FR 43255, August 10, 1999). This 
rule also is not subject to Executive Order 13045 (62 FR 19885, April 
23, 1997), because it is not economically significant.
    This rule does not involve technical standards; thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) do not apply. As required by 
section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in 
issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 261

    Hazardous waste, Recycling, and Reporting and recordkeeping 
requirements.

    Authority: Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: July 11, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
    For the reasons set out in the preamble, 40 CFR Part 261 is 
proposed to be amended as follows:

[[Page 49656]]

PART 261--IDENTIFICATION AND LISTING HAZARDOUS WASTE

    1. The authority citation for Part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
6938.

    2. In Table 1, of Appendix IX of Part 261 add the following waste 
stream in alphabetical order by facility to read as follows:
    Appendix IX to Part 261--Wastes Excluded Under Secs. 260.20 and 
260.22.

                               Table 1.--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
            Facility                         Address                             Waste Description
----------------------------------------------------------------------------------------------------------------
 
       *                  *                   *                   *                  *                   *
                                                          *
Lawrence Berkeley National       Berkeley, California...........  Treated ignitable and spent halogenated and
 Laboratory.                                                       non-halogenated solvent mixed waste (D001,
                                                                   F002, F003, and F005), and bubbler water on
                                                                   silica gel generated during treatment at the
                                                                   National Tritium Labeling Facility (NTLF) of
                                                                   the Lawrence Berkeley National Laboratory
                                                                   (LBNL). This is a one-time exclusion for 200
                                                                   US gallons of treatment residues that will be
                                                                   disposed of in a Nuclear Regulatory
                                                                   Commission (NRC) licensed or Department of
                                                                   Energy (DOE) approved low-level radioactive
                                                                   waste disposal facility, after [publication
                                                                   date of the final rule in the FEDERAL
                                                                   REGISTER]. (1) Waste Management: The treated
                                                                   waste residue and bubbler water on silica gel
                                                                   must be managed in accordance with DOE or NRC
                                                                   requirements prior to and during disposal.
                                                                   (2) Reopener Language: (A) If, anytime after
                                                                   disposal of the delisted waste, LBNL
                                                                   possesses or is otherwise made aware of any
                                                                   data (including but not limited to leachate
                                                                   data or groundwater monitoring data) relevant
                                                                   to the delisted waste indicating that any
                                                                   organic constituent from the waste is
                                                                   detected in the leachate or the groundwater,
                                                                   then LBNL must report such data, in writing,
                                                                   to the Regional Administrator within 10 days
                                                                   of first possessing or being made aware of
                                                                   that data. (B) Based on the information
                                                                   described in paragraph (2)(A) and any other
                                                                   information received from any source, the
                                                                   Regional Administrator will make a
                                                                   preliminary determination as to whether the
                                                                   reported information requires Agency action
                                                                   to protect human health or the environment.
                                                                   Further action may include suspending, or
                                                                   revoking the exclusion, or other appropriate
                                                                   response necessary to protect human health
                                                                   and the environment. (C) If the Regional
                                                                   Administrator determines that the reported
                                                                   information does require Agency action, the
                                                                   Regional Administrator will notify LBNL NTLF
                                                                   in writing of the actions the Regional
                                                                   Administrator believes are necessary to
                                                                   protect human health and the environment. The
                                                                   notice shall include a statement of the
                                                                   proposed action and a statement providing
                                                                   LBNL with an opportunity to present
                                                                   information as to why the proposed Agency
                                                                   action is not necessary or to suggest an
                                                                   alternative action. LBNL shall have 30 days
                                                                   from the date of the Regional Administrator's
                                                                   notice to present the information. (D) If
                                                                   after 30 days LBNL presents no further
                                                                   information, the Regional Administrator will
                                                                   issue a final written determination
                                                                   describing the Agency actions that are
                                                                   necessary to protect human health or the
                                                                   environment. Any required action described in
                                                                   the Regional Administrator's determination
                                                                   shall become effective immediately, unless
                                                                   the Regional Administrator provides
                                                                   otherwise. (3) Notification Requirements:
                                                                   LBNL must do the following before
                                                                   transporting the delisted waste off-site: (A)
                                                                   Provide a one-time written notification to
                                                                   any State Regulatory Agency to which or
                                                                   through which they will transport the
                                                                   delisted waste described above for disposal,
                                                                   60 days before beginning such activities. (B)
                                                                   Update the one-time written notification if
                                                                   LBNL ships the delisted waste to a different
                                                                   disposal facility. Failure to provide this
                                                                   notification will result in a violation of
                                                                   the delisting petition and a possible
                                                                   revocation of the exclusion.
 
       *                  *                   *                   *                  *                   *
                                                          *
----------------------------------------------------------------------------------------------------------------

* * * * *

[FR Doc. 02-19325 Filed 7-30-02; 8:45 am]
BILLING CODE 6560-50-P