[Federal Register Volume 68, Number 222 (Tuesday, November 18, 2003)]
[Proposed Rules]
[Pages 65120-65151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28651]



[[Page 65119]]

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Part II





Environmental Protection Agency





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40 CFR Chapter 1



Approaches to an Integrated Framework for Management and Disposal of 
Low-Activity Radioactive Waste: Request for Comment; Proposed Rule

  Federal Register / Vol. 68, No. 222 / Tuesday, November 18, 2003 / 
Proposed Rules  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter 1

[FRL-7585-6]
RIN 2060-AL71


Approaches to an Integrated Framework for Management and Disposal 
of Low-Activity Radioactive Waste: Request for Comment

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance notice of proposed rulemaking (ANPR).

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SUMMARY: This Advance Notice of Proposed Rulemaking (ANPR) requests 
public comment regarding options to promote a more consistent framework 
for the disposal of radioactive waste with low concentrations of 
radioactivity (``low-activity''). Of immediate interest is low-activity 
mixed waste (LAMW). This waste is both chemically hazardous according 
to the Resource Conservation and Recovery Act (RCRA) and is radioactive 
with low radionuclide concentrations under the purview of the Atomic 
Energy Act of 1954 (AEA). Such waste is regulated and managed under 
both authorities but under certain conditions, one authority may be 
sufficient to provide public health and environmental protection. In 
particular, given appropriate limits on radionuclide concentrations in 
LAMW, disposal of LAMW in RCRA Subtitle C hazardous waste landfills, 
with their prescribed engineering design and associated RCRA 
requirements (e.g., waste treatment, waste form), may provide 
protection of public health and the environment. This document focuses 
on effective use of the RCRA-C disposal technology for the disposal of 
LAMW. We (the Environmental Protection Agency) seek comment on 
standards that would codify this approach and provide greater 
flexibility for the safe disposal of LAMW.
    Beyond LAMW, however, there is a wide variety of radioactive wastes 
with relatively low concentrations of radioactivity; these wastes are 
not considered mixed wastes because they are not regulated under both 
RCRA and the AEA. Examples of such low-activity waste include certain 
AEA radioactive wastes, certain wastes from the extraction of uranium 
or thorium (such as those generated by the Formerly Utilized Sites 
Remedial Action Program (FUSRAP)), a variety of wastes that fall into 
the technologically enhanced naturally occurring radioactive materials 
(TENORM) category, and certain decommissioning wastes. Some AEA wastes 
are deferred from regulation, such as ``unimportant quantities'' of 
source material with less than 0.05 percent uranium or thorium, and 
would be characterized as another form of low-activity radioactive 
waste (LARW, of which low-activity mixed waste would be a subset). Some 
radioactive wastes are regulated strictly down to the last atom while 
other low-activity wastes are regulated primarily for their chemically 
hazardous constituents. Some of these wastes may be unregulated or 
regulated under a framework lacking clarity and consistency. We seek 
comment on possible regulatory and non-regulatory options to provide a 
more coherent framework to manage LARW, and information to improve the 
scientific characterization of such wastes.
    We envision that any standards promulgated to address the use of 
the RCRA-C disposal technology for LAMW (or, more broadly, LARW) would 
offer a new disposal option for these wastes. This would provide the 
flexibility to allow States, disposal facility operators, and waste 
generators to account for specific State or local regulatory 
constraints and economic considerations in determining whether they 
would choose to implement this disposal option for protective 
management and disposal of these wastes.

DATES: To ensure that your comments will be considered in future 
actions related to this document, please submit your comments no later 
than March 17, 2004.

ADDRESSES: Comments may be submitted by mail to: Air and Radiation 
Docket, Environmental Protection Agency, EPA West Room B108, Mailcode: 
6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention 
Docket ID No. OAR-2003-0095. Comments may also be submitted 
electronically, or through hand delivery/courier. Follow the detailed 
instructions as provided in Unit I.B of the SUPPLEMENTARY INFORMATION 
section. Please be aware that mail addressed to EPA headquarters may 
experience delays in delivery resulting from physical security 
screening. We will consider that fact when evaluating comments received 
after the end of the comment period.

FOR FURTHER INFORMATION CONTACT: Dan Schultheisz, Radiation Protection 
Division, Office of Radiation and Indoor Air, Mailcode: 6608J, United 
States Environmental Protection Agency, Washington, DC, 20460-0001; 
telephone (202) 343-9300; e-mail [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OAR-2003-0095. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing at 
the Air and Radiation Docket in the EPA Docket Center (EPA/DC), EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA 
Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744, and the telephone number 
for the Air and Radiation Docket is (202) 566-1742.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. It will also be available, 
along with general information relevant to this ANPR, such as 
Frequently Asked Questions (FAQ), through EPA's Radiation Program Home 
Page at http://www.epa.gov/radiation/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public

[[Page 65121]]

docket. To the extent feasible, publicly available docket materials 
will be made available in EPA's electronic public docket. When a 
document is selected from the index list in EPA Dockets, the system 
will identify whether the document is available for viewing in EPA's 
electronic public docket. Although not all docket materials may be 
available electronically, you may still access any of the publicly 
available docket materials through the docket facility identified in 
Unit I.A.1.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

B. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments, but will do so at its 
discretion.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID No. OAR-
2003-0095. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], Attention Docket ID No. OAR-2003-0095. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Unit I.B.2. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Send your comments to: Air and Radiation Docket, 
Environmental Protection Agency, EPA West Room B108, Mailcode: 6102T, 
1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID 
No. OAR-2003-0095.
    3. By Hand Delivery or Courier. Deliver your comments to: Air and 
Radiation Docket in the EPA Docket Center, EPA West Room B108, 1301 
Constitution Ave., NW., Washington, DC, 20004, Attention Docket ID No. 
OAR-2003-0095. Such deliveries are only accepted during the Docket's 
normal hours of operation as identified in Unit I.B.
    4. By Facsimile. Fax your comments to (202) 566-1741, Attention 
Docket ID. No. OAR-2003-0095.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be Confidential 
Business Information electronically through EPA's electronic public 
docket or by e-mail. Send or deliver information identified as CBI only 
to the following address: Dan Schultheisz, U.S. Environmental 
Protection Agency, Office of Radiation and Indoor Air, Mailcode: 6608J, 
1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID 
No. OAR-2003-0095. You may claim information that you submit to EPA as 
CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD ROM, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

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D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

Acronyms and Abbreviations

    We use many acronyms and abbreviations in this preamble. For your 
convenience and reference, they are:

    AEA--The Atomic Energy Act
    AEC--The Atomic Energy Commission
    ANPR--Advance notice of proposed rulemaking
    CED(E)--Committed effective dose (equivalent)
    CERCLA--Comprehensive Environmental Response, Compensation, and 
Liability Act (also known as Superfund)
    CFR--Code of Federal Regulations
    DOE--The United States Department of Energy
    EPA--The United States Environmental Protection Agency
    FR--Federal Register
    FUSRAP--Formerly Utilized Sites Remedial Action Program
    GTCC--Greater-Than-Class C low-level radioactive waste
    HWIR--Hazardous Waste Identification Rule
    LAMW--Low activity mixed waste
    LARW--Low activity radioactive waste
    LLRW--Low-level radioactive waste
    MCL--Maximum Contaminant Level
    MLLW--Mixed low-level radioactive waste
    MW--Mixed waste
    NESHAPS--National emission standards for hazardous air pollutants
    NRC--The United States Nuclear Regulatory Commission
    OMB--The Office of Management and Budget
    ORIA--EPA's Office of Radiation and Indoor Air
    OSW--EPA's Office of Solid Waste
    OSWER--EPA's Office of Solid Waste and Emergency Response
    RCRA--The Resource Conservation and Recovery Act
    RCRA--C--Subtitle C of RCRA
    TEDE--Total effective dose equivalent
    TENORM--Technologically Enhanced Naturally Occurring Radioactive 
Materials
    TRU--Transuranic waste
    TSCA--Toxic Substance Control Act
    UMTRCA--Uranium Mill Tailings Radiation Control Act
    USACE--United States Army Corps of Engineers
    UTS--Universal Treatment Standards

What Do We Mean by Certain Terms?

    Throughout this ANPR, we refer to ``Low-Level Radioactive Waste,'' 
``Mixed Waste,'' ``Low-Activity Low-Level Radioactive Waste,'' ``Low-
Activity Mixed Waste,'' and ``Low-Activity Radioactive Waste.'' Each of 
these terms has a distinct meaning within the context of this document 
(though not necessarily a regulatory or statutory definition). We want 
to avoid confusion wherever possible, so we offer these definitions to 
help you better understand the discussion.
    When we say ``Low-Level Radioactive Waste'' (or LLRW), we always 
mean a specific kind of radioactive material defined at section 2(16) 
of the Nuclear Waste Policy Act as radioactive waste that is not spent 
nuclear fuel, high-level waste, transuranic waste, or uranium and 
thorium mill tailings. Under 10 CFR part 61, ``Licensing Requirements 
for Land Disposal of Radioactive Waste,'' the NRC regulates disposal of 
LLRW in near-surface disposal facilities. The NRC has defined three 
classes of LLRW in part 61 (classes A, B, and C) based on their 
radionuclide content and half-life. Under the part 61 waste 
classification and disposal site design, siting, and waste acceptance 
scheme, waste with radionuclide content that exceeds Class C still is 
regulated as LLRW, but generally is not acceptable for near-surface 
disposal. The Department of Energy (DOE) regulates LLRW under its own 
AEA authority (see DOE Order 435.1).
    When we say ``Mixed Waste'' (or MW), we always mean waste that is 
regulated under both the Resource Conservation and Recovery Act (RCRA) 
as hazardous waste and under the AEA as radioactive material. This 
document is concerned only with MW containing LLRW, so-called mixed 
low-level waste (MLLW). MLLW can include LLRW Classes A, B, and C, and 
greater-than-class C. Non-AEA radioactive wastes mixed with hazardous 
waste are not technically MW, although they may be managed in a similar 
way.
    We are introducing today the term ``low-activity'' to represent the 
idea that some radioactive wastes may contain radionuclides in small 
enough concentrations to allow them to be managed in ways that are 
fully protective of public health and the environment but do not 
require all of the radiation protection measures necessary to manage 
higher-activity radioactive material. As used in this document, ``low-
activity'' is a conceptual term that does not have a statutory or 
regulatory meaning. This document outlines and requests public comment 
on methods that could be used in future actions to define ``low-
activity'' wastes. ``Low-activity'' wastes would be subsets of broader 
waste categories, such as those defined previously. This document 
discusses several types of ``low-activity'' waste, including:
    [sbull] ``Low-activity'' LLRW;
    [sbull] ``Low-activity'' MW (LAMW);
    [sbull] ``Low-activity'' radioactive waste (LARW)--this is a broad 
category that includes low-activity LLRW and LAMW, as well as other 
wastes such as those primarily regulated at the State level (e.g., 
TENORM wastes, where the term ``technologically enhanced'' means that 
human activity has concentrated the natural radioactivity or increased 
the potential for human exposure).
    Finally, when we say ``byproduct material'' we are using the 
definition in section 11e of the AEA. The discussion in section III of 
this document focuses on ``pre-UMTRCA byproduct materials'' not 
regulated by the NRC. (``Pre-UMTRCA byproduct materials'' are tailings 
or wastes produced by the extraction or concentration of uranium or 
thorium from any ore processed primarily for its source material 
content that NRC has concluded are outside its jurisdiction under 
section 11e.(2) of the AEA. This is discussed further in section III.B 
of this document. The FUSRAP cleanups address much of the pre-UMTRCA 
byproduct material.)

Questions for Public Comment

    Consistent with the purpose of an Advance Notice of Proposed 
Rulemaking, we are asking many questions about the concepts described 
in this document. Because this document covers a broad variety of 
topics and possibilities, we note throughout the text the issues on 
which we would like public comment. We

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have also collected questions at the end of sections II, III, and IV, 
and additional questions may be found in the ``Request for 
Information'' sections (see the ``Outline of Today's Action''). The 
questions at the end of each section are focused on the material 
presented in those sections; however, commenters may feel that 
information in a later section is relevant to a question in an earlier 
section, or vice versa. We encourage commenters to address the 
questions as they believe most appropriate. Further, we welcome 
comments on any aspect of the text, not just on those points for which 
we specifically request comment. However, to facilitate our evaluation 
of and response to public comment, we ask that commenters clearly 
identify which issue(s) they are addressing and refer to relevant 
portions of the text in their comment.

Outline of Today's Action

I. Why Are We Publishing Today's ANPR?
II. How Can the Disposal of LAMW be Simplified?
    A. What Needs to be Done to Allow Protective Disposal of LAMW?
    1. Assess Characteristics of LAMW
    2. Assess Alternative Disposal Methods
    a. RCRA Subtitle C Land Disposal
    b. Establish a Risk or Dose Basis for Allowable Concentrations
    3. Coordination with Nuclear Regulatory Commission
    B. Why is There a Need to Simplify Disposal of LAMW?
    1. Dual Regulatory Structure
    2. Recent EPA Mixed Waste Actions
    C. How Would the RCRA Regulatory Framework Support a Viable 
Disposal Concept?
    1. Technological Basis for Disposal (RCRA Hazardous Waste 
Landfill Criteria)
    2. RCRA Treatment Standards
    3. RCRA Disposal Facility Operating Standards
    4. How does AEA Licensing Compare to RCRA Permitting?
    D. What Methods Could be Used to Assess the Risk of Disposing of 
LAMW?
    1. Modeling as a Basis for Establishing Risk or Dose Basis
    2. Comparison of Risks from Radioactive and Hazardous Waste 
Disposal
    3. Modeling Scenarios
    a. Situations to be Addressed
    b. Long-term Disposal Cell Performance
    i. General Discussion
    ii. ``Wet'' and ``Dry'' Sites
    iii. Modeling Timeframe
    c. ``Off-Normal'' Events
    d. Disposal Facility Worker
    e. Transportation Worker
    f. Post-Closure Site Use
    4. Other Considerations Affecting Risk Analysis
    a. Use of Part 61 Classification System
    b. Waste Form and Packaging
    c. Activity Caps
    d. Unity Rule
    5. Risk or Dose Basis for a LAMW Standard
    E. What Legal Authority Does EPA Have Under the AEA?
    F. What Regulatory Approaches Could NRC Take With Respect to 
LAMW?
    1. Regulatory Approaches That Could Apply to RCRA Facilities
    2. Regulation of LAMW Generators
    G. How Might DOE Implement a LAMW Standard?
    1. DOE's ``Authorized Limits'' System
    2. DOE's Radiological Control Criteria
    H. How Would States Implement the Standard?
    1. Would States be Required to Implement the Standard?
    2. State Programs
    a. Facility Permitting/Public Participation
    b. Implementation at the Disposal Facility
    c. Agreement States d. Non-Agreement States
    3. Regional Low-Level Radioactive Waste Compacts
    I. Request for Information: LAMW
    J. Background Information Regarding LAMW
    1. Commercial LAMW
    2. DOE LAMW
    K. Questions for Public Comment: Disposal Concept for LAMW
III. Is it Feasible to Dispose Other Low-Activity Radioactive Wastes 
(LARW) in Hazardous Waste Landfills?
    A. How Would the Proposed Disposal Concept Apply to Other Low-
Activity Radioactive Wastes?
    1. From a Technological Perspective
    2. Pre-UMTRCA Byproduct Material
    3. TENORM
    4. Low-Activity LLRW/Source Material Exempted by NRC
    B. What Legal and Regulatory Issues Might Affect Applying the 
RCRA-C Disposal Concept to Other Low-Activity Radioactive Wastes?
    1. Lack of Federal Regulation
    2. How They are Regulated Now
    a. Pre-UMTRCA Byproduct Material (FUSRAP)
    b. TENORM
    3. Existing Federal Regulation (Low-Activity LLRW)
    4. Potential for a New ``Class'' of Disposal Facilities
    C. Request for Information: Other LARW
    D. Background Information Regarding Other LARW
    1. Pre-UMTRCA Byproduct Material (and FUSRAP)
    2. TENORM
    3. Low-Activity LLRW/Source Material Exempted by NRC
    4. Decommissioning Wastes
    E. Questions for Public Comment: Disposal of Other LARW in 
Hazardous Waste Landfills
IV. What Non-Regulatory Approaches Might be Effective in Managing 
LAMW and Other Low-Activity Radioactive Wastes?
    A. General Discussion
    1. Advantages and Disadvantages of Non-Regulatory Approaches
    2. Examples of Existing EPA Non-Regulatory Programs
    3. National Academy of Sciences Studies
    B. Non-Regulatory Approaches for LAMW and Other Low-Activity 
Radioactive Wastes
    1. Develop Guidance
    2. Partner with Selected Stakeholders to Develop Waste-Specific 
``Best Practices'
    C. Request for Information: Non-Regulatory Alternatives to Our 
Disposal Concept
    D. Questions for Public Comment: Non-Regulatory Alternatives to 
Our Disposal Concept
V. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review

I. Why Are We Publishing Today's ANPR?

    Today's ANPR introduces a variety of approaches that might be 
applicable to certain low-activity radioactive waste categories 
(LARW).\1\ We (the Environmental Protection Agency) seek public comment 
on the appropriateness of these approaches towards a coherent framework 
assuring appropriate management and disposal of such a diverse set of 
LARW. As discussed below, our intent is to develop a regulatory 
framework applicable to all LARW, which could include disposal of LARW 
at RCRA facilities, whether radioactive material addressed by the 
Atomic Energy Act under the jurisdiction of NRC or not. Our more 
immediate focus regards a simpler but protective approach to the 
present dual regulatory system applicable to low-activity mixed waste 
(LAMW). We seek comment on approaches that would reduce the burden of 
the dual regulatory framework for LAMW. One possibility would be to 
establish a regulatory framework to allow, under certain conditions, 
the disposal of LAMW at hazardous waste landfills under the purview of 
Subtitle C of RCRA. Under this approach, we and NRC could reach 
agreement on the appropriate conditions under which such disposal could 
take place. Ideally, the conditions that would apply to disposal of 
low-activity waste would be much simplified over those requirements 
that now apply to low-level waste disposal facilities which allow the 
disposal of higher concentrations of radioactive material. Upon such 
agreement, NRC would need to take regulatory action to allow AEA 
material under its jurisdiction to be sent to Subtitle C landfills. 
This would, in

[[Page 65124]]

effect, expand the disposal options available for LAMW.
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    \1\ It is important to understand that the term ``low-activity'' 
does not have a precise statutory or regulatory definition. We use 
the term throughout today's action to refer to wastes in which the 
radioactivity is low enough to potentially allow management 
alternatives that do not incorporate the entire range of radiation 
control practices, such as disposal at RCRA Subtitle C landfills. 
The situations and conditions that would define ``low-activity'' 
waste are the subject of today's action and potentially future 
rulemakings.
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    We recently took a similar approach to minimize dual regulation for 
mixed waste. Recognizing the compliance difficulties associated with 
the dual regulatory framework applicable to mixed waste, we promulgated 
subpart N to 40 CFR part 266 (``Conditional Exemption for Low-Level 
Mixed Waste Storage, Treatment, Transportation and Disposal''). (See 66 
FR 27218, May 16, 2001.) This conditional exemption provides for a 
reduced regulatory burden for facilities that store, treat, transport, 
or dispose of mixed low-level waste (MLLW). Under certain conditions, 
certain mixed wastes are exempt from RCRA regulation, leaving only the 
requirements of the AEA to govern their storage, treatment, 
transportation.
    In addition to LAMW, there are a variety of wastes with relatively 
low concentrations of radioactivity such as certain TENORM waste, 
certain AEA materials and certain decommissioning wastes for which the 
present institutional framework is less than clear. Some wastes are 
tightly regulated from origin through final disposal while others are 
presently unregulated. These wastes present a variety of radiological 
risks and, ideally, wastes with similar risks should be managed 
proportionately to the risk they represent. In this regard, there are a 
variety of tools that may achieve acceptable risk levels, with 
regulatory controls being one such tool. However, we recognize that 
other tools, such as voluntary guidance, ``best practices,'' industry 
standards, and the like have the potential to result in acceptable risk 
levels. In section III of this document, we seek comment on the use of 
these non-regulatory approaches for assuring and achieving acceptable 
risk levels from the disposal of these various wastes and what role EPA 
should play in creating a consistent and protective framework for 
limiting risk. Just as importantly, our ANPR seeks information 
regarding the characterization of wastes that fall in these categories, 
or information on other wastes that might be considered in conjunction 
with those named in this ANPR. Such information can only help to better 
characterize the risk inherent in these waste categories and lead to a 
more consistent, protective institutional framework.
    We believe that the approach presented in today's action could 
provide the necessary flexibility for the safe disposal of LAMW and 
other LARW and might facilitate site cleanups. Informal discussions 
with various stakeholders (commercial mixed waste generators, DOE, 
disposal facility operators, State regulators, public interest groups) 
suggest a broad level of interest in the potential advantages of this 
approach. Today's document offers an opportunity for stakeholders to 
provide detailed comment on a variety of concepts and possibilities 
that could be used in a future rulemaking. If affected entities 
demonstrate support for such a rulemaking and provide information 
needed to develop technical and economic analyses, we would have a 
strong basis to pursue this effort beyond the ANPR stage. Similarly, 
NRC could use the approach described in this document to develop 
regulations addressing the disposal of LAMW or other low activity 
radioactive wastes from its (or Agreement State) licensees. In an 
effort that may affect the disposal of LARW, NRC held a workshop on May 
21-22, 2003, to discuss alternatives for safely controlling solid 
materials that have no, or very small amounts of, radioactivity. One 
alternative for that material is placement in a RCRA Subtitle C 
(hazardous waste) or Subtitle D (solid waste) disposal facility. 
Therefore, some of the issues discussed in that workshop may be similar 
to some of the approaches discussed in this ANPR. Background materials 
(including the information collection efforts conducted by NRC) and 
current activities (including recent documents issued and plans for 
stakeholder input), as well as transcripts of the workshop, can be 
found at http://ruleforum.llnl.gov/cgi-bin/rulemake?source=SM_RFC&st=ipcr.

II. How Can the Disposal of LAMW Be Simplified?

    As noted above, we have recently promulgated regulations that 
describe conditions under which RCRA defers to the NRC and Agreement 
State requirements under the AEA for the storage, treatment, 
transportation, and disposal of mixed low-level waste. We based this 
deferral on our determination that the AEA requirements as addressed by 
NRC's regulations for management of radioactive waste offered an 
adequate degree of human health and environmental protection when 
compared to that offered by RCRA for the hazardous components of MLLW. 
Our RCRA authority is much more comprehensive and wide-ranging than our 
AEA authority. Under RCRA, we define hazardous waste and regulate 
hazardous waste generation, transportation, treatment, and disposal, 
including the operation of facilities handling hazardous waste. 
However, RCRA specifically excludes certain AEA material from its 
jurisdiction (40 CFR 261.4(a)(4)). Under the AEA, for the protection of 
the general environment, we can establish generally applicable 
radiation protection standards that apply outside the boundaries of 
locations under the control of persons possessing or using radioactive 
material. NRC and DOE are responsible for establishing requirements for 
disposal of AEA material by such persons. For example, we have used 
this AEA authority to establish effluent release limits from facilities 
comprising the uranium fuel cycle in 40 CFR part 190. In the case of 
low-activity mixed waste a dual regulatory framework already exists to 
address the storage, treatment, transportation, and disposal of such 
waste. With the promulgation of subpart N to 40 CFR part 266, some of 
these requirements are eased but widespread implementation of this rule 
awaits adoption by the States before it can be implemented. (See 66 FR 
27257, May 16, 2001.)
    In an effort to further reduce the burden of this dual regulatory 
framework for mixed waste, one option would be to promulgate a standard 
(such as regulatory limits for radionuclides in the waste) in 
coordination with the NRC allowing the disposal of LAMW in Subtitle C 
(hazardous waste) RCRA landfills. We believe an appropriate rulemaking 
by EPA and NRC of this nature will achieve the same level of 
protectiveness while at the same time significantly reducing the effort 
(and cost) otherwise required to comply with two separate regulatory 
regimes. We focus on disposal because we are aware of a few thousand 
small generators who store their mixed waste indefinitely because of 
the lack of disposal options, or the high costs of disposal. We are 
concerned that this situation may lead to mishandling, illegal dumping, 
or the elimination of research on, and use of, medical diagnostic 
techniques resulting in less than optimum health care. A protective 
regulatory framework that is less expensive and less burdensome would 
encourage prompt disposal of such waste, avoiding the risks of 
mishandling and illegal disposal, while improving options for health 
care. Some Subtitle C treatment standards for land disposal result in 
stabilized, solidified, or vitrified treatment residues that will 
immobilize radiological components, as well as hazardous constituents. 
Also, RCRA requires landfills to have certain engineered barriers to 
minimize infiltration and prevent releases. These factors make disposal 
of LAMW in RCRA hazardous waste landfills an

[[Page 65125]]

attractive approach for a rulemaking. The key in this approach would be 
to determine what concentrations of radioactivity in LAMW are 
appropriate for disposal in a RCRA Subtitle C landfill. As the preamble 
to subpart N to 40 CFR part 266 noted, an evaluation of the 
requirements embodied in the respective regulatory frameworks for RCRA 
and AEA revealed that both offer significant protections to human 
health and the environment. (See 66 FR 27223, May 16, 2001.) In the 
following sections, we discuss more fully the option of pursuing a 
rulemaking allowing disposal of LAMW in a RCRA Subtitle C landfill.

A. What Needs To Be Done To Allow Protective Disposal of LAMW?

    Because mixed waste contains both a hazardous chemical component 
and a radioactive component, the safe disposal of low-activity mixed 
waste must combine elements pertinent to both types of hazards. The 
RCRA regulatory standards and permitting process provide for control of 
the chemically hazardous waste components. If EPA pursues rulemaking 
for the disposal of LAMW, we would focus on the controls necessary to 
ensure protective disposal of the radioactive component of the waste. 
We do not propose to change, either directly or indirectly, any of the 
RCRA provisions regulating the disposal of the chemically hazardous 
components of the waste. For the radioactive component of the waste, 
limits on the concentration of radiological waste that can be disposed 
of in a RCRA Subtitle C landfill may be the most straightforward method 
to use. These limits would be protective of the public health and would 
take into account the waste forms derived from the RCRA treatment 
standards and the design and performance of engineered barriers 
associated with such landfills.
1. Assess Characteristics of LAMW
    The characteristics of low-activity mixed waste are important 
factors in determining whether a given disposal concept will be 
appropriate. By ``characteristics'' we mean the properties that will 
influence our technical analysis of LAMW disposal, because they affect 
the way the waste will behave in a Subtitle C disposal cell and 
potential radiation exposure to people. Properties of interest will 
include physical form and chemical composition of the wastes, and 
radionuclide content (specific radionuclides and their concentrations).
    There is limited information available on mixed waste, particularly 
when compared to waste that is only low-level radioactive or RCRA 
hazardous. The most comprehensive survey of commercial mixed waste was 
conducted by NRC and EPA in 1992 (``National Profile on Commercially 
Generated Low-Level Radioactive Mixed Waste,'' NUREG/CR-5938). A 
summary of this survey is available at http://www.epa.gov/radiation/mixed-waste/nat-prof.htm. NRC indicated that, based on 1990 practices, 
commercial facilities generated about 3,950 cubic meters of mixed waste 
annually and held another 2,120 cubic meters in storage. The profile 
divides mixed waste properties and generation into five categories: 
medical facilities, academic institutions, government institutions, 
industrial facilities, and nuclear power plants. For various reasons, 
such as improved waste management practices and information collected 
by a few States, we believe the volumes of mixed waste being generated 
today may be significantly lower than those described in NRC's profile. 
For example, when developing our mixed waste rule of May 2001, our 
discussions with mixed waste generators suggested that the industry has 
recognized the limited progress in developing mixed waste treatment and 
disposal capacity and taken steps to reduce mixed waste generation in 
order to reduce the associated financial and regulatory burden.
    Mixed waste (and therefore LAMW) is also generated by DOE. In fact, 
DOE has a legacy of environmental and process wastes requiring disposal 
and significant volumes are expected in the future as DOE sites undergo 
continued cleanup. As discussed in more detail later (see section 
II.J), DOE has indicated that tens of thousands of cubic meters of low-
level radioactive waste that is mixed waste (MLLW) may be considered 
for disposal in commercial disposal facilities. Some fraction of this 
waste may have concentrations low enough to qualify as LAMW. The 
approach presented in this ANPR may also facilitate the cleanup of 
contaminated DOE sites in a protective, expedited, and cost-effective 
manner. We request comment on the application of a rulemaking based on 
this approach to DOE LAMW.
    We encourage mixed waste generators to give us their perspective on 
the current status of mixed waste generation, storage, and disposal. In 
particular, we would like to know whether generators believe the 1992 
EPA/NRC profile accurately describes the state of mixed waste 
generation today and how their mixed waste experience compares to that 
profile. Further, since an approach using radionuclide concentration 
limits to define LAMW for disposal at Subtitle C facilities may be the 
most workable, we would like generators to tell us which radionuclides 
are of most concern to them and the concentrations that would address a 
significant portion of their waste (e.g., what concentration of a 
particular radionuclide is found in 25%, 50%, 75% of a generator's 
waste).
2. Assess Alternative Disposal Methods
    Because we are focusing on simplifying disposal of LAMW, we must 
assess the suitability of land disposal methods that have features that 
could contribute to containment and isolation of low concentrations of 
radionuclides or treated hazardous constituents. Disposal facilities 
meeting this description would include:
    [sbull] Low-level radioactive waste facilities licensed under 10 
CFR part 61;
    [sbull] Hazardous waste disposal facilities permitted under RCRA 
Subtitle C;
    [sbull] Uranium mill tailings facilities operating under 10 CFR 
part 40; and
    [sbull] Solid waste disposal facilities permitted under RCRA 
Subtitle D.
    Today's ANPR focuses on hazardous waste facilities permitted under 
RCRA Subtitle C. We do not see a need to address low-level waste 
facilities, which are licensed with conditions on acceptable 
radionuclides and concentrations (which may vary for each licensed 
facility). Further, the rule we issued in 2001 at 40 CFR part 266, 
subpart N established conditions under which mixed waste could be sent 
to an NRC or Agreement State licensed low-level waste facility without 
requiring a RCRA permit. Similarly, while NRC has explored the 
possibility of allowing mill tailings facilities to accept RCRA 
hazardous and low-level radioactive waste, those facilities are not 
generally able to accept either without site-specific licensing. 
Finally, at this time, we do not expect to extend our disposal concept 
to RCRA Subtitle D (non-hazardous solid waste) landfills. However, the 
most recent EPA standards for such facilities (40 CFR part 258) require 
them to have engineered features that are similar in many ways to 
Subtitle C facilities. Further, our recent Hazardous Waste 
Identification Rule (HWIR) effort was intended to identify levels at 
which hazardous constituents pose a sufficiently low risk that they may 
be sent to Subtitle D facilities. (See 66 FR 27266, May 16, 2001.) We 
also note that NRC, in collaboration with the State of Michigan, has 
recently concluded that certain very low-activity wastes from the 
decommissioning of the Big Rock Point nuclear facility may be sent to a

[[Page 65126]]

Subtitle D landfill. (See 66 FR 63567-63568, December 7, 2001.) Other 
States have also determined that Subtitle D facilities may offer 
sufficient protection for certain types of radioactive material.\2\ 
Therefore, we request comment on the suitability of Subtitle D 
facilities for low concentrations of radionuclides, under what 
conditions such disposal would be appropriate, and how comparable 
Subtitle D and Subtitle C facilities should be considered. We also 
request comment on the suitability of other types of disposal 
facilities not mentioned above.
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    \2\ The State of Texas allows certain radioactive material with 
half-life less than 300 days to be disposed in solid waste 
landfills. (See Texas Administrative Code, Title 25, Chapter 289, 
Section 202(fff).) In 2001, the Radiation Focus Group of the 
Association of State and Territorial Solid Waste Management 
Officials (ASTSWMO) stated ``Currently, prohibitions against all 
radioactive materials are too broad'' and that ``the list of 
radioactive materials that should be excluded from landfills * * * 
should include only wastes that are long-lived, and/or soluble, or 
otherwise pose a significant hazard.'' (``Detection and Response to 
Radioactive Materials at Municipal Solid Waste Landfills,'' Final 
Report, July 18, 2001.)
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    a. RCRA Subtitle C Land Disposal. The design requirements for RCRA 
Subtitle C hazardous waste landfills include engineered barriers (e.g., 
liners, see 40 CFR part 264, subpart N) while the hazardous waste 
itself must be treated to meet the land disposal restriction (LDRs) 
requirements. (See 40 CFR part 268.) Determining when disposal of LAMW 
at Subtitle C landfills is appropriate could involve deriving limiting 
radionuclide concentrations in the waste through modeling the 
performance of these disposal cells. We would consider the 
effectiveness of the RCRA-permitted landfill disposal cells under a 
variety of performance and release scenarios. These performance 
scenarios would take these design and waste treatment requirements into 
account and would anticipate the range of site-specific conditions at 
disposal sites that may occur in practice. The scenarios could assess 
performance of the RCRA Subtitle C design with respect to ground-water 
contamination under various climatic and hydrogeological conditions.
    Scenarios could also evaluate worker exposure situations, including 
both the worker at the disposal site and the transportation worker. 
RCRA facilities are highly regulated and implement measures to protect 
workers against associated hazards. The personal protective equipment 
provided to RCRA workers might be expected to offer some protection 
against radiological constituents. Presuming low concentrations of 
radionuclides (which we would expect would keep exposures well below 
those allowable for workers at AEA-licensed disposal facilities), these 
workers might not need to be considered as occupational workers for the 
purposes of a radiation protection program under NRC regulations. 
Indeed, if the benchmark for exposure is low enough, from a 
radiological perspective, these workers would be more like members of 
the general public in the exposures they would be likely to receive 
(requirements related to RCRA hazardous waste would still apply). Other 
scenarios could also be considered as appropriate to assure the 
protection of the public health and the environment. Consequently, this 
approach would establish concentration limits appropriate for RCRA 
Subtitle C landfills accepting LAMW without requiring site-specific 
performance assessments. As a point of reference, consistent with the 
concept of LAMW (and ``low-activity'' waste in general), radionuclide 
concentration limits would not exceed the values NRC has established 
for Class A radioactive waste, as described in 10 CFR 61.55. (See 47 FR 
57473, December 27, 1982.) See section II.D for a more detailed 
discussion of our concept for modeling.
    b. Establish a Risk or Dose Basis for Allowable Concentrations. The 
basic modeling scenarios provide a method for identifying appropriate 
risk-or dose-based concentration limits on radionuclides in LAMW.\3\ 
However, we still must consider the appropriate level of risk or dose 
on which the concentrations would be based. We are considering a number 
of factors in selecting an appropriate level, including other risk 
management decisions for radiation protection. In this regard, we are 
also working with NRC to understand how risk considerations will be 
incorporated into NRC's selection of a regulatory approach. We give 
more detail on these factors in section II.D.4.
---------------------------------------------------------------------------

    \3\ A ``risk-based'' limit would consider the probability that a 
person being exposed to radiation would develop a health effect. A 
``dose-based'' limit would consider the amount of radiation exposure 
that person could receive. The correlation between risk and dose is 
not the same for every radionuclide.
---------------------------------------------------------------------------

3. Coordination With the Nuclear Regulatory Commission
    Because a significant purpose of our proposed approach is to 
address low-activity mixed waste generated by NRC licensees, we and NRC 
will work closely together in modifying the existing regulatory 
structure to encourage more flexibility in LAMW disposal. The lack of 
facilities to treat and dispose of mixed waste has been the subject of 
Congressional hearings and EPA and NRC were encouraged to devote 
resources to develop a strategy to address these issues.\4\ Concern was 
also expressed to the Council on Environmental Quality about this 
problem, which ``has persisted for over 11 years [with] no resolution 
in sight.'' \5\ The Council was asked what action was being taken to 
create alternatives for dealing with these waste streams.\6\ We and NRC 
have worked together in the past to develop guidance and regulatory 
solutions for certain broad mixed waste issues.\7\
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    \4\ Hearing Before the Subcommittee on Energy and Power of the 
Committee on Commerce, House of Representatives, 104th Cong., 2d 
Sess., Sept. 5, 1996, Serial Number 104-114.
    \5\ Hearing Before the Subcommittee on Oversight and 
Investigations, of the Committee on Energy and Natural Resources, 
United States Senate, 104th Cong., 2d Sess., Sept. 26, 1996, Serial 
Number 104-775, at 71.
    \6\ Id.
    \7\ EPA and NRC have issued joint guidance on mixed waste 
testing (``Joint EPA/NRC Guidance on Testing Requirements for Mixed 
Radioactive and Hazardous Waste,'' 62 FR 62079, November 20, 1997) 
and disposal (``NRC/EPA Siting Guidelines for Disposal of LLMW,'' 
OSWER Directive 9480.00-14, June 1987; ``Joint NRC/EPA Guidance on a 
Conceptual Design Approach for Commercial LLMW Disposal 
Facilities,'' OSWER Directive 9487.00-8, August 3, 1987). These 
documents are available at http://www.epa.gov/radiation/mixed-waste.
---------------------------------------------------------------------------

    In that vein, EPA and NRC view the disposal of LAMW in a Subtitle C 
RCRA landfill as a viable approach deserving further examination 
through a public notice and comment process. EPA and NRC believe this 
approach has the potential to offer needed flexibility in the 
regulation of mixed waste and be fully protective of the public health 
and the environment. This approach would also be consistent with 
actions taken by both agencies to address specific situations. Note 
that the NRC, in consultation with us, has issued guidance such that, 
under certain conditions, radioactively contaminated electric arc 
furnace dust containing cesium-137 below specified levels--the result 
of accidental melting of sealed sources by steel mills--appropriately 
may be disposed of in commercially operated RCRA hazardous waste 
facilities (62 FR 13176, March 19, 1997).
    We anticipate that implementing the disposal option discussed in 
today's action for all low-activity radioactive waste, including those 
waste streams discussed in section III, will require regulatory action 
by both agencies (although our respective responsibilities clearly vary 
for the different waste streams). We invite commenters to provide their 
perspective on the appropriate roles of the two agencies in developing 
regulatory standards and implementing them for waste generators

[[Page 65127]]

and disposal facilities, including the appropriate level of Federal 
and/or State oversight. What regulatory arrangement, including division 
of responsibilities between EPA and NRC, would be most likely to 
facilitate the safe management and disposal of these wastes? We would 
also welcome suggestions as to the most effective ways to minimize the 
effects of dual regulation.
    In our discussions, NRC has identified several regulatory options 
that it might apply to LAMW. We discuss these potential NRC regulatory 
approaches to LAMW in section II.F, and have included some questions to 
elicit public comment on those approaches. However, NRC will discuss 
issues specific to NRC's regulatory system in greater detail as it 
proceeds through its own rulemaking process. Our action today focuses 
more on technical and policy questions surrounding the use of RCRA-C 
technology and regulatory framework for disposal of LAMW, the 
applicability of the RCRA-C technology to other low-activity 
radioactive wastes, and non-regulatory approaches that might prove 
effective in managing and disposing of low-activity wastes. We 
encourage commenters to respond to all questions in today's action.

B. Why Is There a Need To Simplify Disposal of LAMW?

1. Dual Regulatory Structure
    Mixed waste is regulated under both RCRA and the AEA. The need to 
comply with two separate regulatory systems, each of which is targeted 
to a different component of the waste, creates a certain regulatory and 
economic burden on mixed waste generators. While many of the 
requirements of the two systems have similar purposes (e.g., 
inspections), they can have the effect of creating two distinct 
regulatory compliance infrastructures. Generators (as well as treatment 
and disposal facilities) must achieve compliance with both systems. In 
some cases, these requirements may appear to be duplicative.
    Approximately 3000 small volume generators store mixed wastes, in 
part because disposal options are extremely limited. Some estimates are 
that the number of individual sites storing mixed waste could be 
significantly higher, though there is greater uncertainty in these 
estimates. The lack of disposal options for these generators causes 
increased management costs. It also can result in mishandling and 
perhaps illegal dumping of the waste. Some mixed waste has been in 
storage for over a decade. These concerns are not limited to small 
generators. The EPA rule discussed in section II.B.2 was largely driven 
by power companies' concern over dual regulation of mixed waste. We 
believe, in general, that treatment and permanent disposal of waste, 
when available, is preferable to storage.
    Also, we are concerned that the high costs and difficulty of 
disposing of mixed waste will cause doctors, hospitals, and diagnostic 
laboratories to suspend certain procedures, which could result in the 
provision of less than optimum health care.\8\ There are reports that 
the inability to store and dispose of radioactive waste has caused 
researchers to avoid scientific procedures that are known to be 
effective and to develop less effective alternatives.\9\ We also are 
concerned that such problems indirectly may be hampering medical 
research.
---------------------------------------------------------------------------

    \8\ Kaye, Gordon J, ``The Crisis in LLRW Disposal Short- and 
Long Term Effects on the Biomedical Community,'' Newsletter for 
Appalachian Compact Users of Radioactive Isotopes, June 1991.
    \9\ Isaac, Peter G, et al., ``Nonradioactive Probes,'' Molecular 
Biology, p 259-160, vol. 3, June 1995.
---------------------------------------------------------------------------

    We believe it is possible to alleviate the problem if more of the 
facilities that can accommodate hazardous waste safely were allowed, 
under certain conditions, to dispose of LAMW. Of the commercial 
facilities currently permitted to dispose of hazardous waste under 
RCRA, only one is also licensed to dispose of AEA radioactive waste 
(and mixed waste). (This facility and one other that we are aware of 
that has applied for a license to dispose of AEA radioactive waste are 
special cases, as their original plans involved accepting radioactive 
waste.) This situation may be due, in part, to the additional burden 
faced by the RCRA disposal facility operators in applying for a site-
specific license under 10 CFR part 61 or its equivalent to establish a 
full-fledged low-level radioactive waste (LLRW) disposal facility. Both 
10 CFR part 61 and RCRA Subtitle C describe fairly lengthy, data 
intensive, and costly processes for regulatory approval. The somewhat 
different focus of the two systems (RCRA as ``technology based'', part 
61 as ``performance based'') may also serve to limit the number of 
facilities willing to demonstrate compliance under both regulatory 
systems. (See section II.C for more detail on the licensing-permitting 
issue.) A few commercial Subtitle C landfills have accepted non-AEA 
radioactive waste with the approval of State authorities, which 
supports our belief that, with the proper controls, the RCRA-C 
technology can provide protective disposal of certain types of 
radioactive material. Issues associated with non-AEA radioactive wastes 
are discussed in section III.
    We asserted RCRA authority over the hazardous portion of mixed 
waste in the mid-1980s; however, section 1006 of RCRA states that the 
AEA takes precedence over RCRA in cases where the regulatory 
requirements are inconsistent. Because the approach we are considering 
would rely on RCRA Subtitle C landfill technology, and because low-
activity mixed waste would have relatively low concentrations of 
radionuclides, our approach would permit the disposal of LAMW if it met 
RCRA-C regulations and practices. This implies that the risks to 
workers, the public, and the environment (including ground water) 
presented by the radioactive portion of LAMW would be effectively 
minimized considering the controls already in place at the RCRA-C 
landfills. Waste generators would also bear responsibility for ensuring 
that their waste met conditions for disposal as low-activity mixed 
waste.
    This approach would take into account the practicalities of 
implementing LAMW disposal at RCRA-permitted hazardous waste landfills, 
rather than transforming them into more AEA-like facilities. We believe 
that this will introduce sufficient flexibility as to allow LAMW 
generators to take advantage of additional disposal options. Similarly, 
the number of commercial facilities currently permitted under RCRA to 
accept hazardous waste (roughly 20) is significantly higher than the 
number licensed to accept low-level waste (3) or mixed waste (1), 
offering the prospect of greater competition and disposal capacity. 
Though this comparison is instructive, we do not want to limit our 
focus to commercial disposal facilities. A significant number of 
companies have been issued permits for their own ``captive'' or 
privately-owned hazardous waste disposal facilities, which typically 
accept waste only from generators owned by or affiliated with the 
landfill operator. It is conceivable that mixed waste generators might 
be among those with access to such facilities. These facilities must 
meet the same RCRA permitting requirements as commercial facilities and 
therefore, this approach should be equally appropriate for the receipt 
of LAMW. We request comment on whether we should consider only a subset 
(i.e., only the commercial or private sector) of the RCRA-C universe in 
our analyses. On a related topic, should RCRA landfills operated by DOE 
on its own sites be considered within the scope of this approach?

[[Page 65128]]

2. Recent EPA Mixed Waste Actions
    As described above, on May 16, 2001, we promulgated regulations 
related to the storage, treatment, transportation, and disposal of 
mixed low-level radioactive waste (subpart N of 40 CFR part 266). These 
regulations describe conditions under which MLLW can be exempted from 
certain RCRA hazardous waste requirements. In particular, a generator 
of MLLW may store and treat the waste at the generator's facility 
without obtaining a RCRA permit (required for hazardous waste 
treatment, disposal, and on-site storage beyond 90 days), as long as 
the storage and treatment take place in tanks or containers and conform 
to the generator's AEA license conditions. Similarly, transportation to 
an AEA-licensed low-level radioactive waste disposal facility, and 
subsequent disposal, may also take place solely according to AEA 
requirements. However, eligible MLLW must still meet the RCRA land 
disposal treatment standards prior to transportation for disposal at a 
licensed low-level waste disposal facility.
    We believe our conceptual approach to disposal of low-activity 
mixed waste is complementary to the regulations we promulgated in 
subpart N. We believe that a significant proportion of MLLW could 
qualify as low-activity mixed waste (just as most low-level waste is in 
the lowest-activity class), depending on where the technical analyses 
indicate the limits should be set. The approach we are outlining today 
would also significantly increase disposal options, if fully 
implemented. Compared to the three operating low-level radioactive 
waste disposal facilities, there are roughly twenty commercial RCRA 
Subtitle C disposal facilities operating today, with many more that 
take waste from only a limited number of generators.
    The approach we took in promulgating the subpart N disposal 
requirements relied on a comparison of the RCRA and AEA requirements 
for disposal. In that context, and recognizing that RCRA waste meeting 
the treatment standards for land disposal would likely be significantly 
lower in risk, we determined that AEA disposal requirements offered 
sufficient protectiveness for the hazardous constituents in MLLW. Our 
approach to establishing disposal standards for low-activity mixed 
waste is similar in concept. For example, our approach would consider 
the effects of waste form for the treated LAMW and containerization in 
minimizing the availability of radionuclides in the waste for release 
in the presence of water. However, our approach will rely on modeling 
to determine when the risk to workers and the public from disposal of 
radionuclides is acceptably low. The LAMW concentration limits 
developed under this approach will be analogous to the RCRA 
concentration-based treatment standards that reduce the toxicity and 
mobility of hazardous constituents in the waste. Additional measures 
that support and build public confidence in this determination, such as 
ground-water monitoring for radionuclides, may be advisable.
    There will be unavoidable overlap of the mixed waste eligible for 
disposal under the two rules. Our subpart N regulations cover a broader 
spectrum of MLLW, while we expect the LAMW concept to address only the 
lower-activity portion of that MLLW spectrum. Generators with waste 
eligible under both rules may make their disposal choice based on cost, 
access to a disposal facility, and regulatory constraints.

C. How Would the RCRA Regulatory Framework Support a Viable Disposal 
Concept?

    We propose to rely to a large extent on the protections offered by 
the RCRA hazardous waste disposal facilities for disposal of low-
activity mixed waste. We believe that the RCRA Subtitle C requirements 
provide a uniform level of waste containment and isolation technology 
that warrants confidence in their ability to address low concentrations 
of radionuclides; although RCRA does not regulate on the basis of 
radioactivity, there is no general prohibition on disposal of material 
not regulated as hazardous in a hazardous waste facility, and some RCRA 
facilities are permitted to accept certain types of TENORM waste. In 
addition, requirements related to hazardous waste characteristics have 
evolved over the life of the Subtitle C program to the point that they 
are tightly controlled through application of treatment standards. 
Below we discuss several points that we believe provide strong support 
for the LAMW disposal approach.
1. Technological Basis for Disposal (RCRA Hazardous Waste Landfill 
Criteria)
    To assess the protectiveness of LAMW disposal at RCRA-C facilities, 
we first need to understand how the disposal cell itself will 
contribute to the isolation of radionuclides. It is recognized that 
RCRA and AEA employ different regulatory philosophies. RCRA has 
explicit engineering and construction criteria for Subtitle C 
landfills. Therefore, any permitted RCRA-C facility is expected to meet 
these basic criteria and they can be accounted for in the technical 
analyses. In contrast, as discussed further in section II.C.4, AEA low-
level waste facilities in 10 CFR part 61 must meet certain performance 
objectives to be licensed. Thus the AEA approach allows for some 
variation among AEA facilities, depending upon factors such as climate 
and site geology. This provides flexibility in facility design in that 
it can be tailored to the hazard of the waste. Ultimately, the purpose 
of both systems is to contain and isolate the waste in order to protect 
public health and the environment.
    We believe RCRA's uniformity of design, and the specific 
engineering features required, provide assurance that RCRA-C facilities 
can limit contact of waste with water (and subsequent leachate 
generation) and should allow disposal of LAMW containing low 
concentrations of radionuclides. The RCRA regulations describing 
landfill attributes are located in 40 CFR part 264, subpart N. They 
require, among other things, that a disposal facility have:
    [sbull] A cap on the disposal cell that minimizes infiltration of 
liquids, promotes drainage, minimizes erosion, accommodates settling 
and subsidence, and has permeability no greater than that of the 
disposal cell liner system or natural subsoils;
    [sbull] A liner system beneath the disposal cell constructed of 
materials of specified thickness, hydraulic conductivity, physical 
strength, and chemical resistance;
    [sbull] A leachate collection and removal system capable of 
limiting leachate depth above the liner to 30 cm; and
    [sbull] A leak detection system constructed with a specific slope 
and materials of a certain thickness, hydraulic conductivity, physical 
strength, and chemical resistance.
2. RCRA Treatment Standards
    Besides having specific requirements for disposal cell 
construction, RCRA also requires that hazardous waste be treated prior 
to land disposal. This treatment may serve two purposes: First, it can 
reduce the concentration of hazardous constituents in the waste, which 
also reduces the associated risk; second, it may change the physical 
form of the waste, which can change the volume of the waste, make the 
waste easier to handle, reduce the likelihood of releasing hazardous 
constituents from the waste, or reduce the likelihood that the waste 
itself will migrate out of the disposal cell (e.g., as a liquid or

[[Page 65129]]

leachate) and reach ground water. (By contrast, NRC requirements 
address waste characteristics, but NRC does not require specific 
treatment methods for waste prior to disposal. However, low-level 
radioactive waste is generally compacted, which reduces volume and 
increases stability but also increases radionuclide concentrations on a 
per unit volume basis. In addition, liquids and chelating agents must 
be minimized or otherwise managed to limit their impact on facility 
performance.)
    The RCRA Universal Treatment Standards (UTS) are located in 40 CFR 
part 268. Most are in the form of concentration limits of the 
respective hazardous constituents, but some are in the form of 
specified treatment technology (particularly in the case of hard-to-
treat wastes). The UTS are based on the level of reduction that can be 
achieved by available technology, not on risk reduction. However, by 
reducing the concentration of toxic constituents, the practical effect 
is some reduction in risk. We would appreciate comments on the need for 
measures, such as waste treatment to a specific waste form, that would 
help ensure that radionuclide concentrations established under the 
approach outlined today remain protective when implemented.
    We expect this approach to require that low-activity mixed waste 
comply with the RCRA UTS before allowing disposal at RCRA-C facilities, 
in keeping with existing restrictions. To the extent that treatment 
involves some kind of waste stabilization or solidification, we would 
consider this advantageous to keeping radionuclides immobilized in the 
disposal cell. We ask readers whether they believe there are situations 
in which compliance with the UTS may be unnecessary or inadvisable for 
wastes containing radionuclides. We request comment on the need to 
require a certain waste form for LAMW and the desirability of having 
standards (e.g., concentrations) that are dependent on waste form. We 
also request comment on whether a rule should explicitly require 
segregating treated LAMW meeting the UTS from untreated hazardous waste 
(waste disposed of before treatment standards were required). This 
would limit potential interactions with chemicals that could influence 
the ability of radionuclides to move in the environment. We believe 
this is probably not necessary, as disposal cells that were open prior 
to the treatment requirements are likely to have been closed for some 
time.
3. RCRA Disposal Facility Operating Standards
    RCRA is also explicit about how the facility must approach 
operational functions, both while the facility is operating and during 
the closure and post-closure phases. In particular, facility operators 
must follow specific procedures regarding (see 40 CFR part 264):
    [sbull] Inspections--the facility operator must inspect equipment 
and procedures in accordance with a written schedule (including 
inspecting the installation of the liner and leachate collection 
system), must inspect the operation of the landfill after storms, and 
must inspect the leachate collection system regularly during operation 
and post-closure;
    [sbull] Recordkeeping--the facility operator must maintain 
inspection records for at least three years and maintain records 
detailing the location, dimensions, and contents of disposal cells;
    [sbull] Monitoring/corrective action--the facility operator must 
conduct a ground-water monitoring program and implement corrective 
action when a hazardous constituent is detected in ground water at 
concentrations that exceed those listed in the facility's permit;
    [sbull] Closure/post-closure--the facility operator must install a 
permanent cap on the disposal cell that complies with engineering 
specifications, must have an approved closure plan that minimizes the 
need for further maintenance, must perform maintenance that becomes 
necessary throughout the post-closure period, and must submit a survey 
plat showing the locations and contents of disposal cells.
4. How Does AEA Licensing Compare to RCRA Permitting?
    Both the NRC and EPA have designed their disposal regulations with 
the intent of isolating waste from the environment to minimize 
exposures from the radiological or chemical constituents (in this 
document, we are focusing on the NRC requirements for LLRW disposal 
under 10 CFR part 61). There are a number of broad similarities between 
the two regulatory approaches that could translate into ``simplified'' 
AEA oversight. For example, both the AEA and RCRA:
    [sbull] Accept and regulate near-surface disposal as a means to 
contain and isolate waste;
    [sbull] Include measures to limit infiltration into the disposal 
cell (such as a cover/cap);
    [sbull] Require site monitoring during operations;
    [sbull] Require continued maintenance after facility closure; and
    [sbull] Recognize that there are certain site characteristics to be 
avoided (such as floodplains and other geologic hazards).
    However, there are also some noteworthy differences in the 
technical requirements for waste disposal. Some of these differences 
exist because of the way the regulations are written and implemented. 
RCRA regulations are more prescriptive and design-based than are the 
NRC requirements. Although both systems have basic requirements for 
site selection, RCRA does not require a landfill seeking a hazardous 
waste disposal permit to conduct performance assessments (site-specific 
modeling) to assess how waste disposal at the facility will protect 
human health and the environment after facility closure. Instead, by 
requiring a uniform (minimum) level of technology designed to provide 
containment and prevent releases, RCRA places the burden on the 
technology to perform as expected and thereby protect the public and 
environment. For example, RCRA requires that a disposal cell have a 
double liner constructed of certain materials and a leachate collection 
system capable of performing to certain specifications. RCRA 
regulations say, in effect, ``this level of technology is protective.'' 
An important point is that, under RCRA, leachate from a hazardous waste 
disposal cell is hazardous waste, and must be collected and treated 
accordingly. Similarly, leachate containing radionuclides could be 
newly generated mixed waste and be treated accordingly. We request 
comment on how we should address radionuclides in the LAMW leachate, 
particularly if the LAMW has been disposed of under some exemption from 
NRC requirements.
    On the other hand, NRC, in its regulations under the AEA, focuses 
more on standards of performance, rather than on construction 
specifications. The NRC has established a maximum dose level to the 
public; however, the burden is on the facility operator to satisfy the 
licensing authority that the facility, as sited and constructed, will 
not allow that dose to be exceeded. Thus, the NRC regulations require a 
detailed, site-specific operational and post-closure performance 
assessment to show that the facility will perform adequately. NRC 
regulations say, in effect, ``show that the level of technology you 
select, combined with the characteristics of the site you have 
selected, will meet this level of protection.'' License conditions, 
often including monitoring facility performance, are then established 
to

[[Page 65130]]

ensure that the level of protection is achieved.
    The nature of the waste can also affect the time needed for the 
hazard to diminish. RCRA establishes a minimum period of 30 years for 
facility maintenance and monitoring after closure of the disposal cell 
(with extensions as necessary to protect human health and the 
environment). NRC assumes a minimum period of 100 years for active 
maintenance, with control of the site continuing for an indefinite 
period before license termination because of the variety and 
concentration of radionuclides that could be disposed at such a site. 
Performance assessments conducted to meet 10 CFR part 61 licensing 
requirements include projections well beyond both the 30- and 100-year 
active institutional control periods.
    The environment in the disposal cell (e.g., pH, temperature, 
moisture) can affect the decomposition of many hazardous constituents 
(primarily organics, as many heavy metals persist essentially forever). 
Radionuclides, however, break down more predictably than do hazardous 
constituents. A radionuclide remains radioactive, and will take the 
same time to decay, regardless of its physical and chemical 
environment. Because some radionuclides take hundreds or thousands of 
years to decay, under the AEA, facilities are not expected to maintain 
perfect containment for these long periods until the waste is no longer 
radioactive. In fact, evaluations of AEA facilities typically include 
situations in which the disposal system does not perform as well as 
expected, with resulting limited releases. These projected limited 
releases become the basis for performance assessments used to make 
compliance or licensing decisions. Under NRC regulation, the 
combination of engineered barriers, waste form requirements, and 
natural site characteristics are evaluated to assure that the 
concentration of radionuclides reaching the accessible environment does 
not exceed regulatory limits. Although AEA regulatory practice focuses 
on preventing infiltration, if the cell cover degrades it is preferable 
for infiltrating water to move quickly out of the disposal cell in 
order to minimize contact time with the waste (avoiding a ``bathtub'' 
situation). Thus, this approach of recognizing the potential for 
limited releases delays and spreads out the releases over time and 
minimizes peak doses. In practice, many long-lived radionuclides will 
not move with ground water, but will remain within the general area of 
disposal because of their chemical characteristics. (Assumptions and 
knowledge about the mobility of individual elements in various 
environments influence the selection of modeling parameters. Typically, 
conservatism is introduced into performance assessments to help account 
for uncertainties in long-term modeling. It should also be noted that 
the behavior of a particular element in the environment will be 
essentially the same whether it is radioactive or not.) In this vein, 
NRC regulations expect the evaluation of a potential disposal site for 
``at least a 500 year time frame'' while also considering the 
``indefinite future.''\10\
---------------------------------------------------------------------------

    \10\ 10 CFR 61.7(a).
---------------------------------------------------------------------------

    There are several fundamental issues to be considered in 
determining the feasibility of an approach involving simplified NRC 
oversight for RCRA-C facilities, particularly where NRC requirements 
are more extensive than RCRA requirements. Areas of overlap in which 
one regulatory regime would take primacy also are important. These 
issues include:
    [sbull] Post-Closure Care: Should operators be required to maintain 
the facility for periods longer than the minimum 30 years required by 
RCRA? (RCRA has discretion to extend this period, and some States have 
done so.) What about for 100 years, with the expectation of longer site 
control, as NRC requires?
    [sbull] Land Ownership: RCRA allows private ownership of disposal 
sites, with the possibility of future sale. NRC licensing under 10 CFR 
part 61 is contingent on eventual ownership of the site by a Federal or 
State government entity.
    [sbull] Financial Assurance: AEA disposal facilities generally put 
up a higher initial financial assurance than RCRA facilities to account 
for longer periods of care.
    [sbull] Ground-Water Monitoring and Corrective Action: If there are 
releases of hazardous constituents, RCRA authorizes corrective action 
(corrective action for hazardous constituents might be effective for 
AEA materials combined with the hazardous constituents). RCRA 
regulations have specific requirements for ground-water monitoring of 
hazardous constituents (40 CFR 264.92-94), which are incorporated into 
the facility permit. While NRC regulations have general requirements 
for site monitoring ``capable of providing early warning of releases of 
radionuclides from the disposal site before they leave the site 
boundary'' (10 CFR 61.53), they do not contain separate ground-water 
standards. Detailed monitoring requirements may be developed in the 
facility license.
    This ANPR addresses the possibility of alternate disposal methods 
for LARW. We will work with NRC to develop appropriate concentration 
limits that are protective of the general public and that minimize the 
need for additional NRC requirements. However, NRC may decide that 
additional requirements on generators or disposal facilities are 
necessary for NRC to meet its obligations under the AEA. We request 
comment on these issues.

D. What Methods Could Be Used To Assess the Risk of Disposing of LAMW?

1. Modeling as a Basis for Establishing Risk or Dose Basis
    Mathematical modeling is a fundamental tool of radioactive waste 
management. It assists regulators in assessing expected releases (and 
subsequent doses) to the environment from disposal facilities over 
periods of hundreds to thousands of years. However, these projections 
over time should not be viewed as firm predictions. Instead, they can 
give regulators and the public confidence that certain limits will not 
be exceeded. Actual ``proof'' of performance would involve active 
measures such as facility monitoring.
2. Comparison of Risks From Radioactive and Hazardous Waste Disposal
    The public may not have a good understanding of the relative risks 
from radiation and hazardous waste. It is probably true that many 
people would consider radioactive waste to be more of a danger than 
hazardous waste. It is important that the public be informed of the 
risks involved in our approach and be satisfied that those risks are 
managed appropriately. We have included a general discussion of risks 
from both types of waste below.
    The risk from radioactive material depends on the type of radiation 
emitted and the path(s) of exposure. Gamma radiation is most 
significant for external exposures. Alpha emissions are of most concern 
for inhalation. NRC requirements for land disposal typically put limits 
on radiation doses to the public. Dose can be converted to risk, 
although risk can also be calculated directly from exposures; the 
results tend to differ for the two methods, and dose itself can be 
expressed in several ways that may not be equivalent (a more detailed 
discussion of various dose standards is located in section II.D.5). As 
discussed above, facilities seeking an NRC radioactive waste disposal 
license

[[Page 65131]]

must satisfy the licensing authority that they can meet these limits 
through long-term performance assessments. The performance assessment 
evaluates the projected inventory of radionuclides in the disposal cell 
at closure and models the movement of those radionuclides in the 
environment using site-specific conditions.
    RCRA considers risk when deciding which wastes should be defined as 
hazardous. RCRA evaluates how individual constituents, when land 
disposed, will behave in the environment over long periods of time. 
Listed wastes (those designated by F, K, P, or U waste codes) 
automatically include substances that have a lifetime cancer risk of 
10-\4\ or higher to a nearby receptor (i.e., exposures to 
the contaminant would cause a fatal cancer to one person or more in a 
population of 10,000). RCRA lists substances with a lifetime cancer 
risk between 10-\4\ and 10-\6\ on a case-by-case 
basis. It does not list those substances with a lifetime cancer risk 
less than 10-\6\ (i.e., fewer than one in 1,000,000). For 
non-cancer toxic effects, if the concentration of the constituent in 
leachate exceeds the drinking water treatment standard for that 
constituent (i.e., the ``Hazard Quotient'' is greater than or equal to 
1), the waste is listed as hazardous. Toxicity characteristic wastes 
(designated by the D waste code) are defined at the concentration that 
corresponds to a 10-\5\ lifetime fatal cancer risk. In 
determining whether to list a waste as hazardous, RCRA does not focus 
on individual site characteristics, but conducts generalized 
assessments that consider climatological and hydrogeological variations 
around the country along with how much of a particular waste is 
generated and how many sites across the country might accept such 
waste, and does not credit the engineered features required in the 
regulations (as we would expect to do for LAMW).
    Since 1998, hazardous waste must meet the Universal Treatment 
Standards (UTS) in 40 CFR part 268 before being land disposed. The UTS 
are constituent-specific concentration or treatment technology 
standards that effectively reduce the toxicity, although the waste must 
still be disposed of as hazardous. Our recent Hazardous Waste 
Identification Rule (HWIR) effort is intended to establish risk-based 
constituent concentrations at which listed hazardous wastes could 
``exit'' regulation under Subtitle C. They could then be disposed of as 
``solid waste'' under Subtitle D.
    In sum, both the NRC and RCRA approaches serve to limit the risk to 
the public from waste disposal. Although we plan to conduct modeling of 
the disposal cell (that may combine aspects of the site-specific and 
generalized approaches), we will also examine the NRC and RCRA disposal 
regulations to support the modeling efforts.
3. Modeling Scenarios
    The modeling effort would have two aims. The first aim would be 
simply to assess the performance of the generic RCRA-C design in terms 
of long-term radionuclide containment. The second aim would be to 
derive limits for radionuclide concentrations in the wastes to be 
disposed of in such a facility. Both NRC and EPA will have to be 
satisfied with the modeling to successfully implement this approach. 
EPA's modeling approach is detailed below and will be coordinated with 
the NRC.
    a. Situations to be Addressed. The initial step in a risk or dose 
assessment is to determine how a person might be exposed to the 
material in question. If there is no exposure, as for the period when 
waste is contained and isolated within an intact disposal cell, the 
risk or dose will be zero. There are four situations that could result 
in human exposures to the radionuclides in low-activity mixed waste:
    [sbull] The gradual degradation of the disposal cell through 
expected natural processes, which results in radionuclide releases over 
long periods of time (100 years or more);
    [sbull] Releases caused by ``off-normal'' events, such as unusually 
high precipitation over a period of years;
    [sbull] Exposures to RCRA disposal facility workers handling LAMW; 
and
    [sbull] Exposures caused by human activity that disrupts the 
disposal site.
    These scenarios are discussed in more detail in the following 
sections. We request comment on the adequacy of these scenarios and 
whether there are others we should consider. We recognize that similar 
scenarios could be used to describe potential exposures to the 
hazardous constituents already handled at the facilities under 
consideration, and that such exposures may be of equal or greater risk 
than would be presented by radionuclides; however, our purpose in this 
discussion is to determine the best way to demonstrate that the RCRA 
technology is adequately protective for radionuclides.
    b. Long-term Disposal Cell Performance. i. General Discussion. To 
model the long-term performance of the RCRA hazardous waste disposal 
cell, assumptions must be made about the initiation of failure of the 
cap and liner system to allow water to enter the cell, interact with 
the wastes, and exit the disposal cell to the surrounding area. Once 
released from the disposal cell, contaminated water would percolate 
downward through the unsaturated zone above the local water table, 
eventually reaching the water table and migrating laterally in the 
direction of ground-water flow toward a receptor at some distance from 
the disposal facility. For this conceptual model, the receptor is a 
person living close to the facility who receives doses from the use of 
contaminated ground water. Other pathways of exposure would include the 
surface transport of waste accidentally spilled during operation of the 
disposal facility.
    With this simple conceptual model, potential releases from the 
disposal cell can be calculated for assumed waste concentrations by 
specifying the other parameters involved in contaminant transport 
calculations. Important factors for consideration in the modeling 
calculations include:
    [sbull] Rainfall rates;
    [sbull] Thickness of the unsaturated zone under the disposal cell;
    [sbull] Distance from the disposal cell to the well supplying water 
to the receptor;
    [sbull] Drinking water consumption rate from the contaminated well 
and amounts of contaminated food consumed;
    [sbull] Ground-water flow rates;
    [sbull] Effectiveness of the cap in controlling water infiltration 
and the liner in retarding contaminant movement;
    [sbull] Radionuclide retardation effects (primarily sorption into 
the geologic media and solubility constraints); and
    [sbull] Radioactive decay along the flow paths.
    To test the performance of the disposal cells, we would model a 
wide range of site-specific conditions in arid and humid climatic 
settings as well as variations in hydrogeologic conditions, such as 
variations in the thickness of the unsaturated zone below the disposal 
facility and ground-water flow rates in the saturated zone. Variations 
in all these parameters will affect the exposures incurred by the 
receptor for the scenarios analyzed. We would expect to base our 
modeling on data available for actual sites in order to capture the 
variation in various site parameters. We could use the data for DOE 
sites, because they represent a wide range of climatic and 
hydrogeologic conditions across the nation, and because they are 
relatively well-characterized and a good data base of site-specific 
conditions is available for them. We also could use site data

[[Page 65132]]

from RCRA-C facilities across the nation; the most comprehensive 
approach would probably be to create a combined data set to ensure that 
the modeled sites reasonably address the range of potential waste 
disposal facilities subject to RCRA-C landfill requirements. We would 
expect to adopt a conservative approach to selecting model parameters, 
as described in more detail later. Additional sensitivity studies would 
be done to identify the variables that most prominently control 
disposal cell performance and exposures to the hypothetical receptor 
outside the facility.
    We expect to address a variety of site characteristics and exposure 
scenarios in the analyses described below. These analyses will 
encompass a broad range of potential conditions from which waste 
concentrations could be derived for uniform waste acceptance criteria 
nationwide. It is possible that some hazardous waste landfills could 
dispose of waste containing higher concentrations of radionuclides than 
would be appropriate for the ``average'' facility while maintaining the 
appropriate level of protection for the public and environment. For 
example, waste acceptance criteria could be derived by explicitly 
examining site characteristics, such as annual precipitation levels. 
Alternatively, disposal facilities with unique features, such as very 
deep ground-water tables, may be able to safely contain wastes with 
higher radionuclide content than the levels defined in a broadly 
applicable standard. Therefore, we request comment on whether 
individual disposal facilities should be given the opportunity to 
demonstrate that they can accept waste with radionuclide concentrations 
that exceed those that would be established by such a standard.
    The basic scenario to model would be an expected performance case, 
in which the disposal cell degrades over time and radionuclide releases 
from the bottom of the cell infiltrate the underlying unsaturated zone 
and move into the saturated zone. From that point, the ground-water 
flow in the saturated zone carries radionuclides laterally to a well 
supplying the water needs of a defined receptor (person) living near 
the former disposal cell. The modeling would allow us to calculate 
exposures to the receptor from direct ingestion of drinking water and 
ingestion of food produced using contaminated ground water from 
hypothetical wells. We could also examine the impact of volatile 
radionuclides, such as might be encountered during irrigation. These 
radionuclides can sometimes give significant exposures through 
inhalation. However, we would expect ingestion exposures from various 
ground-water uses to be much higher than those from inhalation of 
volatile radionuclides.
    We believe that the modeling approach should be appropriately 
conservative. By ``conservative,'' we mean that we would select 
modeling parameters so that releases from the disposal cell are more 
likely to be over-estimated than under-estimated. This approach helps 
to account for uncertainty by incorporating an additional margin of 
safety. However, it would not be appropriate to be overly conservative. 
Focusing on ``worst case'' conditions leads to reliance on unrealistic 
modeling results. Major areas of conservatism could include:
    [sbull] The distance from the disposal cell to the receptor well 
could be assumed to be short--

--Prevents expected dilution of the contamination plume with larger 
volumes of ``clean'' ground water
--Less radionuclide retardation by soils along ground-water flow path
--Institutional control over site may prevent a well close to the 
disposal cell
--Early detection of radionuclide release could trigger facility 
closure and corrective action

    [sbull] Radionuclide retardation parameters could be selected for 
less retardation and faster transport
    [sbull] Disposal facility cap and liner could be assumed to fail 
sooner than normally anticipated after facility closure

--Cap and liner designed to exceed RCRA 30-year post-closure monitoring 
period
--Assumption of failure introduces infiltration and flow through 
disposal cell earlier than normal, when radionuclide inventories are 
highest.

    As stated above, a primary purpose of modeling the long-term 
performance of the RCRA-C disposal cell would be to derive radionuclide 
concentrations in wastes that would assure that exposures from any 
disposal cell releases would be at acceptably low levels to support a 
simpler NRC regulatory process for the disposal of low-activity 
radioactive waste at RCRA-permitted hazardous waste landfills. We 
expect that modeling will show that some radionuclides reach the 
receptor well within the modeling period. For these radionuclides, 
waste concentration limits would likely be calculated by simply scaling 
the exposures calculated in the modeling exercise to the acceptable 
level of protection (we request comment on the appropriate level of 
protection to consider for this approach in section II.D.5). These 
limits would function as waste concentration limits for implementing 
the RCRA-C disposal option. Wastes with radionuclide concentrations 
higher than established in the rule would not be eligible for disposal 
in the RCRA-C disposal cell, although consideration could be given to 
including in the rule specific additional conditions that would permit 
such disposal (essentially, a ``graded'' approach in which more 
extensive radiation protection measures are applied as radionuclide 
concentrations increase). Another alternative would be to allow a 
disposal facility to petition to have higher waste concentration limits 
based upon the results of site-specific performance assessments. 
However, this would make it more difficult for NRC to pursue a 
simplified regulatory approach.
    ii. ``Wet'' and ``Dry'' Sites. We believe that using a conservative 
modeling approach will incorporate a significant margin of safety 
sufficient to compensate for any uncertainties in the eventual 
performance of the RCRA-C disposal design. Assessing just how 
significant the margin of safety will be depends on how waste 
radionuclide concentrations will be applied to disposal facilities. We 
see two basic approaches, discussed generally below. We request comment 
on these and other potential approaches.
    The first option (``Option 1'') would be to have all disposal 
facilities use the same waste concentration limits regardless of the 
projected disposal cell performance. Experience tells us we would 
expect to see significant variation in performance under the wide range 
of climatic and hydrogeologic conditions that we model. Essentially, 
Option 1 imposes the concentration limits determined for the worst case 
disposal cell we would model on all potential disposal sites, 
regardless of the relative merits of any particular site conditions. 
Option 1 would thus add an additional level of conservatism to an 
already conservative approach. This approach has the potential to 
significantly decrease the usefulness of the rule by placing additional 
limitations on the waste streams addressed by our proposal (i.e., waste 
concentration limits based on a ``worst case'' situation). An advantage 
of Option 1 is that it is simple to implement, in the sense that no 
variations in the waste concentration limits would be permitted.
    Option 2 would allow different concentration limits to be used 
depending on the projected performance of the disposal facility. For 
example,

[[Page 65133]]

performance modeling might indicate that sites with lower rainfall and 
deeper ground-water tables perform significantly better with respect to 
limiting off-site doses from radionuclides that can be transported away 
from the disposal cells by infiltrating ground water. Such a result 
would not be surprising, simply because the travel time for 
radionuclides to produce an off-site dose to individuals is likely to 
be longer if infiltration is less and it takes longer to reach ground 
water in the first place. For these ``dry'' sites, higher waste 
concentrations for those radionuclides readily transported with ground 
water could apply to the disposal facility while still meeting the same 
exposure limits as the ``wet'' sites (with higher rainfall and 
shallower ground-water tables). For both options, the exposure limits 
which underlie the rule would be the same. If site conditions leading 
to superior overall performance were clearly seen in the modeling, 
Option 2 would take advantage of that projected performance, whereas 
Option 1 would not.
    Should Option 2 prove preferable, we would then face the challenge 
of defining desirable site conditions that would allow disposal of 
waste with higher radionuclide concentrations in some subset of RCRA-C 
facilities. In general, annual precipitation is an important parameter 
(and is also one for which data can be obtained easily), but often 
varies too much to be used by itself to characterize site behavior. 
Experience in modeling the movement of radionuclides through the 
environment, as well as empirical observation, indicate that the depth 
from the bottom of the disposal cell to the ground water is another 
important parameter that also is measured easily. Although depth to 
ground water also can vary (e.g., with seasonal variation in 
precipitation), we believe that it could be possible to use 
precipitation and depth to ground water, in combination with other 
parameters, to distinguish sites that can accept higher concentrations 
of some radionuclides without presenting undue hazards to human health 
and the environment. This approach essentially favors sites that have 
long travel times from the disposal cell to the ground-water table 
(generally through some combination of deep ground water and soil types 
that tend to slow the movement of infiltrating water) and limited 
infiltration of water through the cap to the waste layer (generally 
through a combination of low precipitation and high 
evapotranspiration).
    We recognize that there are many other parameters that affect 
radionuclide transport. However, it may be difficult to obtain the 
necessary information, and necessarily more complex to devise a method 
to combine the parameters. We encourage public comment on the concept 
of distinguishing among sites, as well as ideas on methods to make that 
distinction. As an initial point of review for interested commenters, 
we have examined this issue for relatively small Subtitle D facilities 
in remote locations. Because many of these facilities are in 
communities with limited resources, we determined that ground-water 
monitoring could be limited if annual precipitation (including 
evapotranspiration) was less than roughly 25 inches, as long as there 
is no evidence of ground-water contamination. We also developed a 
screening tool for Subtitle D facilities seeking no-migration variances 
that considers precipitation, depth to ground water, net infiltration, 
evapotranspiration potential, and permeability of the unsaturated zone. 
This approach implicitly estimates travel time from the disposal cell 
to the ground water. See ``Preparing No-Migration Demonstrations for 
Municipal Solid Waste Disposal Facilities: A Screening Tool,'' EPA530-
R-99-008, February 1999 (available at http://www.epa.gov/osw).
    We are aware that the approach embodied in Option 2 is somewhat 
different from that taken by existing RCRA regulations. RCRA is a 
national program and we have written regulations accordingly. In 
practice, this means that all members of the regulated community have 
to meet the same standard, whether it is numeric or technological 
(i.e., a site with ``good'' transport characteristics does not get to 
accept higher concentrations of hazardous constituents than sites with 
relatively poorer characteristics). Under certain conditions, the 
standard may be adjusted to meet the regulated party's specific 
circumstances (e.g., through a delisting petition or variance). In 
these cases, we create a process that an applicant can use to justify 
an alternative standard. This would be somewhat analogous to allowing a 
disposal facility operator to calculate site-specific concentration 
limits, as we discussed earlier in this section.
    Another option would be to set other restrictions on site 
characteristics for RCRA-permitted landfills accepting low-activity 
mixed waste for disposal. We believe the modeling should be conducted 
with the intent that any facility that could be sited and permitted 
under RCRA Subtitle C could safely dispose of LAMW. However, some 
commenters may believe that some locations would not be appropriate for 
radionuclide disposal without additional conditions or site-specific 
analysis, especially if these locations have relatively poor overall 
transport characteristics or geologic features such as fractures in the 
subsurface that might provide faster transport pathways to the ground 
water. If we were to identify such criteria that go beyond the existing 
RCRA criteria (i.e., if simply having a RCRA permit is not sufficient), 
what should they be? If a site did not meet the basic eligibility 
criteria, should there be an alternative ``qualification'' process 
(e.g., through the type of site-specific analysis discussed earlier in 
this section)? For purposes of an implementable standard, the basic 
eligibility criteria would need to be clearly defined in the rule 
itself (NRC may or may not require additional conditions or 
restrictions on waste streams under its authority before RCRA-C 
facilities could accept those wastes). We also would need to clearly 
relate these specific characteristics to a performance objective. 
Therefore, we also ask that commenters provide supporting technical or 
scientific information that describes how their recommendations would 
improve facility performance, and how they would define ``good'' 
performance. The criteria could include climatological characteristics 
such as annual precipitation, transport characteristics of the 
unsaturated zone, depth to ground water, or proximity to other features 
that affect site suitability. These minimum criteria then would be 
factored into the basis for deriving radionuclide concentrations from 
off-site exposures.
    We also note that RCRA authorized States can issue standards that 
are more stringent than the national program. This means that some 
States could already have siting criteria for RCRA facilities that 
explicitly address some of the factors mentioned above. We would 
welcome comments that identify such criteria and indicate the technical 
and scientific basis for their adoption. As we have stated before, we 
believe that the modeling should be sufficiently conservative to 
account for reasonably anticipated variations in site performance, so 
that special conditions would not be necessary.
    iii. Modeling Timeframe. Another factor in modeling the long-term 
performance of a disposal cell is the time period covered by the 
modeling. We believe that a 1,000 year modeling period may be 
appropriate, although we

[[Page 65134]]

also expect to examine performance over longer times (e.g., up to 
10,000 years) to see how well a 1,000 year modeling period captures the 
behavior of most radionuclides. There is no consensus on the most 
appropriate time for performance assessments. Periods from 100 years to 
10,000 years have been used in assessments for various waste disposal 
methods. While NRC regulations do not specify a time period in 10 CFR 
part 61, NRC guidance in ``A Performance Assessment Methodology for 
Low-Level Radioactive Waste Disposal Facilities,'' NUREG-1573 (2000), 
endorses a 10,000-year modeling period for licensed LLRW sites. 
However, NRC generally uses a 1,000-year period for assessing the dose 
consequence of residual radioactive material at the time of license 
termination. NRC has its radiological criteria for license termination 
in 10 CFR part 20, subpart E. The 1,000-year period is typical for 
evaluations of low-level waste disposal (as opposed to high-level waste 
or spent fuel disposal, which generally focus on much longer time 
periods), and is specified by DOE for performance assessments at its 
disposal facilities (DOE Manual 435.1-1, ``Radioactive Waste Management 
Manual''). However, some believe that modeling for low-level 
radioactive waste must also look at periods well beyond 1,000 years (to 
10,000 years or longer) to fully address the possibility of significant 
change to the site from erosion or other long-term or cyclic processes. 
Others believe that a modeling period of 1,000 years or longer 
stretches the credibility of what modeling can reasonably project, and 
that at most it is possible to examine with confidence only a few 
hundred years (particularly with near-surface facilities, which are 
more easily affected by climatic or geologic changes than are deep 
subsurface facilities). We believe that 1,000 years may be appropriate 
because it is likely that the rule will involve such low radionuclide 
concentrations that the value of modeling over longer periods becomes 
more questionable in the light of expected changes in surface 
conditions over longer periods. It may also be appropriate to consider 
periods on the order of 100 years as more consistent with the RCRA 
approach to post-closure site care. We request comment on the 
appropriate timeframe for modeling.
    c. ``Off-Normal'' Events. In assessing the long-term performance of 
the disposal cell, we typically use fairly well defined climatic 
conditions (e.g., precipitation rates) and incorporate assumptions 
about the behavior of the engineered cap and liner. However, we must 
also consider what happens when the system departs from ``normal'' 
behavior. Situations to be examined would include heavier than normal 
precipitation over a period of years (or possibly the indefinite 
future), alternative cap and liner degradation scenarios, and the 
possibility that the rate of water entering into the disposal cell 
would exceed the rate exiting the cell, causing water levels to rise 
inside the cell. In such a situation (also known as the ``bathtub 
effect''), waste remains in contact with water and radionuclide 
concentrations can build up in the water collected in the disposal 
cell, so that when releases to the subsurface occur, radionuclide 
concentrations are higher than they would be if the water spent less 
time in contact with the waste. Alternatively, continued heavy 
precipitation could cause the water level to overflow the disposal 
cell, providing a surface pathway for radionuclide transport.
    d. Disposal Facility Worker. For radionuclides that remain immobile 
under the off-site exposure modeling described above (i.e., those that 
do not reach the receptor well within the modeling period, even with 
conservative transport assumptions), there must be another means of 
developing waste concentration limits. One approach that might be 
considered is the possible exposure that workers at the RCRA disposal 
facility might receive because of radiation from the waste material. In 
this case, exposures to the RCRA-C worker would also serve as a 
benchmark for public exposures, both during the facility's operational 
life and after final closure. Assessing worker dose will allow 
estimations of exposures to the public without relying on excessively 
speculative exposure scenarios; as discussed below, we believe that 
anyone who is not directly handling the waste will receive much lower 
exposures than would be expected of a worker.
    The worker exposure analysis being considered would serve two 
functions. First, it would limit potential exposures to the general 
public in a manner that is generally consistent with the risk 
management approach for radiation exposure to members of the general 
public that EPA uses in its regulatory programs and NRC uses at fully-
licensed low-level waste disposal facilities. We would expect exposures 
to people not directly handling waste to be much less than the 
exposures considered as a reference level for modeling. We believe that 
this will ensure that actual exposures to true members of the general 
public, such as visitors during the operating life of the facility, 
will be minimal. We believe such an approach is appropriate for the 
disposal of low-activity mixed waste under this proposal. Second, it 
should provide a reasonable basis for NRC, and Agreement States, to 
determine whether significant additional worker protection requirements 
beyond those of RCRA are necessary. Specifically, whether NRC should 
consider requiring inclusion of training, personal dosimetry, record 
keeping and reporting, in its regulatory approach. The goal is to 
identify radionuclide concentrations that are low enough for the NRC to 
conclude that it is unnecessary to consider RCRA workers as 
occupational workers under NRC regulations. We also note that workers 
handling AEA material are subject to NRC's occupational radiation 
standards, rather than Occupational Safety and Health Administration 
(OSHA) standards. Workers handling non-AEA material are subject to the 
ionizing radiation standards issued by OSHA, which are found in 29 CFR 
1910.1096. We anticipate that NRC's consideration of worker protection 
requirements would be likely to address the necessary elements of the 
OSHA requirements.
    We emphasize that we do not intend to set a standard for worker 
exposure. However, we are considering modeling several worker exposure 
scenarios to assist in setting the radionuclide concentration limits 
for LAMW. Some scenarios might assume that the waste already has been 
treated and stabilized in a cement/concrete mixture, or in a less dense 
medium such as polyethylene. This would mean that the radionuclides 
most likely to be limited by a worker scenario are those that emit 
strong gamma radiation. Alpha, beta, and weak gamma emissions are not 
as likely to be able to escape the stabilized waste form to expose the 
worker. However, we are also considering scenarios involving bulk waste 
that is neither solidified nor containerized. These scenarios would 
present a greater risk of waste becoming airborne, leading to exposure 
by inhalation or ingestion. In such cases, the alpha, beta, and weak 
gamma emissions would be of more importance than for stabilized waste 
forms. We seek comment on the proportion of bulk waste that might be 
disposed under this rulemaking.
    e. Transportation Worker. It might be necessary to consider 
exposures to a worker involved in transporting waste to the RCRA 
disposal facility. The transportation worker would most likely be 
exposed through pathways similar to a disposal facility worker who 
handles waste containers within the facility. In

[[Page 65135]]

such a case, we would make assumptions about how close the worker is to 
the waste and for what length of time. We would also consider 
Department of Transportation requirements for transportation of 
radioactive material.
    f. Post-Closure Site Use. The worker exposure modeling we envision 
would also help assure limited exposures to the public in the future, 
when all waste is buried and the site is closed. Because existing 
regulations allow RCRA sites to remain privately owned, it is possible 
that a site could be made available for some limited (surface) use 
after closure. People who casually traverse the site, or even spend 
hours at a time engaged in an activity, would not be expected to 
receive doses that exceed those calculated for the worker, and 
therefore such doses should be acceptable.
    When a Subtitle C disposal facility closes, RCRA requires that the 
owner/operator file a survey plat with the local land-use authorities 
and the EPA Regional Administrator that shows the location of all 
hazardous waste units.\11\ The survey plat must note that the future 
use of the land is restricted in accordance with applicable 
regulations. The deed to the property also must state that it has been 
used to manage hazardous waste and must cite the appropriate 
restrictions on future use. At a minimum, use of the property that will 
disturb the integrity of the final cover, the liner, or other parts of 
the containment system is not permitted unless necessary to protect 
human health and the environment, or if such use will not increase the 
potential hazard to human health and the environment.
---------------------------------------------------------------------------

    \11\ 40 CFR part 264, subpart G.
---------------------------------------------------------------------------

    The facility's owner or operator must construct the final closure 
cap to minimize infiltration and erosion and accommodate settling or 
subsidence with little maintenance (40 CFR 264.310, although active 
maintenance would be possible during the post-closure care period). 
Even in the event of some noticeable erosion of the cap, which would 
not occur until well after final closure, doses to an exposed person 
should remain well within acceptable public dose limits. Because of the 
multi-layer cap construction, erosion by itself should not be 
sufficient to expose the waste. We believe that the controls 
established by RCRA will be adequate to prevent intrusion, more 
extensive use, or disruption of the site. NRC may apply the 10 CFR part 
20, subpart E, unrestricted use standard of 25 mrem to RCRA sites 
chosen for disposal of low-activity mixed waste. If subpart E is 
applied, NRC might not impose additional facility requirements. On the 
other hand, NRC could decide that additional controls for such sites 
are necessary. Specifically, NRC could impose extended post closure 
care, restricted access after closure, limitations on land use and 
restricted site ownership requirements to such disposal sites. In this 
ANPR, we are assuming that such additional requirements will not exist.
    Although we believe limited use of an undisturbed LAMW disposal 
site is not likely to present a significant risk to members of the 
public, we must consider the possibility of more extensive use 
involving a disturbance of the disposal cell. A common scenario for 
such an analysis involves a person who builds a house on the disposal 
site, where the construction involves excavation of some portion of the 
disposal cell, disturbing the waste layer and scattering of the 
contaminated material on the surface. The foundation and basement could 
be constructed at some depth in the disposal cell, and the resident 
could engage in small-scale crop production or raise some livestock on 
the contaminated site. Further, in locating water to support the 
resident, it might be assumed that a well is drilled through the 
disposal cell, involving some exposure to the driller(s) as 
contaminated material is brought to the surface.
    This last possibility introduces the prospect that some disturbance 
of the cell would enhance transport of radionuclides to the off-site 
receptor. In past actions (e.g., geological disposal) we have addressed 
a person who uses heavy equipment, such as a drill rig, to penetrate 
the waste layer and cell liner, essentially creating a pathway for 
radionuclides to move through the unsaturated zone to the aquifer. If 
one assumes this type of drilling scenario, how would such a 
disturbance affect the release and transport of radionuclides? The most 
likely effect would be to create a pathway for the transport of 
material containing radionuclides through the unsaturated zone into 
direct contact with the aquifer. We would expect that only a very small 
volume of waste would be affected by such action. Whether the waste is 
solidified or not, the bulk of the radioactive material would be likely 
to stay within the confines of the original disposal cell. It is also 
clear that there would be no change in the way radionuclides are 
released from the waste material remaining in the cell. Once a 
radionuclide is released, however, the penetration may provide a 
preferred pathway that decreases the travel time through the 
unsaturated zone.
    If they could occur, the types of site disturbances described above 
would happen at some time in the future beyond the end of the RCRA 
post-closure period. We do not consider such disturbances to be very 
likely, given the site controls prescribed by RCRA regulations,\12\ but 
must examine them as an extreme scenario. In its rulemaking for 10 CFR 
part 61, NRC concluded that the possibility of extensive inadvertent 
intrusion activities at near surface disposal facilities was not 
credible for waste in a structurally stable waste form (that is, as 
long as the waste remained in a form recognizably man-made, either in a 
stabilizing medium or container, intruders would determine that it 
should not be disturbed).\13\ If we assume that the intrusion occurs 
after any solidified waste has broken down or containers have degraded, 
this would likely be several hundred years beyond site closure, 
suggesting that shorter-lived radionuclides will have decayed. We note 
that hazardous constituents that do not degrade over time, such as 
heavy metals, will still be present in the disposal cell and may 
present a risk comparable to or greater than the risk from 
radionuclides. We also note that the closure requirements described 
above apply to Subtitle C facilities. As commenters consider the 
applicability of this approach to Subtitle D facilities (see section 
II.A.2), it would be appropriate to consider whether the same post-
closure exposure scenarios would apply to those facilities.
---------------------------------------------------------------------------

    \12\ 40 CFR part 264.
    \13\ See Draft Environmental Impact Statement on 10 CFR part 61, 
NUREG-0782, Vol. 2, page 4-53, Sept. 1981.
---------------------------------------------------------------------------

4. Other Considerations Affecting the Risk Analysis
    a. Use of Part 61 Classification System. For LLRW, the NRC system 
defines three waste classes (A, B, C) by the concentration of each 
radionuclide. Class A has the lowest concentrations of short- and long-
lived radionuclides and is the least restrictive in terms of packaging 
requirements. Classes B and C have more stringent packaging and 
stabilization requirements. Class C waste must be located at least 5 
meters below ground. NRC does not consider low-level radioactive waste 
that exceeds Class C concentrations (``Greater-than-Class C'' waste) to 
be generally suitable for disposal in a near-surface facility. Some 
radionuclides do not move easily with ground water (or are very short-
lived) and may also not be significant contributors to worker or post-
closure

[[Page 65136]]

public exposure. This means that the limiting concentrations could be 
very high if we relied solely on the various modeling scenarios we have 
identified. In some cases the limiting concentrations from modeling may 
exceed the maximum concentrations established by the NRC for Class A 
low-level radioactive waste (see 10 CFR 61.55). In these cases, we 
believe that it might be appropriate to set the concentration limit 
equal to the Class A maximum value.
    It is important to use credible modeling scenarios to the extent 
possible to establish the capability of the RCRA-C technology for 
radionuclide containment and isolation, and not to rely on the Class A 
restriction or other such considerations, except in special cases. We 
are concerned that it could be very difficult for us and NRC to justify 
a ``simplified'' regulatory approach if a significant number of 
radionuclides were at their Class A maximum values. That is, it would 
be less likely that the resulting concentration limits would be 
appropriate for disposal in RCRA-C facilities in the absence of 
significant NRC licensing criteria. In any event, it would defeat the 
purpose of simplifying LAMW disposal to require RCRA-C facilities to 
undergo a complicated licensing process.
    b. Waste Form and Packaging. An important factor in this analysis 
is waste treatment prior to disposal. Mixed waste must undergo 
treatment for its hazardous constituents to comply with the RCRA land 
disposal restrictions of 40 CFR part 268. Treated RCRA waste often is 
solidified or stabilized in some type of encapsulating medium to 
prevent migration of the remaining hazardous constituents. Cement/
concrete is the most common encapsulating medium because of its ready 
availability, cost, and experience in its use. Other encapsulating 
technologies, such as vitrification or use of polymers or ceramics, are 
less common but may be more effective than cement/concrete at binding 
mobile constituents. There are no such treatment requirements for Class 
A LLRW, other than restrictions on liquid content (although LLRW must 
be treated ``to reduce to the maximum extent practicable'' the hazard 
from non-radiological material). The modeling is expected to consider 
various waste forms. Of the available encapsulating technologies, we 
would consider use of cement/concrete as the most conservative case. 
Though a common practice, stabilization is not necessarily a 
requirement for compliance with land disposal restrictions. If 
solidification or stabilization is not the treatment standard for a 
particular hazardous constituent, RCRA requires that the solidified 
waste form be tested to show that it meets the prescribed treatment 
standard. We request comment on whether it is reasonable to assume a 
stabilized waste form as a treatment of choice for LAMW and whether a 
rule should require waste stabilization. Such a requirement, however, 
could make the disposal of bulk low-activity waste in RCRA C landfills 
prohibitively expensive. (Bulk wastes could include such items as soil, 
demolition debris, and slag or other industrial process residuals.) 
Alternatively, it may be appropriate to have a different set of 
concentration limits for disposal of bulk wastes.
    As stated earlier, we request comment on the possibility of 
individual disposal facilities developing alternative concentration 
limits. The performance of less-common encapsulating technologies could 
be a factor in permitting such alternative calculations. However, there 
are limited data available compared to the extensive literature 
available on cement/concrete. In addition to comment, we request 
information regarding the long-term performance of encapsulating 
technologies, particularly as they pertain to radionuclides.
    Waste containers also provide a barrier against radionuclide 
releases, as well as adding structural stability to the waste form. 
Containers are typically drums or boxes, made of metal or polymer. It 
is not unusual for RCRA treatment to result in a waste form that is 
solidified inside a container (for example, mixing ash or other 
treatment residue with cement). NRC regulations require Class B and C 
LLRW to be in containers; if Class A waste is not in containers, it 
must be segregated from the waste that is in containers. We request 
comment on the need to specify container requirements in the rule.
    c. Activity Caps. As stated above, under our basic concept, wastes 
with radionuclide concentrations higher than established in the rule 
would not be eligible for disposal in the RCRA-C disposal cell. 
However, waste with higher concentrations might be acceptable if the 
total number of curies in the disposal cell remained below a certain 
level (in conjunction with or in lieu of concentration limits). This 
could mean placing limits on the total curies of radionuclides disposed 
of at a site, inventory limits on specific radionuclides, or waste 
volume limitations (as an indirect and more conservative method to 
limit activity, since not all the waste would be expected to contain 
the maximum radionuclide concentrations). Further, because modeling the 
performance of facilities over the long term involves estimates of the 
inventory of radionuclides present at site closure, limits of this type 
would help reduce uncertainty in those estimates. We request comment on 
this issue. We also request comment on how facilities could demonstrate 
compliance with such activity limits, how such demonstrations might 
relate to on-going operations at a RCRA-C facility, and the limitations 
to such an approach.
    d. Unity Rule. Overall doses to a receptor could be limited through 
a ``sum of fractions'' approach similar to the methodology used in 10 
CFR 61.55. Under this approach, a disposal facility could accept waste 
containing multiple radionuclides only if the sum of the fractions of 
the individual radionuclide concentration limits did not exceed one (or 
``unity''). For example, a disposal facility could not accept waste 
containing radionuclides X, Y, and Z at concentrations \1/2\, \1/3\, 
and \1/3\ of their individual concentration limits because \1/2\ + \1/
3\ + \1/3\  1. Concentration tables might be based on 
several methods of analysis, such as long-term performance assessment 
and worker exposure, and a simple sum of fractions approach may not be 
the most appropriate way to account for the different methods used to 
derive waste concentrations. It is also possible that peak exposures 
from different radionuclides in a long-term performance assessment may 
be separated by hundreds of years (given differences in half-life and 
environmental mobility), indicating that summing may not be appropriate 
even if the exposure mechanisms are the same. NRC derived its tables in 
10 CFR part 61 from a common analysis for all radionuclides,\14\ and 
issued separate tables for short- and long-lived radionuclides. As we 
are coordinating this effort with NRC, we request comment regarding 
alternative methods to accomplish the same goal of limiting overall 
doses.
---------------------------------------------------------------------------

    \14\ See Draft Environmental Impact Statement on 10 CFR part 61, 
NUREG-0782, Vol. 2, Section 7-2, September 1981.
---------------------------------------------------------------------------

5. Risk or Dose Basis for a LAMW Standard
    The modeling described in section II.D.3 will be designed to 
protect members of the public during the operating life of the disposal 
facility and beyond. By modeling long-term facility performance, ground 
water and future residents near the disposal facility will be 
protected. Basing radionuclide

[[Page 65137]]

concentrations in the waste on a worker exposure analysis ensures that 
people at or near the site while waste is being handled are not exposed 
to unacceptable levels of radiation (see section II.D.3.d). Also, we 
expect that exposures to people who might be at the site after the 
facility is closed would be well within acceptable public dose limits. 
The radionuclide concentrations in the mixed waste will be based on 
levels that are bounded by the risk management approach for radiation 
exposure to members of the public that EPA uses in its regulatory 
programs and NRC uses at licensed low-level waste disposal facilities. 
There are a range of possible exposure levels that could be considered 
to be consistent with EPA risk management policies. We believe setting 
dose or risk limits within these values will be appropriate for the 
disposal of mixed waste under the approach. We, in cooperation with the 
NRC, intend to select exposures that should result in concentration 
limits that will be protective for all RCRA-C facilities, should 
minimize the need for additional NRC requirements, and will help 
generators to dispose of a considerable portion of their mixed waste.
    Numerous factors will play a role in deciding what reference 
exposure levels should be used. Many of these factors reflect prior 
Federal and non-Federal risk management decisions related to 
radioactive waste management and disposal, supporting technical 
information, and risk levels applied under different statutory and 
regulatory actions. The regulatory approach selected by NRC may be an 
important factor.
    When we use the term ``risk'' in general, we are talking about 
correlating exposures to contaminants with health effects resulting 
from those exposures. Risk is often expressed as the likelihood of an 
exposure resulting in a given health effect within a population. A risk 
of 10-\4\ for example, means that a level of exposure will 
cause (on average) a health effect in one person out of a population of 
10,000. Where radiation is concerned, there are two basic ways to 
express this correlation (radiation risk focuses on cancer, either 
incidence or fatality). Radiation protection standards (including those 
issued by EPA) have traditionally been written in terms of dose (e.g., 
in millirem), which is an expression of the physical effect on body 
tissue of the energies transmitted by radiation. Dose can be translated 
to risk; however, there have been a number of different ways to 
calculate dose (see Table 1), and the correlations with risk are 
affected by the dose system used. Our current estimates are that an 
annual committed effective dose equivalent of 15 millirem (mrem), 
incurred each year for a period of 30 years, carries a lifetime risk of 
fatal cancer of approximately 3 x 10-\4\ (3 in 10,000). This 
is an ``average'' dose, and the correlation will differ for individual 
radionuclides (i.e., taking each radionuclide separately, the lifetime 
risk associated with an annual exposure of 15 mrem may be somewhat 
higher or lower than x 10-\4\). It is generally estimated 
that the average person in the United States can expect to receive an 
annual dose of about 300 mrem from natural sources, such as cosmic 
radiation, radon, and naturally occurring radionuclides in soil, rocks, 
and building materials.
    The other way to express this correlation is to calculate risk 
directly. This is the approach used by our Superfund program in 
determining cleanup levels, and applies methods developed more recently 
than the dose-to-risk correlations. The differences in risk estimates 
using the two methods can be significant for some radionuclides; 
however, in some cases the direct risk calculation is higher, in other 
cases the conversion from dose gives the higher risk. The dose-to-risk 
method is more familiar to the radiation community and consistent with 
radiation protection standards, while the direct calculation of risk is 
more consistent with the way non-radiation hazards (such as RCRA 
hazardous waste) are evaluated. We request comment on which method 
should underlie the calculation of radionuclide concentration limits in 
LAMW.
    To provide perspective, we examined risk management decisions we 
made in areas other than radiation risk. Though the RCRA corrective 
action standards do not specify radionuclides (61 FR 19432, May 1, 
1996), cleanup levels are to be determined on a site-by-site basis, 
using other promulgated standards where appropriate. Generally, EPA 
considers 10-\4\ to 10-\6\ to be the acceptable 
lifetime risk range for all contaminants. However, the preference is 
for remedies at the lower (more protective) end of the risk range; 
10-\6\ is considered a point of departure, and applying 
situation-specific factors may result in risk within the target range 
but above 10-\6\. The RCRA corrective action standards also 
are designed to be consistent with Superfund.
    In order to provide context for the reference exposure levels that 
will be used to derive the limiting radionuclide waste concentrations, 
we list current EPA and NRC radiation limits in Table 1, which are 
given in terms of dose. It is important to understand that some of 
these limits are in the ``whole body'' format, while other, more recent 
limits are in the ``effective dose'' format. Further, the ``committed'' 
effective dose (CED) explicitly accounts for internal radiation 
contributions from radionuclides remaining in the body from earlier 
intakes (the ``total'' effective dose equivalent, or TEDE, has a 
similar purpose). The dose under the ``old'' format translates into 
different doses for different radionuclides under the ``new'' format. 
The translation depends on how a particular radionuclide distributes 
itself throughout the body. Iodine, for example, preferentially 
deposits in the thyroid, which is a very small organ. Iodine's 
effective dose at the 4 mrem/year whole body or any organ Maximum 
Contaminant Level (MCL) for drinking water is less than 1 mrem/year. 
However, in an evaluation completed in December 2000, we reaffirmed 
that the radionuclide MCLs derived from a 4 mrem/yr whole body dose 
generally fall within our target lifetime risk range of 
10-\4\ to 10-\6\ when more recent risk assessment 
methods are applied (65 FR 76716, December 7, 2000).

           Table 1.--Current EPA and NRC Radiation Dose Limits
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Uranium Fuel Cycle (40 CFR 190.10(a))..  25 mrem/year whole body, 75
                                          mrem/year thyroid, mrem/year
                                          any other organ.
Generally Applicable Standard for        25 mrem/year whole body, 75
 Management and Storage of Spent          mrem/year thyroid, mrem/year
 Nuclear Fuel (SNF) and High Level        any other critical organ.
 Waste (HLW) (40 CFR 191.03).
Land Disposal of Low-Level Radioactive   25 mrem/yr whole body, 75 mrem/
 Waste (10 CFR 61.41).                    yr thyroid, 25 mrem/yr any
                                          other organ.
Decommissioning Nuclear Facilities (10   25 mrem/yr TEDE, all pathways
 CFR 20.1402).                            (unrestricted use, although
                                          use of alternative criteria
                                          may allow up to 100 mrem/yr
                                          TEDE)).
Generally Applicable Individual-Dose     15 mrem CED/year.
 Standard for Disposal of SNF and HLW
 (40 CFR 191.15).

[[Page 65138]]

 
Individual-Protection Standard for       15 mrem CEDE/year.
 Disposal of SNF and HLW at Yucca
 Mountain, NV (40 CFR 197.20).
National Emission Standards for          10 mrem EDE/year.
 Hazardous Air Pollutants (40 CFR part
 61).
SNF and HLW Disposal Limit for           4 mrem/year for manmade beta-
 Underground Sources of Drinking Water    and photonemitting
 (40 CFR 191.24, 197.30).                 radionuclides whole body or
                                          any internal organ, 15 pCi/l
                                          alpha 197.30) 5 pCi/l radium.
Maximum Contaminant Levels for           4 mrem/year for manmade beta-
 Community Drinking Water systems (40     and photonemitting
 CFR 141.16).                             radionuclides whole body or
                                          any internal organ, 15 pCi/l
                                          alpha, 5 pCi/l radium, 30
                                          micrograms/liter uranium.
------------------------------------------------------------------------

    Our analysis of our 40 CFR part 191 standard for disposal of spent 
nuclear fuel and high-level waste found that, for the radionuclides and 
conditions associated with disposal of those wastes, 15 mrem/year under 
the more recent effective dose method carries a risk roughly equivalent 
to a 25 mrem/year dose using the whole body method.\15\
---------------------------------------------------------------------------

    \15\ 58 FR 66402, December 20, 1993.
---------------------------------------------------------------------------

    As noted above, facilities licensed under 10 CFR part 61 must limit 
all-pathways exposures to the public (as calculated through long-term 
performance assessment) to 25 mrem/year (whole body), and facilities 
requesting license termination without restrictions on future site use 
must satisfy the licensing authority that doses will not exceed 25 
mrem/yr total effective dose equivalent (TEDE) from all potential 
pathways. However, in both of these situations dose assessments are 
typically well below these regulatory thresholds. In selecting a 
reference exposure that would be used to derive concentration limits 
and allow for a simpler regulatory approach, we believe it would be 
appropriate for facilities operating under such a simplified approach 
to consider doses as being at or below the level applicable to other 
types of licensed facilities.
    When compared to public exposures, there may be some additional 
flexibility in selecting a reference exposure level for the worker 
exposure scenario. For one thing, pathways such as inhalation and 
direct radiation, rather than ground water, would be expected to 
predominate. An evaluation of worker exposures will also consider the 
fact that these doses would not be to the broader public from 
radionuclides in the environment, but generally would be limited to a 
fairly small group of individuals. It may also be that workers would 
not expect to receive consistent annual exposures for a period of years 
because certain exposure scenarios might not occur regularly. 
Nevertheless, workers may be examined in the context of both maximally 
exposed members of the public and as workers under NRC exposure 
regulations (workers handling AEA material are subject to NRC 
occupational requirements even if the facility is not licensed). The 
goal is to coordinate the selection of a level that provides 
appropriate protection and will not cause NRC to require significant 
additional worker protection requirements.
    We request comment on the appropriate level of protection to use in 
our analyses (e.g., on a dose basis, 1 mrem, 10, 15, 25; on a risk 
basis, 10-\4\, 10-\5\, 10-\6\; 
lifetime or annual exposure). We would like commenters to address 
whether the same level(s) should apply to all analyses, or whether 
specific types of modeling (e.g., long-term performance or worker 
protection) should be based on different exposures, and if so, why. 
Would it depend on when the exposures would occur? The predominant 
pathways? Who the exposed person would be?
    On a related issue, some of the radionuclides we examine may also 
have toxic effects separate from their radioactive properties. Many of 
these elements, such as lead, have already been evaluated within the 
RCRA framework. Others have not. Uranium, for example, is known to have 
effects on kidney function that may be of more concern than its 
radiation effects. The drinking water MCL in Table 1 did consider these 
toxic effects. How should we address such situations? Are there other 
elements that would be of particular concern?

E. What Legal Authority Does EPA Have Under the AEA?

    The crux of our approach would be to provide an additional 
regulatory avenue for expanding the availability of mixed and other 
low-activity radioactive waste disposal options. Typically, when EPA 
establishes radiation protection standards, the statutory authority is 
the Atomic Energy Act of 1954, as amended,\16\ and Reorganization Plan 
No. 3 of 1970 (the Plan).\17\ The Plan transfers to EPA the ``functions 
of the Atomic Energy Commission (AEC) [now the NRC and the DOE] under 
the Atomic Energy Act'' to the extent that those functions consist of 
establishing ``generally applicable environmental standards for the 
protection of the general environment from radioactive material.''\18\ 
The Plan defines standards as ``limits on radiation exposures or 
levels, or concentrations or quantities of radioactive material, in the 
general environment outside the boundaries of locations under the 
control of persons possessing or using radioactive material.''\19\ The 
functions of the AEC under the AEA include the authority to ``establish 
by rule, regulation, or order, such standards and instructions to 
govern the possession and use of special nuclear material, source 
material, and byproduct material as the Commission may deem necessary 
or desirable to promote the common defense and security or to protect 
health or to minimize danger to life or property. * * * 42 U.S.C. 
2201(b). To the extent that such rulemaking activity involves the 
establishment of generally applicable environmental standards this 
authority is vested in the Administrator of the EPA.
---------------------------------------------------------------------------

    \16\ 42 U.S.C. 2011 et seq. (1994).
    \17\ Reorganization Plan No. 3 of 1970. 35 FR 15623 (1970). 
Published October 6, 1970; effective December 2, 1970. 84 Stat. 2086 
(1970) (codified at 5 U.S.C. App. 1).
    \18\ Id. at section 2(a)(6).
    \19\ Id.
---------------------------------------------------------------------------

F. What Regulatory Approaches Could NRC Take With Respect to Disposal 
of LAMW?

    NRC has provided us with general information on regulatory 
approaches it would consider for low-activity mixed waste disposal. 
These are:
1. Regulatory Approaches that Could Apply to RCRA Facilities
    [sbull] Specific License for RCRA-C Disposal Facility--In this 
case, NRC would modify its regulations to allow a RCRA-C landfill 
facility wanting to accept for disposal LAMW meeting the

[[Page 65139]]

specified conditions (e.g., radionuclide concentration limits) to apply 
for a specific NRC license under NRC regulations, such as 10 CFR part 
61. NRC would assess the protections offered by RCRA-C technology on a 
site-specific basis. NRC would retain its authority to enforce and 
inspect as in the case of all NRC licensees.
    [sbull] General License for RCRA-C Disposal Facility--In this case 
NRC would modify its regulations (e.g., 10 CFR part 61) through 
rulemaking to include RCRA-C disposal facilities as a class of 
facilities under an NRC general license that enables the facility to 
accept (``possess'') LAMW for disposal. Disposal facilities would not 
have to supply applications or paperwork to NRC for specific approval 
of a license. NRC could choose to place additional conditions or 
requirements on the disposal facility in granting a general license, or 
could defer completely to the protection offered by the RCRA-C 
requirements. An example would be that the facility meets RCRA-C 
requirements and that the LAMW accepted by the facility meets the 
concentration limits established in accordance with the approach 
presented in this ANPR. Under a general license, NRC retains its 
authority to inspect and enforce its requirements, including issuance 
of civil penalties where warranted; however, in this case, it may be 
appropriate for NRC to rely on EPA for facility oversight.
    [sbull] Exemption for RCRA-C Disposal Facility--In this case, NRC 
would modify its regulations, as appropriate, to exempt RCRA-C disposal 
facilities that accept LAMW from NRC requirements (including 
requirements to obtain an NRC or Agreement State license), and modify 
10 CFR 20.2001 to allow transfer of waste to exempted facilities. This 
would essentially be NRC deferring regulatory oversight of licensed 
material at the disposal site to a regulatory system that already has 
jurisdiction over the non-AEA portion of the waste and has demonstrated 
sufficient protectiveness for specified concentrations of 
radionuclides. Failure of a RCRA-C facility to meet the conditions of 
the exemption could lead to regulatory action by NRC. NRC would still 
maintain the ability to conduct inspections; however, in this case, it 
may be appropriate for NRC to rely on EPA for facility oversight.
2. Regulation of LAMW Generators
    NRC could modify its regulations, as appropriate, to allow the LAMW 
generator to transfer certain material to an approved RCRA-C facility 
for disposal under one of the above approaches.
    We request comment on these options.

G. How Might DOE Implement a LAMW Standard?

    DOE regulates the management of its own LLRW and the radioactive 
component of its mixed waste under the authority granted to DOE by the 
AEA. The AEA and principles of sovereign immunity limit the States' 
ability to regulate DOE's management and disposal of its own AEA 
materials, including the radioactive component of MW. Because DOE is 
``self-regulating'' under the AEA, the low-activity mixed waste 
disposal approach presented in this ANPR would not be applicable to DOE 
LAMW unless DOE takes action under its AEA authority to implement it. 
Several options for implementation are plausible. Most DOE wastes are 
disposed of in facilities at the generating site. For situations where 
sufficiently protective on-site disposal is not feasible, costs are 
excessive, or off-site disposal is otherwise advantageous, other 
disposal alternatives are considered. DOE could establish some sort of 
internal authorization process before allowing LAMW to be transported 
and disposed at a RCRA Subtitle C landfill. Alternatively, DOE could 
choose to exempt LAMW meeting the radionuclide concentrations derived 
in this approach from its AEA regulatory purview and send such waste to 
its own RCRA Subtitle C landfills or commercial Subtitle C landfills 
accepting such waste. Because of the potentially larger volumes of LAMW 
generated by DOE, stakeholder interests and concerns should be given 
consideration by DOE in determining how DOE would implement the 
approach suggested in this document.
1. DOE's ``Authorized Limits'' System
    At present, DOE has in place a process to evaluate waste on a 
``case by case'' basis to determine the radiological risk. This 
``authorized limits'' system allows DOE generating sites to provide 
waste characterization information to support disposal at non-AEA 
regulated facilities. Approvals for disposal of volumetrically 
contaminated waste (as opposed to surface contamination) are given by 
the Assistant Secretary of Environment, Safety and Health. DOE also 
seeks to ensure that releases are consistent with the receiving 
facility's waste acceptance criteria and are coordinated with, and 
acceptable to, facility operators and Federal, State, and local 
regulators. DOE's approach relies on a disposal facility's existing 
procedures to maintain protectiveness, and typically does not place 
additional radiation protection requirements on the facility operator. 
The rule could provide a more uniform basis for allowing such disposal. 
Because DOE is self-regulating under the AEA, the rule would not limit 
DOE's ability to dispose, at facilities not regulated by NRC or 
Agreement States, wastes that have been evaluated on a ``case by case'' 
basis pursuant to DOE's existing ``authorized limits'' process.
    DOE manages its operations through a series of directives, 
including Orders (which describe basic requirements), Manuals (more 
detailed procedures), and Guides (recommendations or ``best 
practices''). The ``authorized limits'' process described above is 
included in DOE's Order 5400.5, ``Radiation Protection of the Public 
and the Environment'' (note that the ``authorized limits'' decisions 
are handled through the radiation protection program, not the waste 
management program). Adopting the approach presented in this ANPR would 
probably require DOE to revise one or more of its directives.
2. DOE's Radiological Control Criteria
    For several years, DOE has been developing an approach similar to 
the disposal concept in today's action. DOE has been modeling exposures 
from treatment, transportation, and disposal to assess the feasibility 
of setting uniform limits that would allow certain mixed waste meeting 
established activity limits to be handled solely within the RCRA 
system. DOE believes its analyses show that a significant portion of 
its mixed waste could be handled without presenting a significant 
radiological risk, and believes that the approach presented here has 
the potential to facilitate that process. Throughout the development of 
this process, DOE has sought advice and review from Federal agencies 
and State regulators, and kept them apprised of its progress and 
intent.

H. How Would States Implement the Standard?

1. Would States Be Required To Implement the Standard?
    Even if we and NRC both take regulatory action to allow LAMW 
disposal, it is likely that much of the actual implementation will 
occur at the State level. Many States are authorized to carry out both 
AEA regulatory functions and RCRA programs. There are 32 NRC Agreement 
States and 45 States are authorized under RCRA to carry out a mixed 
waste program. Under section 274b of the Atomic Energy Act,

[[Page 65140]]

States can enter into agreements with the NRC such that the NRC 
relinquishes Federal authority and the Agreement States assume 
regulatory responsibility over certain byproduct, source, and small 
quantities of special nuclear material under State laws. The degree of 
compatibility for such programs is determined by NRC. (NRC also retains 
certain functions, such as licensing and oversight of nuclear power 
plants.) NRC also reviews Agreement State programs for continued 
adequacy to protect public health and safety and compatibility with 
NRC's regulatory programs. We understand that State programs will have 
to evaluate carefully this approach and any implementing regulations 
issued by the NRC as they would apply to specific hazardous waste 
disposal facilities. We also understand that some States have statutory 
restrictions on disposal of radionuclides with hazardous waste, and 
that others may be otherwise opposed to allowing such disposal. 
However, many States already allow disposal of waste with very low 
radionuclide concentrations in RCRA Subtitle C or D landfills on a 
case-by-case basis. The approach that we are presenting in this ANPR 
would not affect NRC's or the States' authority under the AEA to make 
such individual decisions for mixed waste under their purview. However, 
identifying acceptable concentrations of radionuclides in LAMW (and/or 
low-activity radioactive waste in general) in cooperation with the NRC, 
should allow a more consistent approach supported by rigorous technical 
analyses while providing a regulatory framework to ensure that disposal 
of LAMW/LARW in hazardous waste landfills is protective of human health 
and the environment.
    Previous discussions with State regulators have raised a number of 
important questions that we believe all States should consider, 
including:
    [sbull] Whether a disposal facility's RCRA permit would need 
revision;
    [sbull] How even reduced dual regulation would affect the disposal 
facility's day-to-day operation (assuming NRC and/or DOE opt to exert 
some authority over the disposal facility);
    [sbull] How corrective actions would be addressed;
    [sbull] To what extent public input should be sought; and
    [sbull] Whether the State should consider further limits on the 
facilities or the waste.
    Our authority is limited and our standard may not resolve all such 
issues. Changing the regulatory system for mixed waste disposal 
requires action from both Federal and State authorities to provide a 
workable, protective, and comprehensive institutional framework. We 
recommend that States consider how they might use their distinct 
authorities to assist in developing such a framework. We welcome 
comment from States that would facilitate a workable approach to a 
meaningful standard incorporating radionuclide concentrations in the 
waste. We are also interested in knowing whether States believe such a 
standard should allow the flexibility to dispose of higher 
concentrations if disposal facilities implement additional radiation 
protection provisions or demonstrate site-specific conditions 
particularly favorable for containment and isolation of radionuclides.
2. State Programs
    a. Facility Permitting/Public Participation. Although we believe 
that the technical approach to low-activity mixed waste disposal is 
sound, we recognize that we are considering disposal of radionuclides 
in facilities that were not sited or permitted with the expectation 
that they would receive significant quantities of such material. We 
anticipate that States will view the facility's RCRA permit as one 
means to ensure the State retains the level of RCRA oversight it 
believes necessary, although legal considerations suggest that the 
ability to use a RCRA permit as a vehicle to implement provisions 
related to AEA material would be limited. We also believe that public 
participation in the States' adoption of this proposed approach to LAMW 
disposal is necessary. In general, we believe that the existing RCRA 
permitting and NRC or Agreement State regulatory processes should 
provide ample opportunity for public involvement. We request comment on 
this assumption.
    If EPA decides to conduct a rulemaking, public participation will 
necessarily be part of that process. In addition, when a RCRA permit is 
modified, the extent of the modification determines the amount of 
public participation required. For example, if a facility wants to 
accept a completely new waste stream for disposal (that is, a 
fundamentally different kind of waste), this is a significant permit 
modification requiring certain public participation activities. 
However, adding additional constituents to the ground-water protection 
program is less significant because it may not by itself represent a 
change in the way the facility operates or the waste it handles. Again, 
there would be legal considerations involved in addressing AEA material 
through the RCRA permit.
    We anticipate that NRC might choose from a variety of alternatives, 
described in section F, to implement the approach described in this 
ANPR. NRC will conduct a rulemaking with public participation to 
establish the manner in which it will implement the approach presented 
here.
    We are interested in public comment on the issue of public 
participation, and how the States' adoption process would provide an 
opportunity for public participation.
    b. Implementation at the Disposal Facility. Although a RCRA-C 
disposal facility that accepts low-activity mixed waste under the 
approach presented here may have to modify its operations, we are 
optimistic that these modifications will not have to be extensive or 
costly. The facility certainly may need to instruct its workers on the 
potential effects and proper handling of radioactive material and take 
steps to limit exposures, although it may not have to apply a full 
radiation worker program that includes dosimetry. Most facility 
requirements related to radionuclides likely will be extensions of the 
administrative, recordkeeping, environmental monitoring, and reporting 
requirements already involved in hazardous waste disposal. We expect to 
model a fairly conservative worker exposure scenario, in part, to keep 
additional requirements minimal. We expect that NRC will address during 
its rulemaking process the issue of the appropriate level of worker 
training and procedures needed, if any, to limit exposures to LAMW.
    The one major aspect of the facility's operation that may need 
significant modification is waste acceptance. Because the LAMW disposal 
concept is based on the radionuclide content of the waste, the facility 
must be able to verify that the waste accepted for disposal complies 
with the rule. This situation is analogous to the current requirement 
that hazardous waste comply with the land disposal restrictions in 40 
CFR part 268. In that case, both the generator and treatment facility 
must certify that the waste does or does not meet the standards in part 
268, and attach any supporting information, including waste analysis. 
Before it can dispose of waste, the disposal facility must have the 
appropriate certifications and supporting information, and must make 
certain that the waste accepted for disposal indeed meets the RCRA land 
disposal restrictions.
    At present, generators of low-level radioactive waste are required 
to certify, before disposal, the radiological content of their LLRW. 
Generators of LLRW frequently base their characterizations

[[Page 65141]]

on process knowledge when workers' exposure to radiation is of concern 
and knowledge of the waste generating process allows adequate 
characterization of radionuclide activity. It is common practice to 
store waste for a period that allows short-lived radionuclides to decay 
to minimal levels. The most common types of treatment for LLRW are 
solidification or compaction of dry waste. A treatment facility may 
simply calculate radionuclide concentrations based on the extent of 
volume increase or decrease. Disposal facilities commonly use hand-held 
instruments to survey the exterior of waste containers, which may 
provide sufficient information to characterize the waste; however, 
packages are not normally opened for sampling in order to limit 
occupational exposures. This is in keeping with good health physics 
practice.
    Under the approach presented here, RCRA-permitted hazardous waste 
disposal facilities will continue to ensure that mixed waste complies 
with the land disposal restrictions. If the generator sending LAMW for 
disposal at a RCRA-permitted hazardous waste facility is required to 
certify compliance with applicable regulatory requirements, it may or 
may not be necessary for a landfill to conduct independent radiological 
sampling. The cost associated with extensive radiological sampling and 
analyses might be a critical factor in a disposal facility's 
willingness to accept LAMW. Facilities also may perform external 
radiological surveys to maintain worker safety, if necessary or deemed 
appropriate. We expect that under the approach presented here, the 
waste generator would bear primary responsibility for compliance with 
the standards, including those under RCRA. The generator would thus be 
responsible for providing the information necessary to determine 
whether the waste can be disposed of as LAMW at the hazardous waste 
disposal facility. It might be necessary for the generator to provide 
analytical confirmation of the radiological content of the waste prior 
to treatment or disposal. We invite comment on the most appropriate way 
to ensure that radionuclide concentrations in waste sent for disposal 
comply with the criteria that would be established, and on whether 
practices common at RCRA facilities might need modification to limit 
potential exposures to workers.
    In a related question, we would like commenters to consider whether 
a rule should address volume averaging or ``blending'' of wastes to 
meet the radionuclide concentrations. RCRA regulations prohibit 
dilution as a means of meeting treatment standards; however, assuming 
that LAMW has met the RCRA standards, to what extent should higher-
activity waste be allowed to combine with lower-activity waste to meet 
radionuclide concentration limits? Recently, NRC raised a similar 
question as part of a rulemaking effort for 10 CFR 40.51(e). (See 67 FR 
55175, August 28, 2002.) Should this be permitted for waste from 
similar processes, or with the same radionuclides or RCRA waste codes? 
This question may be more important in the context of other low-
activity radioactive wastes that are not RCRA hazardous, which are 
discussed in section III. For example, TENORM wastes can be high in 
volume with significant variation in radionuclide content, and usually 
a narrow range of radionuclides. Should blending be allowed for these 
waste streams? Would ``post-blending'' analytical results be necessary 
to demonstrate compliance with concentration limits, or would knowledge 
of ``pre-blending'' concentrations be sufficient? What would be the 
problems associated with analyzing blended waste?
    c. Agreement States. Under section 274b of the Atomic Energy Act, 
States can enter into agreements with the NRC such that the NRC 
relinquishes Federal authority and the Agreement States assume 
regulatory responsibility over certain byproduct, source, and small 
quantities of special nuclear material under State laws. The degree of 
compatibility for such programs is determined by NRC. (NRC also retains 
certain functions, such as licensing and oversight of nuclear power 
plants.) NRC has established requirements for specific program elements 
which States must meet. These compatibility requirements consider 
trans-boundary issues and program element effects on public health and 
safety. Depending on the outcome of the NRC rulemaking and the degree 
of compatibility required for State programs, a LAMW rule could be 
implemented differently among Agreement States.
    d. Non-Agreement States. In States that have not entered into 
agreements with NRC under section 2746 of the AEA, NRC regulations 
apply directly. Approximately one-third of the States are not Agreement 
States.
3. Regional Low-Level Radioactive Waste Compacts
    The Low-Level Radioactive Waste Policy Act authorizes and 
encourages States to form regional ``compacts'' to address their long-
term disposal needs for ``commercial'' low-level radioactive waste. 
Most compacts do not plan to accept mixed waste. In general, the terms 
of a compact spell out the process for selecting a ``host'' State; 
picking an appropriate site for the disposal facility; and funding site 
selection, construction, and operation. The ultimate purpose of the 
compact is to ensure that its member States are self-sufficient and 
able to manage commercial LLRW generated within the compact. At 
present, there are ten compacts, encompassing 44 States. Six States 
remain unaffiliated with any compact. Only the Northwest Compact has an 
operational waste disposal site, in Richland, WA. The Rocky Mountain 
Compact may use the Northwest Compact site by agreement. The Barnwell 
site in South Carolina will remain open to States outside the Atlantic 
Compact for several more years.\20\ Some compacts have delayed their 
siting process, and at least one compact and several unaffiliated 
States apparently have no intention of siting disposal facilities. To 
date the siting of new compact facilities has had very limited success. 
A number of compact host States, including California, Illinois, 
Nebraska, Texas, and North Carolina, have expended large amounts of 
time and money, and undergone a great deal of sensitive political 
debate, without yet establishing new disposal sites. Regional compacts 
have procedures to allow waste to enter and exit the compact, which 
could influence the disposal of low-activity mixed waste at RCRA 
facilities. Compacts may determine that it is necessary to approve RCRA 
facilities that accept LAMW as ``regional'' disposal facilities. The 
limited number of compacts with LLRW disposal facilities has lessened 
the impact of these ``cross-boundary'' issues thus far. We request 
comment on how the approach would impact regional low-level waste 
compacts.
---------------------------------------------------------------------------

    \20\ Barnwell may accept waste from outside the Atlantic Compact 
(South Carolina, Connecticut, and New Jersey) as long as the non-
regional waste does not cause the facility to exceed overall volume 
limits. Those overall volumes drop from 160,000 cubic feet in fiscal 
year 2001, the year after South Carolina joined the Atlantic 
Compact, to 35,000 cubic feet in fiscal year 2008. Under current 
plans, generators outside the Atlantic Compact will not have access 
to Barnwell after 2008.
---------------------------------------------------------------------------

I. Request for Information: LAMW

    In order to assist us in planning and conducting our future 
deliberations related to low-activity mixed waste, we are requesting 
the voluntary submission of data describing the present situation with 
respect to the storage, management, transportation, and disposal of 
LAMW. We are aware that some States perform annual inventories of the 
different kinds of radioactive waste generated or disposed annually

[[Page 65142]]

and any data relating to LAMW is welcome. We are also aware of numerous 
generators that store, rather than dispose, LAMW because of the 
regulatory and economic difficulties associated with disposal. We would 
welcome data from a variety of generators on these matters to obtain a 
more accurate picture of the present issues associated with storing and 
disposing of LAMW. We would also welcome comment and information from 
the perspective of companies that operate low-level radioactive waste 
disposal facilities or RCRA Subtitle C hazardous waste landfills.
    We realize that there are quite a number of different generators of 
LAMW, such as
    [sbull] Industrial-manufacturing facilities
    [sbull] Industrial-research and development facilities
    [sbull] Other industrial facilities
    [sbull] Academic institutions
    [sbull] Medical facilities (hospitals and colleges)
    [sbull] Medical research facilities
    [sbull] Federal facilities
    [sbull] Nuclear power plants and associated fuel cycle facilities
    To supplement and update currently available data, we are 
requesting the following types of information (information with clearly 
labeled units is appreciated):
    [sbull] LAMW Generation, Treatment, and Disposal: For individual 
waste types or categories of waste, current low-activity mixed waste 
generation rates and storage, treatment, and disposal practices. Data 
on types of mixed waste generated, RCRA codes, radionuclide 
concentrations, storage and treatment techniques, and disposal 
practices for these waste types or categories of waste, and data on 
waste volumes before and after treatment would be very useful and 
informative. In terms of waste concentrations, information that 
describes the amount of waste within different concentration ranges 
would be most useful and would assist in gauging the potential 
usefulness of a standard aimed at LAMW.
    [sbull] LAMW Cost Data: The costs associated with the management of 
LAMW, including storage costs, costs of sampling and analysis for 
compliance with RCRA vs AEA requirements. This could include the costs 
for meeting the universal treatment standards, pre-treatment and 
treatment costs (by method), packaging and transport costs, disposal 
costs, and reporting and recordkeeping costs. To the extent the costs 
can be broken out for meeting RCRA vs AEA requirements, greater 
understanding of the regulatory burden posed by each authority would 
follow.
    [sbull] Impacts of Actions to Facilitate Disposal: We also request 
comments regarding the potential effects of a standard to facilitate 
the disposal of LAMW. If such a standard were in place today, and such 
waste could be disposed in a RCRA Subtitle C landfill with little, or 
no, further NRC requirements, would such a standard enhance the conduct 
of your business? For example, would it free up resources that could be 
better directed? Would research or manufacturing activities be 
facilitated, knowing that a potentially more cost-effective disposal 
method became available for a certain kind of waste? What impacts, if 
any, would there be on the choice of health care options? What factors 
(e.g., economic, regulatory) would influence your decision to dispose 
of or accept LAMW for disposal under such a standard? Would limiting a 
standard to commercial RCRA-C facilities be an important consideration? 
How might this affect DOE disposal policies? How do disposal facilities 
view the need for a permit modification or AEA license?

J. Background Information Regarding LAMW

    In 1976, RCRA authorized us to regulate hazardous waste from 
``cradle to grave.'' This includes the minimization, generation, 
transportation, treatment, storage, and disposal of hazardous waste. 
The definition of solid waste in the RCRA legislation specifically 
excludes source, special nuclear, or byproduct material as defined by 
the AEA of 1954, as amended. In the 1984 Hazardous and Solid Waste 
Amendments to RCRA, Congress established land disposal restrictions 
(LDR) for hazardous waste and directed us to establish treatment 
standards for hazardous waste. Hazardous waste has been prohibited from 
land disposal unless treated to our established standards in 40 CFR 
part 268.
    Mixed waste is regulated under multiple authorities: by RCRA, as 
implemented by us or authorized States for hazardous waste components; 
and by the AEA of 1954, as amended, for radiological components as 
implemented by either the DOE (for radioactive waste subject to DOE's 
AEA authority), or the NRC or its Agreement States (for all other mixed 
waste). DOE is responsible for the disposal of, but does not regulate, 
commercial Greater-than-Class C mixed waste. Under the AEA, EPA has the 
authority to issue certain generally applicable environmental 
standards.
    Low-activity mixed waste is a special class of mixed waste. It may 
be viewed as waste that meets the definition of hazardous waste under 
RCRA and, under AEA, is LLRW containing ``low'' radionuclide 
concentrations. In this context, ``low'' concentrations are 
concentrations no higher than Class A LLRW, as defined in 10 CFR 
61.55.\21\
---------------------------------------------------------------------------

    \21\ Note that LLRW is defined by exclusion, that is, by what it 
is not. For example, the Low-Level Radioactive Waste Policy Act of 
1980 defines LLRW as radioactive material that is not high-level 
radioactive waste, transuranic waste, spent nuclear fuel, or 
byproduct material as defined in section 11e.(2) of the AEA (i.e., 
uranium or thorium mill tailings).
---------------------------------------------------------------------------

1. Commercial LAMW
    The radioactive component of mixed waste, and by extension, LAMW is 
regulated by either the Nuclear Regulatory Commission and the Agreement 
States (for commercial facilities) or the DOE (for DOE's energy and 
defense related activities). Commercially-generated (i.e., non-DOE) 
LAMW is produced across the country, at nuclear power plants, fuel 
cycle facilities, pharmaceutical companies, medical and research 
laboratories, universities, and other facilities. Processes such as 
medical diagnostic testing and research, pharmaceutical and 
biotechnology development, and generation of nuclear power result in 
some mixed waste. The last comprehensive evaluation of mixed waste was 
published in a 1992, known as the joint EPA and NRC ``National Profile 
on Commercially Generated Low-Level Radioactive Mixed Waste'' (NUREG/CR 
5938). Accordingly, 3,950 cubic meters of low-level radioactive mixed 
waste was generated in the United States in 1990, while another 2,120 
cubic meters were in storage. Of the 3,950 cubic meters generated in 
1990, about 72% were liquid scintillation counting fluids, 17% were 
other organics and aqueous liquids, 3% were metals, and 8% were 
``other'' waste. Approximately 3000 small volume generators were 
storing mixed waste. A report published by DOE in 1995 revisited the 
issue of mixed waste. Using the data from the ``National Profile,'' 
this report examined the variety of options available for managing 
commercially-generated mixed waste and reached the following 
conclusions (``Mixed Waste Management Options: 1995 Update,'' DOE/LLW-
219):
    [sbull] Most, but not all, mixed waste can be treated by 
commercially available technology.
    [sbull] Approximately 128 cubic meters per year of commercially 
generated waste volumes would require disposal

[[Page 65143]]

in a jointly regulated mixed waste disposal facility.
    More recent information reported in our advance notice of proposed 
rulemaking regarding increased flexibility in RCRA regulations for 
storing mixed low-level radioactive waste (64 FR 10064, March 1, 1999) 
confirms the continued storage of mixed waste due to lack of treatment 
and reasonable disposal options. In particular, the Electric Power 
Research Institute documented such problems for certain mixed waste 
from nuclear power plants. EPA visits to nuclear power plants, 
hospitals, and universities in 1998 found small amounts of mixed waste 
with no commercially available treatment technologies, and our 
discussions with the American Chemical Society and the International 
Isotope Society further highlighted the difficulty of treating and/or 
disposing of certain mixed waste.
2. DOE LAMW
    The DOE also continues to generate mixed waste (and therefore 
LAMW). In fact, DOE has a legacy of environmental and process wastes 
that require disposal. For many decades, many DOE sites did not dispose 
of their waste streams in a timely manner, allowing these wastes to 
accumulate in storage. DOE has indicated that continued indefinite 
storage of such wastes is unacceptable; however, continued storage in 
many cases was deemed necessary because appropriate treatment methods 
were not available. The Federal Facilities Compliance Act of 1992 
recognized this situation and directed DOE to develop plans and 
timetables for treatment and disposal of mixed waste at its sites. DOE 
determined that it was necessary to conduct a programmatic review of 
waste management activities throughout the DOE complex. As a result, 
DOE has reviewed its options for managing of different categories of 
radioactive waste, including LLRW and MLLW. (See the ``Final Waste 
Management Programmatic Environmental Impact Statement (WM PEIS),'' 
DOE/EIS-0200F, May 1997.)
    The WM PEIS evaluated various options for managing and disposing of 
MLLW and identified preferred alternatives, narrowing the list of sites 
that would be capable of treating or disposing of MLLW. In evaluating 
the role of the various DOE sites within each option, the following 
criteria were applied to the sites in question (WM PEIS Summary, Table 
1.6-1):
    [sbull] Consistency
    [sbull] Cost
    [sbull] Cumulative impact
    [sbull] DOE mission
    [sbull] Economic dislocation
    [sbull] Environmental impact
    [sbull] Equity
    [sbull] Human health risk
    [sbull] Implementation flexibility
    [sbull] Mitigation
    [sbull] Regulatory compliance
    [sbull] Regulatory risk
    [sbull] Site mission
    [sbull] Transportation
    DOE worked with affected States, stakeholders, and Tribal Nations 
to provide input towards qualitative criteria such as equity and 
stakeholder acceptance.
    On February 18, 2000, DOE announced its record of decision 
regarding the treatment and disposal of MLLW. Accordingly, MLLW will be 
treated on a regional basis at the Hanford Site, the Idaho National 
Engineering and Environmental Laboratory, the Oak Ridge Reservation, 
the Savannah River Site, or on-site; MLLW will be disposed at the 
Hanford Site and the Nevada Test Site. (See ``Record of Decision for 
the Department of Energy's Waste Management Program: Treatment and 
Disposal of Low-Level Waste and Mixed Low-Level Waste; Amendment of the 
Record of Decision for the Nevada Test Site,'' 65 FR 10061, February 
25, 2000.) DOE has indicated that 43,000 cubic meters of MLLW from 
waste management operations will require off-site disposal, considering 
both waste in storage and waste to be generated over the next 20 years. 
While the above referenced record of decision did not address the use 
of commercial disposal facilities, DOE's decision does not preclude use 
of commercial treatment or disposal facilities for DOE's MLLW. DOE has 
estimated that approximately 22,000 cubic meters of MLLW from waste 
management operations may be considered for commercial disposal 
facilities. In addition, 53,000 cubic meters of MLLW from environmental 
restoration activities may be considered for commercial disposal 
facilities. Significant additional volumes of MLLW may also be 
generated from future cleanup activities. There is no breakdown of how 
much of this waste may be ``low activity'' MLLW. (See ``Information 
Package on Pending Low-Level Waste and Mixed Low-Level Waste Disposal 
Decisions to be made under the Final Waste Management Programmatic 
Environmental Impact Statement,'' U.S. Department of Energy, September 
1998.)

K. Questions for Public Comment: Disposal Concept for LAMW

    We request public comment on a number of aspects related to this 
action. In addition to the questions raised earlier in this action, the 
questions below generally highlight areas in which there is a lack of 
information or there are a variety of approaches that may prove viable. 
You are not limited to responding to the specific questions below; as 
always, you are welcome to comment on any aspect of this document or 
questions raised earlier in the text. In particular, we ask:
    1. Is our description of the problems associated with mixed waste 
accurate? For example, what is the present status regarding the ability 
to dispose of low-activity mixed waste in a protective and cost-
effective manner? Are some generators, such as medical or other 
researchers, using less current practices to avoid generating mixed 
waste? (section II.B.1)
    2. What new information is available concerning the 
characteristics, treatment, storage, and disposal of LAMW? (II.A.1)
    3. Is the approach we have outlined to allow disposal of LAMW in 
RCRA-C facilities viable? Would it help to alleviate generators' 
concerns?
    4. What roles should EPA and NRC take in further developing this 
approach? Are there other actions that can be taken to minimize dual 
regulation or facilitate permanent disposal of LAMW? (II.A.3)
    5. Are radionuclide concentration limits adequate for limiting the 
impacts from LAMW?
    6. What concentration limits would address a significant proportion 
of your mixed waste? (II.A.1)
    7. Should any rule or guidance apply only to commercial RCRA-C 
disposal facilities (roughly 20 operating)? To privately-owned 
facilities? To DOE facilities? (II.B.1)
    8. Should a rule address disposal of low-activity material in RCRA-
D (solid waste) facilities? (II.A.2)
    9. Should such a rule apply to DOE wastes? Are there special issues 
associated with DOE waste (e.g., characterization, knowledge of 
historic generating processes, volumes)? (II.G)
    10. What additional requirements would be necessary for RCRA 
facilities (e.g., related to post-closure care, land ownership, 
financial assurance, monitoring and corrective action)? (II.C.4)
    11. Are the exposure scenarios we have outlined adequate? Is there 
a method other than modeling that could effectively determine the 
protectiveness of RCRA-C disposal of LAMW? (II.D.3.a, b)
    12. What is the appropriate way to select site data for modeling? 
What level

[[Page 65144]]

of conservatism is appropriate? (II.D.3.b.i)
    13. Should disposal facility operators have the opportunity to 
calculate site-specific radionuclide concentration limits? For mobile 
radionuclides only? Based on specific practices to protect workers? 
(II.D.3.b.i, H.1)
    14. What is the appropriate way to assess long-term protection? Is 
dose the appropriate measure? Is risk? Based on annual or lifetime 
exposures? What about radionuclide concentrations in the environment 
(as a basis for modeling)? (II.D.5)
    15. What is the appropriate level of protection to derive waste 
concentrations (in terms of risk or dose)? Should the same level apply 
to all exposure scenarios? (II.D.5)
    16. Should such a standard have different waste concentration 
limits for ``dry'' sites versus ``wet'' sites? What criteria should we 
use to differentiate between ``wet'' and ``dry'' sites? Is there 
another generic way to distinguish ``better'' sites? (II.D.3.b.ii)
    17. Should we establish minimum site suitability requirements? What 
should they be? How would your suggested requirements make LAMW 
disposal more protective? (II.D.3.b.ii)
    18. What is the appropriate timeframe for modeling? (II.D.3.b.iii)
    19. How should we evaluate a post-closure disturbance of the 
disposal site? (II.D.3.f)
    20. To what extent should bulk waste be included in this approach? 
As a generator, is bulk waste a significant proportion of your waste? 
(II.D.3.d)
    21. Should such a rule require a specific waste form, such as 
solidified/stabilized? Should different standards apply to different 
waste forms, or should a generator be able to demonstrate the 
performance of a particular waste form? Should containers be required? 
Should there be special conditions for bulk waste? (II.D.4.b)
    22. What types of solidification/stabilization would be most 
effective at containing radionuclides? What are the relative costs of 
these methods? (II.D.4.b)
    23. Is the Class A maximum an appropriate additional control on 
radionuclide concentrations? What other methods might we use? 
(II.D.4.a)
    24. Should a curie or volume limit apply to each disposal facility, 
in addition to radionuclide concentration limits? To each disposal 
cell? To individual radionuclides? An overall limit, or an annual 
limit? (II.D.4.c)
    25. Is the ``unity rule'' an appropriate method to limit exposures? 
Under what circumstances might it not be appropriate? How else might we 
achieve the same goal? (II.D.4.d)
    26. How should the chemical toxicity of radionuclides, particularly 
those elements not addressed by RCRA regulations (e.g., uranium), be 
considered in developing waste concentrations? (II.D.5)
    27. What regulatory approach should NRC take? Are there particular 
advantages or disadvantages to each? What aspects of LAMW disposal need 
special consideration? (II.F)
    28. How would States and facilities implement the rule? What 
concerns would States need to have addressed? (II.H)
    29. RCRA requires ground-water monitoring for hazardous 
constituents. How should ground-water protection be addressed for 
radionuclides?
    30. What factors would States, generators, and disposal facilities 
consider in supporting or opposing (choosing not to use) a standard for 
LAMW disposal? How would you characterize your interest in this 
approach? What would increase or decrease your interest?
    31. Is it appropriate for the generator to be responsible for 
documenting compliance with waste form requirements? What is the best 
way to ensure that radionuclide concentrations in waste comply with a 
standard? How might disposal facility sampling procedures need to be 
modified? (II.C.2, H.2.b)
    32. What level of public participation is appropriate? (II.H.2.a)
    33. Should volume averaging or ``blending'' be allowed? Under what 
conditions? (II.H.2.b)
    34. How will LAMW disposal facilities be affected by the regional 
low-level waste compacts? (II.H.3)
    35. Do you anticipate cost savings if the approach in this document 
were to be implemented? Where would you expect to see cost savings?

III. Is It Feasible To Dispose Other Low-Activity Radioactive Wastes 
(LARW) in Hazardous Waste Landfills?

    Aside from low-activity mixed waste, there are a variety of other 
wastes with ``low'' concentrations of radionuclides, which are either 
unregulated or are subject to an inconsistent or uncertain regulatory 
framework. While some of these other low activity wastes may be mixed 
waste, we are widening the scope of consideration here to include both 
mixed and non-mixed waste within each of these categories. Wastes 
included in this category are residuals from the processing of uranium 
or thorium ore that NRC has determined are not subject to the Uranium 
Mill Tailings Radiation Control Act of 1978 (UMTRCA) (we refer to these 
residuals in this document as ``pre-UMTRCA byproduct material,'' much 
of which is subject to remediation under the Formerly Utilized Sites 
Remedial Action Program (FUSRAP)), certain categories of 
Technologically Enhanced Naturally Occurring Radioactive Materials 
(TENORM) wastes, and Atomic Energy Act (AEA) radioactive waste 
presently exempted from regulation.

A. How Would the Proposed Disposal Concept Apply to Other Low-Activity 
Radioactive Wastes?

1. From a Technological Perspective
    The RCRA-C technology itself offers no barriers to extending the 
disposal concept to other low-activity radioactive wastes. There is no 
physical difference between a radionuclide in low-activity mixed waste 
and the same radionuclide in pre-UMTRCA byproduct material or TENORM 
waste. It may in fact be easier to assess the protectiveness of the 
landfill technology for pre-UMTRCA byproduct material or TENORM wastes, 
as they will contain a much narrower range of radionuclides (primarily 
uranium, thorium, and radium, with daughter products), and lesser 
amounts of other components that could have an effect on the physical 
and chemical behavior of the radionuclides in the disposal system, than 
will LAMW. Waste form and volume issues may be more important for these 
other low-activity waste streams in assessing their behavior in the 
disposal system. From a safety perspective, the RCRA-C disposal system 
should be no less effective for these other waste streams than for 
LAMW.
2. Pre-UMTRCA Byproduct Material
    The Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) 
explicitly extended AEA jurisdiction to waste from the processing of 
uranium or thorium ore (``byproduct material'' newly defined in section 
11e.(2) of the AEA) and designated NRC to regulate this material at 
active processing sites (see section III.D, ``Background Information 
Regarding Other LARW'' for more detail). ``Pre-UMTRCA'' byproduct 
material is physically and chemically very similar to 11e.(2) byproduct 
material regulated by NRC pursuant to its responsibilities under 
UMTRCA. Pre-UMTRCA byproduct materials are residuals from ore 
processing activities mixed with soil or residual contaminants of 
building debris. They comprise the majority of the material being 
remediated from commercial and

[[Page 65145]]

residential properties under the Formerly Utilized Sites Remedial 
Action Program (FUSRAP) and are also found at some Superfund sites. 
Pre-UMTRCA material has generally been disposed in bulk and shipped by 
rail car to licensed or permitted disposal facilities. Most is 
relatively low-activity, because it resulted from the extraction of 
uranium or thorium from ore material. It has been disposed of at a 
limited number of RCRA Subtitle C disposal facilities having State 
permits that allow acceptance of low concentrations of certain 
radioactive materials (equating generally to ``unimportant quantities'' 
as defined by NRC). Materials with concentrations exceeding State RCRA 
permit conditions have been disposed in NRC or Agreement State licensed 
facilities.
3. TENORM
    ``Technologically Enhanced'' Naturally Occurring Radioactive 
Material is material (whether as a waste or product) in which the 
natural radioactivity has been concentrated or the potential to expose 
humans has been increased, generally through human activity (TENORM 
does not include material in its natural setting, such as soil or rocks 
that emit ``background'' radiation). TENORM waste can take a variety of 
forms, including soil, pipe scale, sludges from water treatment, and 
residues from processing of mineral ores. As the name suggests, some 
TENORM wastes are highly radioactive because the processes that produce 
them tend to concentrate the radionuclides. A number of RCRA Subtitle C 
disposal facilities accept certain types of TENORM waste (e.g., 
commercial facilities in California, Idaho, and Texas). Only wastes 
that meet the radionuclide concentration limits derived for the RCRA-C 
disposal option described here would be candidates for disposal under 
that approach. Higher-concentration TENORM wastes would not be 
included.
4. Low-Activity LLRW/Source Material Exempted by NRC
    Some wastes under the AEA are exempted from regulation. In 
particular, NRC deferred ``unimportant quantities'' of source material 
containing less than 0.05 % by weight uranium or thorium, from its 
regulation. Certain consumer products and some mining wastes may 
contain uranium or thorium originating from ores not meeting the 0.05% 
criterion. For example, zircon contains minute quantities of uranium 
and thorium and is used as a glaze for ceramics and metal molds. 
Thorium is used to make a more dense glass for prescription glasses. 
Uranium or thorium may be a side product emanating from certain 
phosphate extraction operations or rare earth mining.
    Low-level radioactive waste that is not mixed waste currently has 
several disposal options, as noted in section II.H.3 above. However, 
generators have limited access to one of those facilities, and access 
to another facility will be limited in a few years. It might be 
advantageous to provide additional disposal options for low-activity 
LLRW that may not require the extensive radiation controls of 10 CFR 
part 61.
    As previously noted, NRC held a workshop on May 21-22, 2003, to 
discuss alternatives for safely controlling solid materials that have 
no, or very small amounts of, radioactivity. One alternative for that 
material is placement in a RCRA Subtitle C or RCRA Subtitle D disposal 
facility. Therefore, some of the issues discussed in that workshop may 
be similar to some of the approaches discussed in this ANPR. Background 
materials (including the information collection efforts conducted by 
NRC) and current activities (including recent documents issued and 
plans for stakeholder input), as well as transcripts of the workshop, 
can be found at http://ruleforum.llnl.gov/cgi-bin/rulemake?source=SM_RFC&st=ipcr.

B. What Legal and Regulatory Issues Might Affect Applying the RCRA-C 
Disposal Concept to Other Low-Activity Radioactive Wastes?

1. Lack of Federal Regulation
    As noted above, we believe it is reasonable, given the similarity 
in radiological characteristics and general similarity in physical 
attributes (i.e., large volume), to evaluate the applicability of our 
low-activity mixed waste disposal concept to these other low-activity 
radioactive wastes. To the extent that such a regulation could cover a 
large percentage of low-activity pre-UMTRCA byproduct material and 
TENORM wastes, clarity and consistency in regulation would be achieved 
for wastes now addressed by a patchwork of regulations. Some of these 
waste streams are not currently regulated by Federal agencies (with the 
exception of FUSRAP or other waste generated from CERCLA site cleanups, 
where the Record of Decision specifies acceptable disposal), and there 
is no uniform State approach to regulating these wastes. Unfortunately, 
it is not clear at this time what single Federal authority might be 
invoked. For example, NRC has stated that pre-UMTRCA byproduct material 
and TENORM wastes do not fall under the purview of NRC's AEA authority. 
(See, e.g., ``Issuance of Director's Decision Under 10 CFR 2.206,'' 65 
FR 79909, December 20, 2000.) The logical implication of NRC's position 
is that the exclusion of ``source, special nuclear, and by-product 
material as defined by the Atomic Energy Act of 1954'' from the 
definition of ``solid waste'' under RCRA does not apply to pre-UMTRCA 
byproduct material that does not otherwise contain source material or 
would otherwise fall within NRC's AEA authority (i.e., pre-UMTRCA 
byproduct material would be identical to TENORM in that regard). (See 
40 CFR 261.4(a)(4).) Thus, EPA could perhaps use its RCRA authority to 
address these waste streams. However, while these wastes likely fall 
under RCRA jurisdiction by virtue of being ``solid waste'' (if not 
subject to AEA), there is no clear mechanism to regulate them under 
Subtitle C. There is no RCRA characteristic for radioactivity, and many 
mineral processing wastes are specifically excluded from regulation as 
hazardous (40 CFR 261.4(b), ``solid wastes which are not hazardous 
wastes''). While non-hazardous waste can be disposed of in Subtitle C 
facilities, disposal standards associated with non-RCRA hazardous 
properties of the waste (in this case, radioactivity) would generally 
be the purview of State authorities.
2. How They Are Regulated Now
    a. Pre-UMTRCA Byproduct Material (FUSRAP). Because concerns over 
disposal of pre-UMTRCA byproduct material have been most closely 
associated with FUSRAP, we are focusing our attention on that program. 
FUSRAP was created to evaluate and remediate wastes generated as a 
result of activities of the Manhattan Engineer District and the Atomic 
Energy Commission beginning in the 1940s through the 1960s. These 
activities were related to the development of nuclear weapons. These 
wastes were first managed by the Atomic Energy Commission, then, in 
1975 by the Energy Research and Development Administration, until 1997 
by the Department of Energy, and since 1997 by the U.S. Army Corps of 
Engineers (USACE). USACE now manages such waste under CERCLA and 
internal guidance directives.
    There has been some discussion of the legal authority under which 
such wastes should be managed. (See ``Corps of Engineers'' Progress in 
Cleaning Up 22 Nuclear Sites,'' GAO/RCED-99-48,

[[Page 65146]]

February 1999.) Following transfer of FUSRAP to the Corps of Engineers, 
USACE requested a determination from NRC regarding the regulatory 
requirements for off-site disposal of waste generated through site 
cleanups. NRC determined that the largest-volume waste stream at FUSRAP 
sites, wastes that resulted from the extraction of uranium or thorium 
from ore material, was outside its jurisdiction because of the 
circumstances under which it was generated (pre-UMTRCA). NRC was later 
petitioned to review its position (February 24 and March 13, 2000). NRC 
reaffirmed its position in a 2000 Director's Decision (65 FR 79909, 
December 20, 2000). As a result, the off-site disposal of the bulk of 
waste from FUSRAP cleanups is unregulated at the Federal level except 
through the Superfund program (although USACE uses the CERCLA process 
at all FUSRAP sites, relatively few of the sites have actually been 
placed on the National Priorities List).
    The Corps of Engineers has pursued a disposal program that includes 
use of RCRA Subtitle C facilities for its low-activity waste, with 
higher-activity waste sent to AEA-licensed facilities. Under USACE 
policies applicable to FUSRAP, appropriate State authorities are 
requested to verify approval of acceptance of FUSRAP materials prior to 
disposal. States have varied in their responses to USACE's disposal 
efforts, with some being receptive to RCRA facilities accepting waste 
and others opposing it. USACE plans to continue using Subtitle C 
facilities as a disposal option.
    b. TENORM. Many TENORM wastes are also relatively low-activity. 
Many of these wastes are regulated by States. Wastes with similar 
radiological characteristics may be managed more or less rigorously 
from State to State. Some wastes are regulated primarily for chemically 
hazardous components. Some wastes are not regulated with regard to 
their radioactive content. Of course, in many instances, there is a 
lack of information on the radiological characterization of a given 
TENORM waste and undoubtedly, this has contributed to today's 
inconsistent regulatory framework. Examples of TENORM wastes include 
sludges and resins resulting from treating ground water for drinking 
water, scales and sludges arising from oil and gas production, 
tailings, slag, or residues from the mining and processing of a variety 
of ores, and the overburden remaining from the mining of uranium ores 
to name a few. (Uranium mines are not covered under the AEA. Rather, 
airborne radon emissions from underground uranium mines are addressed 
under the Clean Air Act. (See subpart B of 40 CFR part 61, 54 FR 51654, 
December 15, 1989.)) Ideally, wastes of similar characteristics 
presenting similar risks might be managed in a similar fashion.
    Although these wastes include a wide variety of waste categories, 
some delineated by more or less clear institutional boundaries, there 
are some common traits that may allow the development of a common 
strategy for management and disposal. Many of these wastes include 
radioactive uranium and thorium, and/or the daughters of the 
radioactive isotopes of uranium or thorium, respectively. Many of the 
wastes are in bulk form, whether it be tailings, or sludge, or residues 
that might infer a similar management strategy, given a similar range 
in volumes. We welcome comment on appropriate risk-based strategies to 
manage and dispose of reasonably similar wastes in a similar manner. 
For example, would it be better to focus on wastes that are relatively 
well-controlled but may be somewhat higher in activity, such as 
drinking water treatment residues, or on larger volume wastes, such as 
soils, that have the potential for wider dispersal in the environment 
and subsequent exposures to the public? Which wastes are most difficult 
to manage? Which pose the greatest risks?
3. Existing Federal Regulations (Low-Activity LLRW)
    From the perspective of the Atomic Energy Act, low-activity mixed 
waste is regulated identically to other forms of low-level radioactive 
waste. Some LAMW may be identical in radiological characteristics to 
low-activity LLRW. Logically, it is difficult to argue that the 
presence of additional hazards (i.e., chemically hazardous material) 
makes the RCRA-C technology suitable for LAMW but unsuitable for non-
mixed low-activity LLRW. However, there are currently several 
commercially operating disposal facilities capable of accepting low-
activity LLRW (though generators will have limited access to two of the 
three commercial facilities), and the need for additional disposal 
options is not clear at this time. Nevertheless, we request comment on 
whether our rule should address non-mixed low-activity LLRW (these 
wastes would be subject to the same restrictions placed on LAMW in 
deriving concentration limits, such as using the Class A maximum values 
as an upper benchmark).
4. Potential for a New ``Class'' of Disposal Facilities
    While we and NRC agree that RCRA Subtitle C landfills could offer 
appropriate protections for disposal of low concentrations of 
radionuclides, neither agency intends at this time to create a new 
regulatory structure comparable to the existing RCRA or LLRW 
requirements. Rather, the intent is to apply the necessary elements of 
radiation protection to the hazardous waste framework. In dealing with 
low-activity mixed waste, we believe this approach is sensible, as 
individuals disposing of mixed waste must comply with the requirements 
for both hazardous and low-level radioactive waste. Further, compared 
to the volume of materials disposed of in RCRA facilities, LAMW volumes 
are relatively small, even when considering DOE LAMW, so disposal 
capacity should not be excessively given over to LAMW. However, in 
extending this approach to pre-UMTRCA byproduct material, TENORM, or 
non-mixed low-activity LLRW (including that from DOE), we must 
recognize the potentially large volumes of waste that could be accepted 
at Subtitle C facilities. It is possible that facilities would apply to 
be sited and permitted under Subtitle C based on the prospect of taking 
low-activity waste that is not regulated under Subtitle C (or subject 
to RCRA at all), but may in fact be predominantly AEA material. This 
would not necessarily be inappropriate, since the intent is to 
demonstrate that the Subtitle C technology would be adequately 
protective in such a situation, but we believe it important to 
acknowledge the possibility. We request comment on this issue, and how 
we might alleviate any concerns.

C. Request for Information: Other LARW

    To assist us in understanding the present situation regarding Pre-
UMTRCA byproduct material, TENORM wastes, and other low activity 
radioactive wastes we request information to clearly understand the 
present regulatory framework associated with each waste and to provide 
more complete waste characterization. Information on these wastes has 
been produced by industry, States, Federal agencies, and academic 
institutions and it is important to garner up to date information to 
better guide our deliberations for future efforts. Along these lines, 
we welcome the following types of information:
    [sbull] Regulatory Requirements: What are the significant 
regulatory requirements applicable to the waste in question? We 
recognize that a given waste might be

[[Page 65147]]

covered under regulations issued by various levels of government 
(Federal, State, local) and may vary among jurisdictions (i.e., from 
State to State).
    [sbull] Waste Generation, Treatment, and Disposal: For individual 
waste types or categories of waste, we request current waste generation 
rates and storage, treatment, and disposal practices. Data on types of 
waste generated, RCRA codes, radionuclide concentrations, storage and 
treatment techniques, and disposal practices for these waste types or 
categories of waste, and data on waste volumes before and after 
treatment would be very useful and informative. In terms of waste 
concentrations, information that portrays the amount of waste within 
different concentration ranges would be most useful.
    [sbull] Cost Data: The costs associated with the management and 
disposal of the waste in question: This could include storage costs, 
costs of sampling and analysis for compliance with regulatory 
requirements, the costs for meeting treatment standards, pre-treatment 
and treatment costs (by method), packaging and transport costs, 
disposal costs, and reporting and recordkeeping costs.

D. Background Information Regarding Other LARW

1. Pre-UMTRCA Byproduct Material (and FUSRAP)
    The processing of ores to extract uranium or thorium (milling) 
generates large volumes of waste material (tailings). These tailings 
resemble fine, sandy soil and are generally relatively low in activity 
because the primary source of radioactivity has been reduced. However, 
because of the large volumes generated, if they are not properly 
controlled, these materials can present a long-term hazard to human 
health and the environment. In addition, the milling process can 
introduce chemical hazards into the waste. The Uranium Mill Tailings 
Radiation Control Act of 1978 (UMTRCA) was passed to address management 
of tailings (11e.(2) byproduct material) and remediation of milling and 
tailings storage sites. These responsibilities were divided between DOE 
(for inactive sites) and NRC (for active sites). EPA was directed by 
UMTRCA to establish radiation protection standards to be implemented by 
DOE and NRC. These standards are found at 40 CFR part 192 (``Health and 
Environmental Protection Standards for Uranium and Thorium Mill 
Tailings'').
    The Formerly Utilized Sites Remedial Action Program (FUSRAP) was 
established as a program under the former Atomic Energy Commission in 
1974. The original objective of this program was to identify, 
investigate, and take appropriate cleanup action at contaminated sites 
associated with the nation's early atomic weapons program. During the 
1940s through the 1960s, the Manhattan Engineer District and later, the 
Atomic Energy Commission (AEC) used a variety of sites across the 
United States to process and store uranium and thorium ores for nuclear 
weapons. In the 1970s, the AEC evaluated these old weapons production 
sites to determine the risks to human health and the environment, 
taking into account new health and environmental standards. In 1975, 
this program was transferred to the newly formed (from the AEC) Energy 
Research and Development Administration, and subsequently in 1977 to 
its successor, DOE. Of the 400 sites that were revisited, 46 required 
some type of cleanup. DOE initiated cleanups in 1979 and completed 
cleanup of roughly half of the 46 sites by 1997. DOE managed tailings 
from FUSRAP cleanups in a manner consistent with its responsibilities 
under UMTRCA, although the FUSRAP sites were not among those identified 
by UMTRCA. Late in 1997, Congress transferred responsibility for FUSRAP 
to the U.S. Army Corps of Engineers. At the request of USACE, NRC 
considered its jurisdiction over pre-UMTRCA byproduct tailings 
generated by FUSRAP cleanups. NRC determined that its jurisdiction, as 
defined by UMTRCA, did not extend to tailings generated prior to 
passage of UMTRCA if the generating process had not been licensed by 
NRC (or its predecessor, the AEC).
2. TENORM
    Numerous activities produce TENORM wastes, including mining (coal, 
metals, rare earths, and uranium), fertilizer production, oil and gas 
production, incorporation into consumer products, and treatment of 
ground water for drinking water among others. TENORM can be found in 
all 50 States. Total amounts of TENORM wastes produced in the United 
States annually may be in excess of 1 billion tons. In many cases, the 
levels of radiation are relatively low and dispersed in large volumes 
of waste. This causes a dilemma because of the high cost of disposing 
of radioactive waste in comparison with (in many cases) the relatively 
low value of the product from which the TENORM is separated. There are 
few disposal locations that can accept radioactive waste from licensed 
activities, and not many more that can take certain types of TENORM. 
Large quantities of TENORM wastes are currently undisposed and may be 
found at many of the thousands of pre-1970s abandoned mine sites and 
processing facilities around the nation. Of particular concern are the 
isotopes of uranium and thorium. Radium-226, a daughter of the decay of 
uranium-238, is troublesome because of its long half life (about 1600 
years) and its relatively high radiotoxicity. Additional detailed 
information on TENORM may be found on our Web site at http://www.epa.gov/radiation/tenorm/. EPA has developed information on the 
categories of TENORM over the last fifteen years from our own 
independent studies, various rulemakings, data provided by States, and 
studies performed by industry.
3. Low-Activity LLRW/Source Material Exempted by NRC
    Under the AEA, source material is uranium or thorium in any 
physical or chemical form. NRC has traditionally regulated source 
material if it contains one-twentieth of one percent (0.05%) or more by 
weight of uranium, thorium, or any combination of these two. Some 
mining and mineral extraction processes may also result in the 
production of uranium, or thorium, at concentrations under the NRC's 
threshold for regulation and hence, not be regulated under the AEA. 
Such low-activity source material may result from refining ores mined 
for other precious metals, rare earths, or phosphate processing. This 
low-activity source material may be regulated with regard to its 
chemical characteristics, rather than any radiological hazard 
associated with the commingled uranium or thorium. NRC has determined 
that ores containing less than 0.05% uranium or thorium by weight are 
not considered source material (10 CFR 40.4) and may be labeled as NORM 
or TENORM. AEA does not provide authority to regulate NORM or TENORM.
    As described in section II.D.4.a, NRC classifies commercially 
generated LLRW in 10 CFR 61.55 as Class A, B, C, or Greater-Than-Class 
C (GTCC). All LLRW classes must meet minimum waste characterization 
requirements specified in Sec.  61.56(a). Among these requirements, 
waste must be a solid with minimal free standing liquid, not explosive, 
pyrophoric, or capable of generating toxic gases; any hazardous, 
biological, pathogenic, or infectious waste must be treated to reduce 
to the maximum extent practicable these non-radiological hazards. 
Tables 1 and 2 of Sec.  61.55 are used to determine waste class based 
on radionuclide content. Class A waste contains the lowest

[[Page 65148]]

concentrations of short-lived and/or long-lived radionuclides. Class B 
waste contains low concentrations of long-lived radionuclides but 
larger concentrations of short-lived radionuclides; in addition to the 
requirements of Sec.  61.56(a), Class B waste must meet the stability 
requirements of Sec.  61.56(b). Class C waste contains the largest 
concentrations of long-lived radionuclides and/or short-lived 
radionuclides that are acceptable for near surface disposal, meets the 
same waste characterization requirements as Class B waste (minimum 
requirements and stability requirements), plus Class C waste requires 
additional measures to protect against inadvertent intrusion as listed 
in Sec.  61.52(a). LLRW whose concentrations exceed the highest values 
in Table 1 or Table 2 is GTCC and not generally suitable for near-
surface disposal.
    Numerous studies and surveys have shown that Class A comprises the 
largest volume of LLRW compared to Classes B, C, and GTCC. For example, 
a nationwide assessment of LLRW received at commercial disposal 
facilities revealed that 97.6% (by volume) of the LLRW disposed was 
Class A. Class B and Class C comprised only 1.5% and 0.9%, 
respectively. (``1998 State-by-State Assessment of Low-Level 
Radioactive Wastes Received at Commercial Disposal Sites,'' May 1999, 
DOE/LLW-252.) For example, the 1996 survey of LLRW shipped from 
Connecticut to disposal facilities reports that Class A contributed 
only 8.9% of the total radioactivity in LLRW disposed in 1996; in 1999, 
Class A LLRW represented only about 2% of the total activity. For the 
period 1995-1999, Class A LLRW made up about 14% of the total activity. 
(``Low-Level Radioactive Waste Management in Connecticut--1996,'' 
prepared by the Connecticut Hazardous Waste Management Service, 
December 1997; figures for 1999 can be found in the October 2000 
report.) A comprehensive analysis of the nationwide characteristics of 
commercial LLRW shipped for disposal between 1987 and 1989 indicated 
that Class A represented from 3.3% to 10.9% of the total radioactivity 
in LLRW disposed in any given year and 96.4% to 97.4% of the total 
volume in any given year. (``Characteristics of Low-Level Radioactive 
Waste Disposed During 1987 through 1989,'' NUREG-1418, December 1990.) 
Thus, while Class A LLRW may predominate the volume of waste sent to 
LLRW disposal facilities, Class A typically contributes only a small 
percentage of the total radioactivity disposed. Class A LLRW is limited 
to the lowest concentrations of short-lived and long-lived 
radionuclides in the NRC's waste classification system in 10 CFR 61.55, 
and much of the waste in Class A LLRW is incidentally contaminated 
trash. Class A LLRW with radionuclide concentrations at some fraction 
of the Class A limits, so-called low-activity LLRW may represent an 
acceptable candidate for disposal by alternative means, such as 
disposal in an RCRA Subtitle C landfill.
4. Decommissioning Wastes
    When facilities that use or process radioactive materials are 
closed, they go through a process of decontamination and 
decommissioning to reduce the amount of residual radioactivity left at 
the site. The extent and type of contamination depends on the kind of 
work done at the facility, the length of time the facility operated, 
and the operational practices employed at the facility. For example, 
facilities that processed uranium or thorium ore, such as those 
involved in FUSRAP, will have a relatively narrow range of 
radionuclides (uranium, thorium, radium, and their decay products), but 
also tend to have contaminated soils from managing the processing 
wastes. Nuclear power plants, on the other hand, typically have to 
address a much wider spectrum of radionuclides generated by the fission 
process, but much waste will primarily consist of contaminated 
equipment. Because of its widely varied operations, the scope of 
contamination at DOE facilities and sites is likely to encompass that 
found at commercial facilities. The decontamination process also 
produces waste, such as the removal of surface contamination from 
buildings using high-pressure sprays.
    Waste volumes from decommissioning vary widely. Some contaminated 
facilities lie unused for years before decommissioning, and a number of 
DOE sites are being evaluated for accelerated decommissioning 
schedules. The scope of waste from decommissioning can change during 
the process. For example, some buildings that are expected to be 
lightly contaminated, and therefore amenable to surface 
decommissioning, can be found to be more extensively contaminated, 
thereby affecting the decommissioning procedure. Similarly, soil 
contamination is often found to be more prevalent than anticipated. 
Another uncertainty at present surrounds the decommissioning of nuclear 
power plants. A few years ago, it appeared that nearly all reactors 
would be decommissioned at the end of their current licenses (a few 
have decommissioned in the past decade). Now, however, some utilities 
are pursuing license renewals. Assuming they operate to the end of the 
renewed license, that would push the major wave of decommissioning 
farther into the future.
    In addition, technological advances in either decommissioning 
practices, radioactive waste treatment, or waste disposal could 
significantly affect the volumes and characteristics of these wastes. 
While we can say with certainty that some, and possibly a large 
percentage, of these wastes would be ``low-activity,'' we have no way 
of projecting the proportion that would be mixed waste or the actual 
waste characteristics. For purposes of modeling, we request information 
that would help us describe the wastes resulting from decommissioning.

E. Questions for Public Comment: Disposal of Other LARW in Hazardous 
Waste Landfills

    1. Should a rule include pre-UMTRCA byproduct material, such as 
that generated by FUSRAP cleanups? Are there remaining public health or 
environmental concerns over management of this material? (section 
III.B.2.a)
    2. What authorities are most appropriate to regulate disposal of 
pre-UMTRCA byproduct material?
    3. Are there significant sources of pre-UMTRCA byproduct material, 
other than FUSRAP cleanups?
    4. How does pre-UMTRCA byproduct material resemble or differ from 
11e.(2) byproduct material regulated by NRC?
    5. What Federal or State authorities presently regulate TENORM? 
What Federal or State authorities might be used to regulate TENORM?
    6. What regulatory standards do State authorities apply to TENORM 
disposal? How might a rule simplify TENORM disposal?
    7. What approach to managing similar TENORM wastes is most 
appropriate? Are there particular waste streams that need immediate 
attention (based on risk or occurrence)? (III.B.2.b)
    8. Should volume averaging or ``blending'' be allowed for TENORM 
and other LARW? Under what conditions?
    9. Should a rule include low-activity LLRW that is not mixed waste? 
What about source material exempted by NRC? Under what conditions? 
(III.B.3)
    10. What issues are associated with siting new disposal facilities 
for these other LARW? How might they be alleviated? (III.B.4)

[[Page 65149]]

    11. Would there be special concerns about waste from facility 
decommissioning? Would such concerns depend on the type of facility 
being decommissioned? Are there credible projections of the volumes and 
types of waste expected to be generated when decommissioning large 
numbers of nuclear reactors? (III.D)

IV. What Non-Regulatory Approaches Might Be Effective in Managing LAMW 
and Other Low-Activity Radioactive Wastes?

    Many of the wastes just described appear to share similar physical 
and radiological characteristics. This might imply that a common 
approach, or a limited number of approaches, could effectively manage 
and dispose of such wastes. Such an approach could eliminate the need 
for separate actions addressing individual waste streams. The real 
question is to decide which approach (or approaches) may be most 
promising in terms of practicality, legal applicability, cost-
effectiveness, and risk reduction potential. In order to develop 
meaningful approaches, it is necessary to obtain the advice of 
potentially affected stakeholders. We therefore welcome comment on some 
of the possible approaches to managing and disposing of these other 
categories of low-activity waste. We also welcome advice on new or 
innovative approaches that are not described below.

A. General Discussion

    Our conceptual approach to disposal of low-activity mixed waste 
relies on regulatory actions by us and by NRC, although the envisioned 
regulatory action would be permissive (that is, it would allow actions 
not possible under the existing regulatory structure) and LAMW 
generators or disposal facilities could choose not to take advantage of 
the increased disposal flexibility. By contrast, as discussed above, 
some other low-activity wastes might not be as clearly addressed by us 
through regulatory action. However, we believe it is in the public's 
interest to address the issues presented by disposal of these other 
low-activity wastes. Therefore, we are considering how best to 
accomplish this through actions that do not involve rulemakings or 
other regulatory methods. These non-regulatory approaches may also be 
effective to some extent in addressing issues related to LAMW disposal.
1. Advantages and Disadvantages of Non-Regulatory Approaches
    A prime complaint about regulatory programs is that they are too 
prescriptive and limit the flexibility of the regulated parties in 
meeting goals. This can be true, and to some extent they also limit the 
flexibility of regulatory agencies in improving the effectiveness of 
the program, because modifying a regulatory program takes significant 
time and resources. In addition, enforcement actions, while necessary 
to maintain the integrity of the program, by their very nature often 
result in adversarial relationships with limited trust. In short, the 
burden of regulatory programs to all parties can sometimes outweigh the 
positive benefits.
    In a non-regulatory program, the regulatory agency and regulated 
community typically work more closely together to achieve a common 
goal. In many cases, the regulated parties participate in designing the 
program. Non-regulatory programs are usually less prescriptive, 
offering flexibility to participants to meet goals in the way they find 
most effective. In turn, the regulatory agency focuses less on strict 
compliance and more on technical assistance, training, guidance, and 
encouraging use of innovative technologies. The flexibility of such 
programs can make them easier to modify as found necessary. Compliance 
with regulatory requirements is still necessary, and some programs 
offer flexibility only to ``superior'' performers. Some programs 
encourage self-reporting by offering reduced penalties.
    The main concern about non-regulatory approaches is that they can 
result in a lessening of regulatory oversight. When a regulatory agency 
reduces its emphasis on inspections and enforcement, allows 
``innovative'' methods, and relies on self-reporting, there is always 
the potential for serious non-compliance with requirements and 
subsequent environmental damage. For example, offering reduced 
penalties for reporting findings of ``self-audits'' has been criticized 
as encouraging abuses.
2. Examples of Existing EPA Non-Regulatory Programs
    EPA has developed a number of programs targeted to improve 
environmental performance. ``Partners for the Environment'' is the 
collective name for voluntary programs developed by EPA Headquarters or 
regional offices. These programs primarily involve agreements between 
EPA and individual regulated entities, and focus on taking performance 
to a level beyond simple compliance with regulatory requirements (or, 
in some cases, innovative approaches may be developed that provide some 
flexibility in the strict regulatory framework to achieve overall 
goals). In that sense, it may be difficult to apply non-regulatory 
approaches where there are competing requirements (as for mixed waste) 
or inconsistent requirements (as for individual States and TENORM). We 
offer this discussion not to endorse any specific program as especially 
suited to address low-activity radioactive wastes, but to encourage 
thought and comment about innovative approaches that might be 
developed, and to provide examples of the types of efforts EPA has 
traditionally embraced. Individual EPA programs include:
    [sbull] Project XL (eXcellence and Leadership)--Project XL is a 
national pilot program that allows State and local governments, 
businesses and Federal facilities to develop with EPA innovative 
strategies to test better or more cost-effective ways of achieving 
environmental and public health protection. In exchange, EPA will issue 
regulatory, program, policy, or procedural flexibilities to conduct the 
experiment. Project XL uses eight criteria to assess potential 
projects, including producing superior environmental results, cost 
savings, or regulatory flexibility; demonstrating innovative processes; 
pollution prevention; and ability to transfer lessons or data to other 
facilities. ``Project XL for Communities'' also looks for strategies 
that provide economic opportunity and incorporate community planning. 
Project XL has approved projects related to mixed waste treatment.
    [sbull] National Environmental Performance Track--The National 
Environmental Performance Track program is a voluntary partnership 
program that recognizes and rewards businesses and public facilities 
that demonstrate strong environmental performance beyond current 
requirements. It encourages continuous environmental improvement 
through the use of environmental management systems, local community 
involvement, and measurable results. Incentives to participants include 
public recognition, low priority for routine inspections, partnerships 
with State agencies, and regulatory changes to streamline requirements. 
There are nearly 300 participants in the program.
    [sbull] Code of Environmental Management Principles (CEMP)--CEMP 
was developed in response to Executive Order 12856 (``Federal 
Compliance with Right-to-Know Laws and Pollution Prevention,'' August 
3, 1993), which called for EPA to develop an environmental challenge 
program for Federal agencies. CEMP incorporates elements of state-of-
the-art

[[Page 65150]]

environmental management systems (such as the ISO 14000 series) to 
emphasize sustainable environmental performance and an integrated view 
of environmental activities to move agencies ``beyond compliance.'' 
CEMP was reaffirmed as a basis for environmental performance and 
leadership in Executive Order 13148 (``Greening the Government Through 
Leadership in Environmental Management,'' April 21, 2000).
    [sbull] Energy Star--Energy Star was introduced by the U.S. 
Environmental Protection Agency in 1992 as a voluntary labeling program 
designed to identify and promote energy-efficient products, in order to 
reduce carbon dioxide emissions. EPA partnered with the U.S. Department 
of Energy in 1996 to promote the Energy Star label, with each agency 
taking responsibility for particular product categories. Energy Star 
has expanded to cover new homes, most of the buildings sector, 
residential heating and cooling equipment, major appliances, office 
equipment, lighting, consumer electronics, and other product areas.
3. National Academy of Sciences Studies
    Though not limited to non-regulatory considerations, two efforts of 
the National Academy of Sciences (NAS) have a bearing on our approach 
to LARW. In 1999, NAS provided a report evaluating the existing 
guidelines for exposures to TENORM. NAS concluded that different 
guidelines among regulatory agencies were primarily related to policy, 
rather than scientific or technical, judgments. (See ``Evaluation of 
Guidelines for Exposures to Technologically Enhanced Naturally 
Occurring Radioactive Materials,'' National Academy Press, 1999.) In 
addition, NAS is about to conduct a study of options for managing LARW, 
including low-level radioactive waste, TENORM, and FUSRAP wastes. NAS 
could make recommendations for statutory, regulatory, policy, or other 
actions. Financial support for this study is being provided by EPA, 
NRC, DOE, USACE, and the Southeastern Low-Level Radioactive Waste 
Compact. We believe this study will help us in developing our 
rulemaking and in identifying other non-regulatory approaches that 
might prove effective. We intend to follow this study and, with this 
action, seek the views of the general public on these matters as input 
to develop an integrated strategy for assuring the proper management of 
such diverse wastes.

B. Non-Regulatory Approaches for LAMW and Other Low-Activity 
Radioactive Wastes

1. Develop Guidance
    While establishing Federal regulations for pre-UMTRCA byproduct 
material and TENORM wastes faces certain hurdles, establishing guidance 
may achieve many of the same goals but without a complex regulatory 
framework. While guidance would not have the enforcement ``teeth'' of a 
regulation, guidance does provide a common reference point and to 
depart from such guidance risks damaged credibility for those 
industries or entities not following accepted guidance. Another 
question is what kind of guidance; Federal guidance, suggested 
guidance, joint guidance, and State guidance are all possibilities. It 
may be possible to establish Federal guidance for both pre-UMTRCA 
byproduct material and TENORM wastes but Federal guidance has 
traditionally been used to guide Federal agencies in matters related to 
radiation protection. Given that not all of this material falls under 
Federal agency purview, the usefulness of Federal guidance for pre-
UMTRCA byproduct material and TENORM may be limited. While not Federal 
guidance, strictly speaking, we have published suggested guidance for 
dealing with the radioactive residues from treating drinking water. 
(See 56 FR 33091, July 18, 1991.) Guidance in the form of ``suggested 
State regulations'' has been developed over the years for a variety of 
radiation protection issues, including TENORM, by the Conference of 
Radiation Control Program Directors (CRCPD). Whether a unified guidance 
applicable to both pre-UMTRCA byproduct material and TENORM wastes is 
possible and practical is open to question. We welcome the views of 
stakeholders on this matter. Perhaps joint State-Federal guidance would 
be appropriate to cover both pre-UMTRCA byproduct material and TENORM 
wastes.
2. Partner With Selected Stakeholders To Develop Waste-Specific ``Best 
Practices''
    An alternative approach to guidance might be a partnership between 
Federal, State, and industry representatives to establish ``best 
practices'' targeted to specific industries or waste types. Again, 
lacking the ``teeth'' of a formal regulation, a code of ``best 
practice'' creates a common reference point of accepted practice that 
brings peer pressure and public pressure on those entities failing to 
abide by such a code. Establishing such best practice that is endorsed 
and used by the industries in question may also lessen the need for 
formal regulation and result in cooperation rather than confrontation. 
It is possible that industry could establish an in-house panel of 
recognized experts and affected stakeholders that would develop, 
monitor, and facilitate the implementation of best practices by 
companies within a given industry, even allowing the use of the panel's 
code of ``best practices'' logo to companies abiding by this code. This 
might work in a manner similar to our Energy Star program, a voluntary 
program to identify and promote energy efficient products. We welcome 
views on the possible application of this approach, or other 
approaches. What wastes or specific industries could benefit most from 
this approach? How useful might the development of best practices be 
for the affected industries? What incentives exist or may be encouraged 
to promote the development and implementation of best practices?
    In an action that combines aspects of the guidance and ``best 
practices'' approaches, EPA recently issued a ``Guide for Industrial 
Waste Management'' (EPA530R-03-001). EPA joined with members of State 
governments, tribes, industry, and environmental groups to develop this 
guidance on how best to manage non-hazardous industrial solid wastes, 
which are generated in much larger volumes than municipal solid wastes. 
The Guide is intended to be a practical resource, covering engineering 
and scientific principles applicable to developing and operating waste 
management units, effective communication, risk assessment, and other 
topics. Computer models and other tools are included in the Guide, 
which is also available on CD-ROM (EPA530-C-03-002). See http://www.epa.gov/epaoswer/non-hw/industd/index.htm for more information.

C. Request for Information: Non-Regulatory Alternatives to Our Disposal 
Concept

    In general, we request information that would help us to evaluate 
whether non-regulatory approaches might be effective in addressing 
issues associated with low-activity radioactive waste management and 
disposal (see also questions in D, below). We also request information 
that would help us determine what types of non-regulatory actions would 
be most effective, how they would be developed, and who might need to 
be involved in their

[[Page 65151]]

development. We welcome information on:
    [sbull] The effectiveness of various non-regulatory programs at 
achieving their stated goals
    [sbull] The relative cost of implementing a non-regulatory vs. 
regulatory program
    [sbull] The ease of implementing a non-regulatory vs. regulatory 
program
    [sbull] Whether existing non-regulatory programs could be used to 
address LARW

D. Questions for Public Comment: Non-Regulatory Alternatives to Our 
Disposal Concept

    1. In general, do you think that a non-regulatory approach could be 
effective at addressing the problems associated with management and 
disposal of low-activity radioactive waste? Why or why not? (section 
IV)
    2. What has been your experience with EPA non-regulatory programs, 
such as those described in section IV.A.2? Which programs have been 
most effective? Why?
    3. What is your experience with non-regulatory programs at other 
Federal or State agencies?
    4. Do you see particular aspects of LARW management and disposal 
that could not be addressed outside of regulatory action? Aspects that 
would be particularly amenable to non-regulatory action?
    5. Is guidance a viable mechanism to support proper management of 
LARW? Who should develop such guidance? What topics should it cover? 
(IV.B.1)
    6. Would a ``best practices'' approach to management of LARW give 
generators and disposal facilities sufficient support to ensure proper 
management practices? Would incentives to adopt a ``code of conduct'' 
be necessary? Could such a ``code'' encompass the wide range of 
generating processes and waste characteristics? How would regulators 
view such an approach? (IV.B.2)
    7. What other non-regulatory approaches might be appropriate to 
address LARW management?

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether a regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (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:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    OMB has determined that this Advance Notice of Proposed Rulemaking 
is ``non-significant'' according to the criteria of Executive Order 
12866.

    Dated: November 4, 2003.
Marianne Lamont Horinko,
Acting Administrator.
[FR Doc. 03-28651 Filed 11-17-03; 8:45 am]
BILLING CODE 6560-50-P