[Federal Register Volume 62, Number 224 (Thursday, November 20, 1997)]
[Notices]
[Pages 62079-62094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30528]


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NUCLEAR REGULATORY COMMISSION

ENVIRONMENTAL PROTECTION AGENCY


Joint NRC/EPA Guidance on Testing Requirements for Mixed 
Radioactive and Hazardous Waste

AGENCIES: Environmental Protection Agency and Nuclear Regulatory 
Commission.

ACTION: Publication of Final Joint Guidance on the Testing Requirements 
for Mixed Waste.

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[[Page 62080]]

SUMMARY: The Nuclear Regulatory Commission (NRC) and the Environmental 
Protection Agency (EPA) are jointly publishing herein final guidance on 
the testing requirements for mixed radioactive and hazardous waste 
(mixed waste). NRC and EPA began development of this guidance in 1987 
and a draft was completed in 1989. EPA's adoption of the Toxicity 
Characteristic Leaching Procedure (TCLP) in 1990 required the agencies 
to substantially revise the guidance. The agencies issued a draft for 
public comment on March 26, 1992. A public meeting was held on April 
14, 1992, in Washington, D.C., to solicit oral comments on the draft 
guidance document. The comment period ended on May 26, 1992. NRC and 
EPA received more than 700 requests for copies of the draft guidance 
document and NRC received approximately 100 written comments from 20 
individuals and groups, including comments resulting from a review of 
the guidance by the U.S. Department of Energy. NRC and EPA staffs have 
incorporated the appropriate comments into the final guidance.
    The guidance emphasizes the use of process knowledge, whenever 
possible, to determine if a waste is hazardous as a way to avoid 
unnecessary exposures to radioactivity. The guidance also provides 
guidelines for generators wishing to rely on process knowledge as the 
basis for evaluating their waste.
    The guidance offers two strategies for helping to maintain 
radiation exposures As Low As is Reasonably Achievable (ALARA) if 
testing is required. These strategies are the use of a sample size of 
less than 100 grams, as long as the resulting test is sufficiently 
sensitive to measure the constituents of interest at the regulatory 
levels prescribed in the TCLP, and the use of surrogate materials, as 
long as they are chemically identical to the mixed waste and faithfully 
represent the hazardous constituents in the waste mixture.
    The guidance also discusses other allowable sampling and testing 
procedures, such as representative drum sampling, or sampling from 
drums containing lower concentrations of radioactive material, as long 
as the chemical contents are identical to those found in the drums with 
higher concentrations of radioactive material.

FOR FURTHER INFORMATION CONTACT: Dominick A. Orlando, Division of Waste 
Management, Office of Nuclear Material Safety and Safeguards, U.S. 
Nuclear Regulatory Commission, Washington, D.C., 20555, telephone (301) 
415-6749 or Newman Smith, Permits and State Programs Division, Office 
of Solid Waste, U.S. Environmental Protection Agency, Washington, D.C., 
20460, telephone (703) 308-8757.

    Dated at Rockville, MD and Washington, DC this 7th day of 
November, 1997.

    For the U.S. Nuclear Regulatory Commission.
Carl J. Paperiello,
Director, Office of Nuclear Material Safety and Safeguards.

    For the U.S. Environmental Protection Agency.
Elizabeth Cotsworth,
Acting Director, Office of Solid Waste.

SUPPLEMENTARY INFORMATION:

Clarification of RCRA Hazardous Waste Testing Requirements for Low-
Level Radioactive Mixed Waste--Final Guidance

    Disclaimer: The policies discussed in this document are not 
final Agency actions, but are intended solely as guidance. They are 
not intended, nor can they be relied upon, to create any rights 
enforceable by any party in litigation with the United States. The 
Environmental Protection Agency and Nuclear Regulatory Commission 
may follow the guidance, or act at variance with the guidance, based 
on an analysis of specific site circumstances. The agencies also 
reserve the right to change the guidance at any time, without public 
notice.

              Acronyms/Abbreviations Used in This Guidance              
------------------------------------------------------------------------
          Acronym/abbreviation                      Definition          
------------------------------------------------------------------------
AEA....................................  Atomic Energy Act.             
ALARA..................................  As Low As Is Reasonably        
                                          Achievable.                   
BDAT...................................  Best Demonstrated Available    
                                          Technology.                   
CFR....................................  Code of Federal Regulations.   
EP.....................................  Extraction Procedure (toxicity 
                                          test).                        
EPA....................................  Environmental Protection       
                                          Agency.                       
FR.....................................  Federal Register.              
HSWA...................................  Hazardous and Solid Waste      
                                          Amendments.                   
LDR....................................  Land Disposal Restrictions.    
NRC....................................  Nuclear Regulatory Commission. 
OSWER..................................  Office of Solid Waste and      
                                          Emergency Response.           
RCRA...................................  Resource Conservation and      
                                          Recovery Act.                 
SW-846.................................  Test Methods for Evaluating    
                                          Solid Wastes, Physical/       
                                          Chemical Methods.             
TC.....................................  Toxicity Characteristic.       
TCLP...................................  Toxicity Characteristic        
                                          Leaching Procedure.           
TSDF...................................  Treatment, Storage or Disposal 
                                          Facility.                     
WAP....................................  Waste Analysis Plan.           
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I. Background

    Mixed waste is defined as waste that contains both hazardous waste 
subject to the requirements of the Resource Conservation and Recovery 
Act (RCRA) and source, special nuclear, or by-product material subject 
to the requirements of the Atomic Energy Act (AEA).<SUP>1</SUP> This 
guidance addresses testing activities related to mixed low-level waste 
(LLW), which is a subset of mixed waste.<SUP>2</SUP> The term ``mixed 
waste,'' for the purposes of this document, will refer to mixed LLW. 
Additional information on the testing of hazardous wastes, which could 
apply to both mixed LLW and other types of mixed waste (e.g., high-
level and transuranic mixed waste), is found in Appendix A. The 
information below is intended for use by Nuclear Regulatory Commission 
(NRC) licensees that may not be familiar with the hazardous waste 
characterization and testing requirements that apply to mixed waste. 
The guidance assumes that the reader is familiar with the NRC's 
regulations and regulatory framework for the management of radioactive 
material and focuses on compliance with the Environmental Protection 
Agency's (EPA's) requirements for the management of hazardous waste. 
Although it is written for commercial mixed waste generators, the 
guidance may also be useful for Federal facilities that generate mixed 
waste.
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    \1\ See 42 U S.C. Sec. 6903 (41), added by the Federal Facility 
Compliance Act of 1992 (FFCA).
    \2\  See revised Guidance on the Definition and Identification 
of Commercial Low-Level Radioactive and Hazardous Waste and Answers 
to Anticipated Questions, October 4, 1989.
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    Users of this guidance should have a good understanding of how 
mixed waste is defined (see above), and what authority, or authorities, 
regulate mixed waste testing activities. The hazardous component of 
mixed waste is regulated by EPA in those States where EPA implements 
the entire RCRA Subtitle C hazardous waste program (i.e., unauthorized 
States). Currently, EPA regulates mixed waste in Alaska, Hawaii, Iowa, 
Puerto Rico, the Virgin Islands, and American Samoa. In most instances 
mixed waste is regulated by State governments. Thirty-nine States and 
one territory (Guam) have been delegated authority by EPA to implement 
the base RCRA hazardous waste program and to regulate mixed waste 
activities (see 51 FR 24504, July 3, 1986, and Appendix B). These 
States are referred to as ``mixed waste authorized States.'' Nine 
additional States are authorized for the RCRA base hazardous waste 
program but have not been delegated authority by EPA to

[[Page 62081]]

regulate mixed waste.<SUP>3</SUP> In these States mixed waste is not 
regulated by EPA, but may be regulated by States under the authority of 
State law. It is important that licensees contact the State hazardous 
waste agencies in authorized States to determine the specific testing, 
analysis, and other hazardous waste requirements that may apply to 
mixed waste managed in their State, because their State may have more 
stringent requirements than the Federal requirements discussed in this 
guidance.
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    \3\  The RCRA base hazardous waste program is the RCRA program 
initially made available for final authorization and includes 
Federal regulations up to July 26, 1982. However, authorized States 
have revised their programs to keep pace with Federal program 
changes that have taken place after 1982 in accordance with EPA 
regulation.
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    This guidance describes:
    (1) The current regulatory requirements for determining if a waste 
is a RCRA hazardous waste;
    (2) The role of waste knowledge for hazardous waste determinations;
    (3) The waste analysis information necessary for proper treatment, 
storage, and disposal of mixed waste; and,
    (4) The implications of the RCRA land disposal restrictions (LDRs) 
on the waste characterization and analysis requirements.
    This information should be useful for: (1) radioactive waste 
generators, who must determine if their waste is a RCRA hazardous 
waste, and therefore a mixed waste; (2) for those generators storing 
mixed waste on-site in tanks, containers or containment buildings for 
longer than 90 days, that consequently become responsible for complying 
with RCRA and NRC storage requirements; and (3) those facilities that 
accept mixed waste for off-site treatment, storage, or disposal.
    Generators and/or treatment, storage, and disposal facilities 
(TSDFs) handling wastes under RCRA must characterize their waste for 
several purposes:
    (1) To determine if their waste is a hazardous waste (40 CFR 
262.11);
    (2) To comply with general waste analysis requirements for new or 
permitted TSDFs, for TSDFs operating under interim status, and for 
certain generators that treat land disposal prohibited wastes in 40 CFR 
264.13, 265.13 and 268.7, respectively. These analysis requirements 
include:
    (a) chemical/physical analysis of a representative sample (and/or, 
in some cases, use waste knowledge (see below); and,
    (b) preparation of a waste analysis plan.
    (3) To meet the waste analysis requirements that apply to the 
specific waste management methods in 40 CFR 264.17, 264.314, 264.341, 
264.1034(d), and 268.7;
    (4) To ensure, prior to land disposal, that the restricted waste 
meets the required treatment standard (40 CFR 268.7).<SUP>4</SUP>
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    \4\ Refer to Appendix A for specific EPA regulations pertaining 
to (1)-(4).
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    This guidance addresses the need for chemical analysis of mixed 
wastes to meet these purposes. The guidance also emphasizes ways in 
which unnecessary testing of mixed waste may be avoided. This is 
important when handling mixed waste, since each sampling, workup, or 
analytical event may involve an incremental exposure to radiation. This 
guidance encourages mixed waste handlers to use waste knowledge, such 
as process knowledge, where possible, in making RCRA hazardous waste 
determinations involving mixed waste. It also encourages the 
elimination of redundant testing by off-site treatment and disposal 
facilities, where valid generator-supplied, and certified, data are 
available.
    Because mixed waste testing may pose the possibility of increased 
radiation exposures, this guidance also describes methods by which 
individuals who analyze mixed waste samples may reduce their 
occupational radiation exposure and satisfy the intent of the RCRA 
testing requirements. Testing to determine whether wastes are hazardous 
under the RCRA toxicity characteristic may pose special concerns which 
are examined in Section III of this guidance.
    All of the activities described in this guidance are subject to the 
requirements of both the AEA and RCRA. The focus of this guidance is 
the RCRA requirements. NRC and NRC Agreement State licensees are 
authorized to receive, possess, use (which includes storing, sampling, 
testing, and treating), and dispose of AEA-licensed materials. NRC 
licensees handling mixed waste should ensure that their RCRA hazardous 
waste testing activities are consistent with NRC, or Agreement State, 
regulations and license conditions. Flexibility in the RCRA 
requirements is emphasized so that the As Low As is Reasonably 
Achievable (ALARA) concept can be incorporated into the mixed waste 
testing activities.<SUP>5</SUP> If other AEA requirements, or RCRA 
requirements are difficult to meet in a specific mixed waste management 
situation, licensees should seek resolution by requesting license 
amendments, approval of modifications to their RCRA permits or interim 
status Part A applications, or resolution under both authorities.
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    \5\ ALARA, codified in 10 CFR Part 20, refers to the practice of 
maintaining all radiation exposures, to workers and the general 
public, as low as is reasonably achievable.
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    Section 1006(a) of RCRA states ``Nothing in this Act shall be 
construed to apply to (or authorize any State, interstate, or local 
authority to regulate) any activity or substance which is subject to * 
* * the Atomic Energy Act of 1954 * * * except to the extent that such 
application (or regulation) is not inconsistent with the requirements 
of such Acts.'' If a resolution cannot be achieved through the 
flexibility provided by the two regulatory frameworks, then and only 
then, should licensees seek resolution under Section 1006(a) of RCRA. 
Licensees should note that, if an inconsistency exists, relief will be 
limited to that specific RCRA requirement, and that the determination 
of an inconsistency would not relieve the licensee from all other RCRA 
requirements. Section 1006(a) and radiological hazard considerations 
are addressed more fully in Sections III and IV of this guidance. NRC 
licensees should also include the necessary flexibility in their RCRA 
permit waste analysis plans to accommodate the sampling and testing 
required to meet AEA requirements.

II. Use of Waste Knowledge for Hazardous Waste Determinations

    The use of waste knowledge by a generator and/or a TSDF to 
characterize mixed waste is recommended throughout this document to 
eliminate unnecessary or redundant waste testing. EPA interprets 
``waste knowledge'' or ``acceptable knowledge'' of a waste broadly to 
include, where appropriate:
    <bullet> ``Process knowledge'';
    <bullet> Records of analyses performed by generator or TSDF prior 
to the effective date of RCRA regulations; or,
    <bullet> A combination of the above information, supplemented with 
chemical analysis.
    Process knowledge refers to detailed information on processes that 
generate wastes subject to characterization, or to detailed information 
(e.g., waste analysis data or studies) on wastes generated from 
processes similar to that which generated the original waste. Process 
knowledge includes, for example, waste analysis data obtained by TSDFs 
from the specific generators that sent the waste off-site, and waste 
analysis data obtained by generators or TSDFs from other generators, 
TSDFs or areas within a facility that test chemically identical 
wastes.<SUP>6</SUP>
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    \6\ For a more detailed discussion on process knowledge, see 
Section 1.5 in ``Waste Analysis at Facilities That Generate, Treat, 
Store, and Dispose of Hazardous Wastes'' OSWER 9938.4-03, April 
1994.

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[[Page 62082]]

    Waste knowledge is allowed by RCRA regulations for the following 
hazardous waste characterization determinations:
    <bullet> To determine if a waste is characteristically hazardous 
(40 CFR 262.11(c)(2)) or matches a RCRA listing in 40 CFR Part 261, 
Subpart D (40 CFR 262.11(a) and (b));
    <bullet> To comply with the requirement to obtain a detailed 
chemical/physical analysis of a representative sample of the waste 
under 40 CFR 264.13(a);
    <bullet> To determine whether a hazardous waste is restricted from 
land disposal (40 CFR 268.7(a)); and,
    <bullet> To determine if a restricted waste the generator is 
managing can be land disposed without further treatment (see the 
generator certification in 40 CFR 268.7(a)(3) and information to 
support the waste knowledge determination in 40 CFR 268.7(a)(6)).
    Hazardous waste, including mixed waste, may be characterized by 
waste knowledge alone, by sampling and laboratory analysis, or a 
combination of waste knowledge, and sampling and laboratory analysis. 
The use of waste knowledge alone is appropriate for wastes that have 
physical properties that are not conducive to taking a laboratory 
sample or performing laboratory analysis. As such, the use of waste 
knowledge alone may be the most appropriate method to characterize 
mixed waste streams where increased radiation exposures are a concern. 
Mixed waste generators should contact the appropriate EPA regional 
office to determine whether they possess adequate waste knowledge to 
characterize their mixed waste.

III. Determinations by Generators That a Waste Is Hazardous

    A solid waste is a RCRA hazardous waste if it meets one of two 
conditions: (1) the waste is specifically ``listed'' in 40 CFR Part 
261, Subpart D, or; (2) the waste exhibits one of the four 
``characteristics'' identified in 40 CFR Part 261, Subpart C. These 
characteristics are:
    <bullet> Ignitability;
    <bullet> Corrosivity;
    <bullet> Reactivity; or,
    <bullet> Toxicity.

(a) Listed Hazardous Wastes

    Generators of waste containing a radioactive and solid waste 
component must establish whether the solid waste component is a RCRA 
hazardous waste. Determinations of whether a waste is a listed 
hazardous waste can be made by comparing information on the waste 
stream origin with the RCRA listings set forth in 40 CFR Part 261, 
Subpart D. These listings are separated into three major categories or 
lists, and are identified by EPA hazardous waste numbers. Most 
hazardous waste numbers are associated with a specific waste 
description, specific processes that produce wastes, or certain 
chemical compounds. For example, K103 waste is defined as ``process 
residues from aniline extraction from the production of aniline.'' A 
generator who produces such residues should know, without any sampling 
or analysis, that these wastes are ``listed'' RCRA hazardous wastes by 
examining the K103 hazardous waste description in the hazardous waste 
lists. Other hazardous waste numbers describe wastes generated from 
generic processes that are common to various industries and activities. 
These wastes are referred to as hazardous wastes from nonspecific 
sources. Radioactively contaminated spent solvents are the most likely 
mixed wastes to be nonspecific source listed wastes. For example, a 
generator using one of the F002 halogenated solvents (e.g., 
tetrachloroethylene, trichloroethylene, and chlorobenzene, etc.) to 
remove paint from a radiologically contaminated surface, can determine 
that this waste is a listed RCRA hazardous waste by examining the F002 
waste definition for the solvent type, and for a solvent mixture/blend, 
the percent solvent by volume.
    In addition to wastes that are specifically listed as hazardous, 
the ``derived from'' and ``mixture'' rules state that any solid waste 
derived from the treatment, storage, or disposal of a listed RCRA 
hazardous waste, or any solid waste mixed with a listed RCRA hazardous 
waste, respectively, is itself a listed RCRA hazardous waste until 
delisted (see 40 CFR 261.3).<SUP>7</SUP> (Note that soil and debris can 
be managed as hazardous wastes if they contain listed hazardous wastes 
or they exhibit one or more hazardous waste characteristics. See 
hazardous debris definition in 40 CFR 268.2.)
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    \7\ The ``mixture'' and ``derived-from'' rules were vacated and 
remanded due to EPA's failure to provide adequate notice and 
opportunity for comment before their 1980 promulgation, in Shell Oil 
v. EPA, No. 80-1532 (D.C. Cir. Dec. 6, 1991). At the Court's 
suggestion, EPA reinstated the ``mixture'' and ``derived-from'' 
rules as interim final until the rules are revised through new EPA 
rulemaking. The ``mixture'' and ``derived from'' rules adopted by 
those States with authorized RCRA programs were not affected by the 
court case or the subsequent reinstatement by EPA. For further 
information, see 57 FR 49278, October 30, 1992, and 60 FR 66344, 
December 21, 1995.
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    Exceptions to the ``mixture rule'' and ``derived from'' rules exist 
for certain solid wastes. For example, wastewater discharges subject to 
Clean Water Act permits, under certain circumstances, are not RCRA 
hazardous (see 40 CFR 261.3(a)(2)(iv)). Also, hazardous wastes which 
are listed solely for a characteristic identified in Subpart C of 40 
CFR Part 261 (e.g., a F003 spent solvent which is listed only because 
it is ignitable) are not considered hazardous wastes when they are 
mixed with a solid waste and the resultant mixture no longer exhibits 
any characteristic of a hazardous waste (see 40 CFR 261.3(a)(2)(iii)). 
Likewise, waste pickle liquor sludge ``derived from'' the lime 
stabilization of spent pickle liquor (e.g., K062) is not a RCRA listed 
hazardous waste, if the sludge does not exhibit a hazardous waste 
characteristic (see discussion below on characteristic hazardous 
wastes). It should be noted, however, that wastes such as F003 and K062 
must meet LDR treatment standards. Outside of the exceptions mentioned 
here and in the RCRA regulations, a hazardous waste that was generated 
via the ``mixture rule'' or the ``derived from'' rule must be delisted 
through a specific EPA petition process for the listed waste to be 
considered only a solid waste, and no longer managed as a listed 
hazardous waste under the RCRA Subtitle C system.
    When applying the mixture rule to hazardous wastes, including mixed 
wastes, generators should be aware that EPA prohibits the dilution 
(i.e., mixing) of land disposal restricted waste or treatment residuals 
as a substitute for adequate treatment (see 40 CFR 268.3). An exception 
to the prohibition is the dilution of purely corrosive, and in some 
cases, reactive, or ignitable non-toxic wastes to eliminate the 
characteristic, or the aggregation of characteristic wastes in 
(pre)treatment systems regulated under the Clean Water Act (55 FR 
22665).

(b) Characteristic Hazardous Wastes

    Hazardous characteristics are based on the physical/chemical 
properties of wastes. Thus, physical/chemical testing of waste may be 
appropriate for determining whether a waste is a characteristic 
hazardous waste. RCRA regulations, however, do not require testing. 
Rather, generators must determine whether the waste is a RCRA hazardous 
waste. Such a determination may be made based on one's knowledge of the 
materials or chemical processes that were used. EPA's regulations are 
clear on this point. 40 CFR 262.11(c) states:


[[Page 62083]]


    ``. . . if the waste is not listed [as hazardous waste] in 
Subpart D [of 40 CFR Part 261], the generator must then determine 
whether the waste is identified in Subpart C of 40 CFR Part 261 by 
either:
    (1) Testing the waste according to the methods set forth in 
Subpart C of 40 CFR Part 261, or according to an equivalent method 
approved by the Administrator under 40 CFR 260.21; or
    (2) Applying knowledge (emphasis added) of the hazardous 
characteristic of the waste in light of the materials or the 
processes used.''

    Therefore, where sufficient material or process knowledge exists, 
the generator need not test the waste to make a hazardous 
characteristic determination, although generators and subsequent 
handlers would be in violation of RCRA, if they managed hazardous waste 
erroneously classified as non-hazardous, outside of the RCRA hazardous 
waste system. For this reason, facilities wishing to minimize testing 
often assume a questionable waste is hazardous and handle it 
accordingly.
    A generator must also comply with the land disposal restriction 
regulations in 40 CFR 268 which require the generator to determine 
whether the waste is prohibited from land disposal (refer to Section V 
for a detailed discussion of these requirements).<SUP>8</SUP> With 
respect to the hazardous characteristic, and the determination as to 
whether a waste is restricted from land disposal under 40 CFR 268.7(a), 
a generator may select the option of using waste knowledge. However, if 
the waste is determined to be land disposal restricted in 40 CFR 
268.7(a), some testing will generally be required prior to land 
disposal, except where technologies are specified as the treatment 
standard. For mixed waste, EPA recommends that the frequency of such 
testing be held to a minimum, in order to avoid duplicative testing and 
repeated exposure to radiation.
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    \8\ Generators who also treat their waste are subject to the 
requirements for treatment facilities unless they treat waste in 
accumulation tanks, containers, or containment buildings, for 90 
days or less in accordance with 40 CFR 262.34(a). Treatment 
facilities must periodically test the treated waste residue from 
prohibited wastes to determine whether it meets the best 
demonstrated available technology (BDAT) treatment standards and may 
not rely on materials and process knowledge to make this 
determination (40 CFR 268.7(b)). This testing must be conducted 
according to the frequency specified in the facility's waste 
analysis plan (refer to Section IV of this guidance for a detailed 
discussion of treatment, storage, and disposal facility 
requirements).
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    In determining whether a radioactive waste is a RCRA hazardous 
waste, the generator may test a surrogate material (i.e., a chemically 
identical material with significantly less or no radioactivity) to 
determine the RCRA status of the radioactive waste. This substitution 
of a surrogate material may either partially or completely supplant the 
testing of the waste. A surrogate material, however, should only be 
used if the surrogate material faithfully represents the hazardous 
constituents of the mixed waste.<SUP>9</SUP> The following example 
discusses the use of surrogates. A generator is required to determine 
if a process waste stream containing lead (D008) exceeds the regulatory 
level of 5.0 milligrams per liter for the toxicity characteristic (40 
CFR 261.24). If this determination cannot be made based on material and 
process knowledge only, the generator would need to test the hazardous 
material. Rather than testing the radioactive waste stream, the 
generator may opt to test a surrogate or chemically identical non-
radioactive, or lower activity, radioactive waste stream generated by 
similar maintenance activities in another part of the plant. This 
substitution of materials is acceptable as long as the surrogate 
material faithfully represents the characteristics of the actual waste, 
and testing provides sufficient information for the generator to 
reasonably determine if the waste is hazardous under RCRA. Non-
radioactive or lower activity quality control samples/species and 
spiked solutions, for instance, are acceptable to minimize exposure to 
radiation from duplicative mixed waste testing.
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    \9\ This definition of surrogate should not be confused with the 
definition of surrogate for the purposes of sampling and analysis 
quality control in Section 1.1.8 of ``Evaluating Solid Waste--Volume 
IA: Laboratory Test Methods Manual Physical/Chemical Methods.''
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    As part of the hazardous waste determination, a generator must 
document test results or other data and methods that it used. 
Specifically, 40 CFR 262.40(c) states that ``a generator must keep 
records of any test results, waste analyses, or other determinations 
made in accordance with 40 CFR 262.11 for at least three years from the 
date that the waste was last sent to on-site or off-site treatment, 
storage, or disposal.'' Section V of this guidance contains information 
on record keeping requirements for land disposal restricted hazardous 
(and mixed) wastes.
    In summary, testing listed wastes to make the hazardous waste 
determination is not necessary, because most RCRA hazardous waste codes 
or listings identify specific waste streams from specific processes or 
specific categories of wastes. Testing will most often occur to 
determine if a waste exhibits a hazardous characteristic. However, 
testing is not required if a generator has sufficient knowledge about 
the waste and its physical/chemical properties to determine that it is 
non-hazardous.<SUP>10</SUP> It is recognized that certain mixed waste 
streams, such as wastes from remediation activities or wastes produced 
many years ago, may have to be identified using laboratory analysis, 
because of a lack of waste or process information on these waste 
streams. Nonetheless, hazardous waste determinations based on generator 
knowledge can be used to reduce the sampling of mixed waste and prevent 
unnecessary exposure to radioactivity. The same principle holds for a 
generator's determination that a waste is subject to the RCRA land 
disposal restrictions in 40 CFR 268.7(a).
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    \10\ Note that characteristic only wastes (which are neither 
wastewater mixtures or RCRA listed hazardous wastes when generated) 
may be treated so that they no longer exhibit any of the four 
characteristics of a hazardous waste. However, these wastes may 
still be subject to the requirements of 40 CFR Part 268, even if 
they no longer exhibit a hazardous characteristic at the point of 
land disposal. After treatment this waste must not exhibit any RCRA 
hazardous waste characteristic and must meet applicable treatment 
standards before it can be considered a non-hazardous waste (see 57 
FR 37263, August 18, 1992, and 58 FR 29869, May 24, 1993).
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IV. Testing Protocols for Characteristics

    When testing is conducted to determine whether a waste is a RCRA 
hazardous waste, there are acceptable test protocols or criteria for 
each of the four characteristics. Testing for characteristics must be 
done on a representative sample of the waste or using any applicable 
sampling methods specified in Appendix I of 40 CFR 261.<SUP>11</SUP>

    \11\ Note that hazardous and mixed waste samples analyzed for 
waste characteristics or composition, and samples undergoing 
treatability studies may be exempt from all or part of the RCRA 
regulations if they are managed in accordance with 40 CFR 261.4 (d), 
(e) or (f).
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    Ignitability--For liquid wastes, other than aqueous solutions 
containing by volume less than 24 percent alcohol, the flash point 
is to be determined by a Pensky-Martens Closed Cup Tester, using the 
test method specified in American Society of Testing and Materials 
(ASTM) Standard D-93-79 or D-93-80, or a Setaflash Closed Cup 
Tester, using the test method specified in ASTM Standard D-3278-78, 
or as determined by an equivalent test method approved by the 
Administrator under procedures set forth in 40 CFR 260.20 and 260.21 
(see ``Test Methods for Evaluating Solid Waste, Physical/Chemical 
Methods,'' 3rd Ed., as amended, EPA, OSWER, SW-846, Methods 1010 and 
1020 <SUP>12</SUP>). (Non-liquid

[[Page 62084]]

wastes, compressed gases, and oxidizers may exhibit the 
characteristic of ignitability as described in 40 CFR 261.21 (a)(2-
4).)
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    \12\ EPA incorporated by reference into the RCRA regulations (58 
FR 46040, August 31, 1993), a third edition (and its updates) of 
``Test Methods for the Evaluation of Solid Waste, Physical/Chemical 
Methods.'' The updates can be found in 60 FR 3089, January 13, 1995 
(update II), 59 FR 458, January 4, 1994 (update IIA), 60 FR 17001, 
April 4, 1995 (update IIB), and 62 FR 32452, June 13, 1996 (update 
III). Hazardous and mixed waste generators and management facilities 
should verify that the analytical method that they use to analyze 
hazardous waste has not been superseded in the third edition.
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    Corrosivity--For aqueous solutions, the pH is to be determined 
by a pH meter using either an EPA test method (i.e., SW-846, Method 
9040 or an equivalent test method approved by the Administrator 
under procedures set forth in 40 CFR 260.20 and 260.21.) For 
liquids, steel corrosion is to be determined by the test method 
specified in National Association of Corrosion Engineers (NACE) 
Standard TM-01-69 as standardized in ``Test Methods for Evaluating 
Solid Waste, Physical/Chemical Methods,'' 3rd Ed., as amended (EPA, 
OSWER, SW-846, Method 1110), or an equivalent test method approved 
by the Administrator under procedures set forth in 40 CFR 260.20 and 
260.21.
    Reactivity--There are no specified test protocols for 
reactivity. 40 CFR 261.23 defines reactive wastes to include wastes 
that have any of the following properties: (1) normally unstable and 
readily undergoes violent change without detonating; (2) reacts 
violently with water; (3) forms potentially explosive mixtures with 
water; (4) generates dangerous quantities of toxic fumes, gases, or 
vapors when mixed with water; (5) in the case of cyanide- or 
sulfide-bearing wastes, generates dangerous quantities of toxic 
fumes, gases, or vapors when exposed to acidic or alkaline 
conditions; (6) explodes when subjected to a strong initiating force 
or if heated under confinement; (7) explodes at standard temperature 
and pressure; or (8) fits within the Department of Transportation's 
forbidden explosives, Class A explosives, or Class B explosives 
classifications.<SUP>13</SUP>
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    \13\ When evaluating test protocols for explosive mixed waste, 
consideration should be given to the likelihood for dispersing 
radioactivity during detonation. Using process knowledge or a 
surrogate material would, in most instances, be appropriate for 
these wastes.
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    EPA has elected to rely on a descriptive definition for these 
reactivity properties because of inherent deficiencies associated 
with available methodologies for measuring such a varied class of 
effects, with the exception of the properties discussed in No. 5, 
above. The method used, as guidance but not required, to quantify 
the reactive cyanide and sulfide bearing wastes is provided in 
Chapter 7 of ``Test Methods for Evaluating Solid Waste, Physical/
Chemical Methods,'' 3rd Ed., as amended, EPA, OSWER, SW-846.
    Toxicity Characteristic--The test method that may be used to 
determine whether a waste exhibits the toxicity characteristic (TC) 
is the Toxicity Characteristic Leaching Procedure (TCLP), as 
described in 40 CFR Part 261, Appendix II (SW-846, Method 1311). The 
TCLP was modified and revised in 55 FR 11798, March 29, 1990. Note 
that this revised TCLP is used (in most cases) for land disposal 
restriction compliance determinations as well. Differences between 
the TCLP and the previously required Extraction Procedure (EP) 
include improved analysis of the leaching of organic compounds, the 
elimination of constant pH adjustment, the addition of a milling or 
grinding requirement for solids (waste material solids must be 
milled to particles less than 9.5 mm in size), and other more 
detailed alterations.<SUP>14</SUP> Additionally, the TC rule added 
25 organic compounds to the toxicity characteristic.

    \14\ Note that when using the TCLP, if any liquid fraction of 
the waste positively determines that hazardous constituents in the 
waste are above regulatory levels, then it is not necessary to 
analyze the remaining fractions of the waste. Extraction using the 
zero headspace extraction vessel (ZHE) is not required, furthermore, 
if the analysis of an extract obtained using a bottle extractor 
demonstrates that the concentration of a volatile compound exceeds 
the specified regulatory levels. The use of a bottle extractor, 
however, may not be used to demonstrate that the concentration of a 
volatile compound is below regulatory levels (40 CFR Part 261 
Appendix II Sections 1.3 and .4).
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    The TCLP (Method 1311) recommends the use of a minimum sample size 
of 100 grams (solid and liquid phases as described in Section 7.2). For 
mixed waste testing, sample sizes of less than 100 grams can be used, 
if the analyst can demonstrate that the test is still sufficiently 
sensitive to measure the constituents of interest at the regulatory 
levels specified in the TCLP and representative of the waste stream 
being tested. Other variances to the published testing protocols are 
permissible (under 40 CFR 260.20-21), but must be approved prior to 
implementation by EPA. Use of a sample size of less than 100 grams is 
highly recommended for mixed wastes with concentrations of 
radionuclides that may present serious radiation exposure hazards.
    Additionally, Section 1.2 of the TCLP allows the option of 
performing a ``total constituent analysis'' on a hazardous waste or 
mixed waste sample, instead of the TCLP. Section 1.2 of Method 1311 
states:

    If a total analysis of the waste demonstrated that the 
individual analytes are not present in the waste, or that they are 
present, but at such low concentrations that the appropriate 
regulatory levels could not possibly be exceeded, the TCLP need not 
be run.

    For homogenous samples, the use of total constituent analysis in 
this manner eliminates the need to grind or mill solid waste samples. 
The grinding or milling step in the TCLP has raised ALARA concerns for 
individuals who test mixed waste. The use of total constituent 
analysis, instead of the TCLP, may also minimize the generation of 
secondary mixed or radioactive waste through the use of smaller sample 
sizes and reduction, or elimination, of high dilution volume leaching 
procedures.

Flexibility in Mixed Waste Testing

    Flexibility exists in the hazardous waste regulations for 
generators, TSDFs, and mixed waste permit writers to tailor mixed waste 
sampling and analysis programs to address radiation hazards. For 
example, upon the request of a generator, a person preparing a RCRA 
permit for a TSDF has the flexibility to minimize the frequency of 
mixed waste testing by specifying a low testing frequency in a 
facility's waste analysis plan. EPA believes, as stated in 55 FR 22669, 
June 1, 1990, that ``the frequency of testing is best determined on a 
case-by-case basis by the permit writer.''
    EPA's hazardous waste regulations also allow a mixed waste facility 
the latitude to change or replace EPA's test methods (i.e., Test 
Methods for Evaluating Solid Waste (SW-846)) to address radiation 
exposure concerns. There are only fourteen sections of the hazardous 
waste regulations that require the use of specific test methods or 
appropriate methods found in SW-846 which are outlined in Appendix 
A.<SUP>15</SUP> However, any person can request EPA for an equivalent 
testing or analytical method that would replace the required EPA method 
(see 40 CFR 260.21).
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    \15\ With the exception of the fourteen areas (see Appendix D) 
where test methods are required by hazardous waste regulation, use 
of EPA's Test Methods for the Evaluation of Solid Waste (SW-846) is 
not required, and should be viewed as guidance on acceptable 
sampling and analysis methods.
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    In a recent amendment to the testing requirements, EPA added 
language to SW-846 that describes fourteen citations in the RCRA 
program (listed in Appendix A) where the use of SW-846 methods is 
mandatory (Update II, 60 FR 3089, January 13, 1995). In all other 
cases, the RCRA program functions under what we call the Performance 
Based Measurement System (PBMS) approach to monitoring. Language 
clarifying this approach was included in the final FR Notice which 
promulgated Update III (62 FR 32542, June 13, 1997) and in appropriate 
sections (Disclaimer, Preface and Overview, and Chapter 2) of SW-846. 
Under PBMS, the regulation and/or permit focus is on the question(s) to 
be answered by the monitoring, the degree of confidence (otherwise 
known as the Data Quality Objective (DQO)) or the measurement quality 
objectives (MQO) that must be achieved by the permittee to have 
demonstrated compliance, and the specific data that must be gathered 
and documented by the permittee to demonstrate that the objectives were 
actually achieved. ``Any reliable method'' may be used to demonstrate 
that one can see the analytes of concern in the matrix of

[[Page 62085]]

concern at the levels of concern. Additional reference documents on the 
characterization and testing methods are listed in Appendix C.
    NRC regulations do not describe specific testing requirements for 
wastes to determine if a waste is radioactive. However, both NRC and 
Department of Transportation regulations contain requirements 
applicable to characterizing the radioactive content of the waste 
before shipment. For example, NRC's regulations in 10 CFR 20.2006 
require that the waste manifest include, as completely as practicable, 
the radionuclide identity and quantity, and the total radioactivity. 
NRC regulations also require that generators determine the disposal 
Class of the radioactive waste, and outline waste form requirements 
that must be met before the waste is suitable for land disposal. These 
regulations are referenced in 10 CFR 20.2006, and are outlined in 
detail at 10 CFR 61.55 and 61.56. Mixed waste generators are reminded 
that both RCRA waste testing and NRC waste form requirements must be 
satisfied. Generators may also be required to amend their NRC or 
Agreement State licenses in order to perform the tests required under 
RCRA. In addition, if an NRC licensee uses an outside laboratory to 
test his or her waste, that laboratory may be required to possess an 
NRC or Agreement State license. It is the responsibility of the 
generator to determine if the outside laboratory possesses the proper 
license(s) prior to transferring the waste to the laboratory for 
testing.
    Where radioactive wastes (or wastes suspected of being radioactive) 
are involved in testing, it has been suggested that the testing 
requirements of RCRA may run counter to the aims of the AEA. The AEA 
requirements that have raised inconsistency concerns with respect to 
RCRA testing procedures include ALARA, criticality, and security. 
Neither EPA nor NRC is aware of any specific instances where RCRA 
compliance has been inconsistent with the AEA. However, both agencies 
acknowledge the potential for an inconsistency to occur.<SUP>16</SUP> A 
licensee or applicant who suspects that an inconsistency may exist 
should contact both the AEA and RCRA regulatory agencies. These 
regulatory agencies may deliberate and consult on whether there is an 
unresolvable inconsistency and, if one exists, they may attempt to 
fashion the necessary relief from the particular RCRA provision that 
gives rise to the inconsistency. However, all other RCRA regulatory 
requirements would apply. That is, such a conclusion does not relieve 
hazardous waste facility owner/operators of the responsibility to 
ensure that the mixed waste is managed in accordance with all other 
applicable RCRA regulatory requirements. Owner/operators of mixed waste 
facilities are encouraged to address and document this potential 
situation and its resolution in the RCRA facility waste analysis plan 
which must be submitted with the Part B permit application, or 
addressed in a permit modification.
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    \16\ An inconsistency occurs when compliance with one statute or 
set of regulations would necessarily cause non-compliance with the 
other. It may stem from a variety of considerations, including those 
related to occupational exposure, criticality, and other safeguards.
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    Both agencies also believe that the potential for inconsistencies 
can be reduced significantly by a better understanding of the RCRA 
requirements, a greater reliance on materials and process knowledge, 
the use of surrogate materials when possible, and the use of controlled 
atmosphere apparatuses for mixed waste testing. Where testing is 
conducted, the use of glove boxes and other controlled atmosphere 
apparatuses during the testing of the radioactive waste material 
lessens radiation exposure concerns significantly. These protective 
measures may also help to reconcile the required testing requirements 
(including milling) with concerns about maintaining exposures to 
radiation ALARA and complying with other AEA protective standards. If 
such protective measures do not exist, or do not adequately reduce 
individual exposure to radiation or address other factors of concern, 
relief may be available under Section 1006 of RCRA.

V. Determinations by Treatment, Storage, or Disposal Facility Owner/
Operators and Certain Generators to Ensure Proper Waste MaNagement

General Waste Analysis

    Owner/operators of facilities that treat, store, or dispose of 
hazardous wastes must obtain a chemical and physical analysis of a 
representative sample of the waste (see 40 CFR 264.13 for permitted 
facilities, or 40 CFR 265.13 for interim status facilities). 
<SUP>17</SUP> The purpose of this analysis is to assure that owner/
operators have sufficient information on the properties of the waste to 
be able to treat, store, or dispose of the waste in a safe and 
appropriate manner.
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    \17\ A representative sample is defined in 40 CFR 260.10 as ``a 
sample of a universe or whole (e.g., waste pile, lagoon, ground 
water) which can be expected to exhibit the average properties of 
the universe or whole.'' For further guidance see Chapter 9 of the 
EPA's testing guidance entitled Test Methods for Evaluating Solid 
Waste or SW-846.
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    The waste analysis may include data developed by the generator, and 
existing, published, or documented data on the hazardous waste or on 
hazardous waste generated from similar processes. In some instances, 
however, information supplied by the generator may not fully satisfy 
the waste analysis requirement. For example, in order to treat a 
particular waste, one may need to know not only the chemical 
composition of the waste, but also its compatibility with the 
techniques and chemical reagents used at the treatment facility. Where 
such information is not otherwise available, the owner/operator will be 
responsible for gathering relevant data on the waste in order to ensure 
its proper management.
    The analysis must be repeated only if the previous analyses are 
inaccurate or needs updating. EPA regulations at 40 CFR 264.13(a)(3) do 
require that, at a minimum, a waste must be re-analyzed if:

    (1) The owner/operator is notified, or has reason to believe, 
that the process or operation generating the waste has changed [in a 
way such that the hazardous property or characteristics of the waste 
would change]; and
    (2) For off-site facilities, when the results of the 
verification analysis indicate that the [composition or 
characteristics of the] waste does not match the accompanying 
manifest or shipping paper.

    The requirements and frequency of waste analysis for a given 
facility are described in the facility's waste analysis plan. As 
required by 40 CFR 264.13(b), the waste analysis plan must specify the 
parameters for which each hazardous waste will be analyzed; the 
rationale for selecting these parameters (i.e., how analysis for these 
parameters will provide sufficient information on the waste's 
properties); and the test methods that will be used to test for these 
parameters. The waste analysis plan also must specify the sampling 
method that will be used to obtain a representative sample of the waste 
to be analyzed; the frequency with which the initial analysis of the 
waste will be reviewed or repeated, to ensure that the analysis is 
accurate and up to date; and, for off-site facilities, the waste 
analyses to be supplied by the hazardous waste generators. Finally, the 
waste analysis plan must note any additional waste analysis 
requirements specific to the waste management method employed, such as 
the analysis of the waste feed to be burned in an incinerator.
    The appropriate parameters for each waste analysis plan are 
determined on an individual basis as part of the permit

[[Page 62086]]

application review process. To reduce the inherent hazards of sampling 
and analyzing radioactive material, and in particular, the potential 
risk to workers from exposure to radiation posed by duplicative testing 
of mixed wastes, redundant testing by the generator and off-site 
facilities should be avoided. In addition, waste analysis plans must 
include provisions to keep exposures to radiation ALARA, and 
incorporate relevant AEA-related requirements and regulations.

Analysis Required to Verify Off-site Shipments

    The owner/operator of a facility that receives mixed waste from 
off-site must inspect and, if necessary, analyze each hazardous waste 
shipment received at the facility to verify that it matches the 
identity of the waste specified on the accompanying LDR notification or 
manifest (see 40 CFR 264.13 or 265.13(c)). This testing is known as 
verification testing. Such inspections and analysis will follow 
sampling and testing procedures set forth in the facility's waste 
analysis plan, which is kept at the facility.
    It should also be emphasized that, where analysis is necessary, 
RCRA regulations do not necessarily require the analysis of every 
movement of waste received at an off-site facility. As explained above, 
the purpose of the waste analysis is to verify that the waste received 
at off-site facilities is correctly identified, and to provide enough 
information to ensure that it is properly managed by the facilities.
    For example, if a facility receives a shipment of several sealed 
drums of mixed waste, a representative sample from only one drum may be 
adequate, if the owner/operator has reason to believe that the chemical 
composition of the waste is identical in every drum. In such a case, 
the drum containing the least amount of measurable radioactivity could 
be sampled to minimize radiation exposures (variations in radioactivity 
do not necessarily suggest different chemical composition). This 
procedure also would apply to a shipment of several types of waste. If 
the owner/operator has reason to believe that the drums in the shipment 
contain different wastes, then selecting a representative sample might 
involve drawing a sample from each drum or drawing a sample from one 
drum in each ``set'' of drums containing identical wastes. Once this 
waste analysis requirement has been satisfied, routine retesting of 
later shipments would not be required if the owner/operator can 
determine that the properties of the waste he or she manages will not 
change.

Fingerprint Analysis Versus Full Scale Analysis

    Full scale analysis (i.e., detailed physical and chemical analysis) 
may be used to comply with the waste analysis plan, including 
verification of off-site shipments. However, for mixed waste, 
abbreviated analysis or ``fingerprint analysis'' may be more 
appropriate to meet general waste analysis requirements. The test 
procedure should be determined on a case-by-case basis.
    Fingerprint analysis (which may involve monitoring pH, percent 
water, and cyanide content) is particularly recommended for mixed waste 
streams with high radiation levels that are received by an off-site 
TSDF for RCRA waste manifest verification purposes. It may be 
appropriate to use full scale analysis, instead of, or after, 
fingerprint analyses, if the facility suspects that the waste was not 
accurately characterized by the generator, information provided by a 
generator is incomplete, waste is received for the first time, or the 
generator changes a process or processes that produced the waste.

Generators Who Treat LDR Prohibited Waste In Tanks, Containers or 
Containment Buildings To Meet LDR Treatment Requirements

    Hazardous waste generators may treat hazardous wastes in tanks or 
containers without obtaining a permit if the treatment is done in 
accordance with the accumulation timeframes and requirements in 40 CFR 
262.34. However, generators who treat hazardous waste (including mixed 
wastes) to meet the EPA treatment standards for land disposal 
prohibited wastes must also prepare a waste analysis plan similar to 
that prepared by TSDFs. The plan must be based on a detailed analysis 
of a representative sample of the LDR prohibited waste that will be 
treated. In addition, the plan should include all the information that 
is necessary to treat the waste, including the testing frequency (See 
40 CFR 268.7(a)(5)).

VI. Determinations Under the Land Disposal Restrictions

    Generators, as well as treatment facilities and land disposal 
facilities, that handle mixed waste may have to obtain or amend their 
radioactive materials licenses if they test or treat mixed waste under 
the LDRs. The following discussion assumes that generators and 
treatment and disposal facilities have satisfied the requirement to 
obtain, or amend, their radioactive materials licenses, as appropriate.
    Waste knowledge may also be used to satisfy certain waste 
characterization requirements imposed by the LDRs for mixed wastes. The 
Hazardous and Solid Waste Amendments (HSWA) to RCRA (P.L. 98-616), 
enacted on November 8, 1984, established the LDR program. This 
Congressionally mandated program set deadlines (RCRA Sections 3004(d)-
(g)) for EPA to evaluate all hazardous wastes and required EPA to set 
levels, or methods, of treatment which would substantially diminish the 
toxicity of the waste, or minimize the likelihood of migration of 
hazardous constituents from any RCRA waste. Beyond specified dates, 
prohibited wastes that do not meet the treatment standards before they 
are disposed of, are banned from land disposal unless they are disposed 
of in a so-called ``no-migration'' unit (i.e., a unit where the EPA 
Administrator has granted a petition which successfully demonstrated to 
a reasonable degree of certainty that there will be no migration of 
hazardous constituents from the disposal unit for as long as the wastes 
remain hazardous)(40 CFR 268.6). Certain categories of prohibited 
wastes also may be granted extensions of the effective dates of the 
land disposal prohibitions (i.e., case-by-case and national capacity 
variances (40 CFR 268.5 and Subpart C, respectively). However, these 
wastes are still restricted and, if disposed in landfills or surface 
impoundments, must be disposed of in units meeting the minimum 
technology requirements.\18\
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    \18\ A prohibited waste may not be land disposed unless it meets 
the treatment standards established by EPA. These standards are 
usually based on the performance of the BDAT. A waste that is 
subject to an extension, such as a national capacity variance, does 
not need to comply with the BDAT treatment standards, but is 
``restricted'' and if it is going to be disposed in a landfill or 
surface impoundment, it can only be disposed of in a unit that meets 
the minimum technology requirements (MTRs). An exception exists for 
interim status surface impoundments which may continue receiving 
newly identified and restricted wastes for four years from the date 
of promulgation of the listings or characteristics before being 
retrofitted to meet the MTRs (RCRA Section 3005(j)(6)), so long as 
the only hazardous wastes in the impoundment are newly identified or 
listed.
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    The requirements of the LDR program apply to generators, 
transporters, and owner/operators of hazardous waste treatment, 
storage, and disposal facilities. Not all hazardous wastes are subject 
to 40 CFR Part 268. For instance, certain wastes that are identified or 
listed after November 8, 1984, such as newly identified mineral 
processing wastes for which land disposal prohibitions or treatment 
standards have not yet been promulgated, are not regulated under 40 CFR 
Part 268.<SUP>19</SUP>
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    \19\ The treatment standards for mineral processing wastes and 
certain additional newly listed waste streams were proposed in 61 FR 
2338, January 25, 1996, and a second supplemental proposed rule 
signed April 18, 1997.

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[[Page 62087]]

Determinations by Generators

    Under 40 CFR 268.7(a), generators must determine whether their 
waste is restricted from land disposal (or determine if they are 
subject to an exemption or variance from land disposal (40 CFR 268.1)) 
by testing their waste (or a leachate of the waste developed using the 
TCLP or, in certain cases, the Extraction Procedure Toxicity Test (EP), 
or by using waste or process knowledge). If the waste exhibits the 
characteristic of ignitability (and is not in the High Total Organic 
Constituents (TOC) Ignitable Liquids Subcategory or is not treated by 
the ``CMBST'' or ``RORGS'' treatment technology in 40 CFR 268.42, Table 
1), corrosivity, reactivity and/or organic toxicity, the generator must 
also determine the underlying hazardous constituents (UHCs) in the 
waste. Two exceptions to this requirement are: (1) if these wastes are 
treated in wastewater treatment systems subject to the Clean Water Act 
(CWA) or CWA equivalent; or, (2) if they are injected into a Class I, 
non-hazardous Underground Injection Control well. A UHC is any 
constituent listed in 40 CFR 268.48, Table UTS-Universal Treatment 
Standards, with the exceptions of nickel, zinc and vanadium, which can 
reasonably be expected to be present at the point of generation of the 
hazardous waste, at a concentration above the constituent-specific UTS 
treatment standard. Determining the presence of the UHCs may be made 
based on testing or knowledge of the waste. The UHCs must meet the UTS 
before the waste may be land disposed.
    If a generator chooses to test the waste rather than use waste or 
process knowledge for hazardous waste that is not listed and exhibits a 
characteristic only, the generator must use the TCLP. The only 
exception is TC metals.
    Until the ``Phase IV'' LDR rule is promulgated in the spring of 
1998, generators who characterize their wastes as TC toxic only for 
metals may use the EP instead of the TCLP result to determine if their 
waste is land disposal restricted, because the TC wastes do not have 
final EPA treatment standards whereas, at this time, the EP metals do. 
If the EP result is negative, the waste will still be considered 
hazardous, but is not prohibited from land disposal. The TCLP generally 
yields similar results as the EP. However, in certain matrices the TCLP 
yields higher lead and arsenic concentrations than the EP. The 
rationale for using the EP instead of the TCLP for characteristic 
wastes is explained in 55 FR 3865, January 31, 1991. For further 
guidance on using the EP for the land disposal restriction 
determination, refer to the Figures 1 and 2, of this guidance.
    If a waste is found to be land disposal restricted, generators must 
determine if the waste can be land disposed without further treatment. 
A prohibited waste may be land disposed if it meets applicable 
treatment standards (whether through treatment or simply as generated), 
or is subject to a variance from the applicable standards. As explained 
above, this determination can be made either based on knowledge of the 
waste or by testing the waste, or waste leachate using the TCLP.
    Generators who determine that their listed waste meets the 
applicable treatment standards must certify to this determination and 
notify the treatment, storage, or land disposal facility that receives 
the waste (40 CFR 268.7(a)(3)). Notification to the receiving facility 
must be made with the initial shipment of waste and must include the 
following information:
    <bullet> EPA Hazardous Waste Number;
    <bullet> Certification that the waste delivered to a disposal 
facility meets the treatment standard, and that the information 
included in the notice is true, accurate, and complete;
    <bullet> Waste constituents that will be monitored for compliance 
if monitoring will not include all regulated constituents, for wastes 
F001-F005, F039, D001, D002, and D012-D043;
    <bullet> Whether the waste is a non-wastewater or wastewater;
    <bullet> The subcategory of the waste (e.g., ``D003 reactive 
cyanide''), if applicable;
    <bullet> Manifest number; and,
    <bullet> Waste analysis data (if available).
    If a generator determines that a waste that previously exhibited a 
characteristic is no longer hazardous, or is subject to an exclusion 
from the definition of hazardous waste, a one-time notification and 
certification must be place in the generator's files (40 CFR 
268.7(a)(7) or 268.9).
    Generators who determine that their waste does not meet the 
applicable treatment standards must ensure that this waste meets the 
applicable standards prior to disposal. These generators may treat (or 
store) their prohibited wastes on-site for 90 days or less in qualified 
tanks, containers (40 CFR 262.34), or containment buildings (40 CFR 
268.50), and/or send their wastes off-site for treatment.\20\ When 
prohibited listed wastes are sent off-site, generators must notify the 
treatment facility of the appropriate treatment standards (40 CFR 
268.7(a)(2)). This notification must be made with the initial shipment 
of waste and must include the following information:
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    \20\ Non-wastewater residues (e.g., slag) that result from high 
temperature metals recovery that are excluded from the definition of 
hazardous waste by meeting the conditions of 40 CFR 
261.3(c)(2)(ii)(C), and hazardous debris that is excluded from the 
definition of hazardous waste in 40 CFR 261.3(f) have reduced LDR 
notification requirements. Specifically, these wastes, and 
characteristic hazardous wastes that are rendered non-hazardous, do 
not require a notification and certification accompanying each 
shipment. Instead, they may be sent to an AEA-licensed facility with 
a one-time notification and certification sent to the EPA Region or 
authorized State.
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    <bullet> EPA Hazardous Waste Number;
    <bullet> Waste constituents that the treater will monitor if 
monitoring will not include all regulated constituents, for wastes 
F001-F005, F039, D001, D002, and D012-D043;
    <bullet> Whether the waste is a non-wastewater or wastewater;
    <bullet> The subcategory of the waste (e.g., ``D003 reactive 
cyanide''), if applicable;
    <bullet> Manifest number; and,
    <bullet> Specified information for hazardous debris.
    Generators whose wastes are subject to an exemption such as a case-
by-case extension under 40 CFR 268.5, an exemption under 40 CFR 268.6 
(a no-migration variance), or a nationwide capacity variance under 40 
CFR 268, Subpart C must also notify the land disposal facility of the 
exemption. In addition, records of all notices, certifications, 
demonstrations, waste analysis data, process knowledge determinations, 
and other documentation produced pursuant to 40 CFR Part 268 must be 
maintained by the generator for at least three years from the date when 
the initial waste shipment was sent to on-site or off-site treatment, 
storage, or disposal (40 CFR 268.7(a)(8)).

Determinations by Treaters and Disposers

    Owner/operators of treatment facilities that receive wastes that do 
not meet the treatment standards are responsible for treating the 
wastes to the applicable treatment standards or by the specified 
technology(ies). In addition, the owner/operators of treatment 
facilities must determine whether the wastes meet the applicable 
treatment standards or prohibition levels by testing:

    (1) The treatment residues, or an extract of such residues using 
the TCLP, for wastes with treatment standards expressed as 
concentrations in the waste extract (40 CFR 268.40); and.
    (2) The treated residues (not an extract of the treated 
residues) for wastes with

[[Page 62088]]

treatment standards expressed as concentrations in the waste extract 
(40 CFR 268.40).

This testing should be done at the frequency established in the 
facility's waste analysis plan. Owner/operators of treatment 
facilities, however, do not need to test the treated residues or an 
extract of the residues if the treatment standard is a specified-
technology (i.e., a technology specified in 40 CFR 268.40 or 268.45, 
Table 1.--Alternative Treatment Standards for Hazardous Debris).
    Owner/operators of land disposal facilities under the LDRs are 
responsible for ensuring that only waste meeting the treatment 
standards (i.e., wastes not prohibited from disposal or wastes that are 
subject to an exemption or variance) is land disposed. Like a treatment 
facility, a disposal facility must test a treatment residue or an 
extract of the treatment residue, except where the treatment standard 
is a specified technology.
    Owner/operators must periodically test wastes received at the 
facility for disposal (i.e., independent corroborative testing) as 
specified in the waste analysis plan to ensure the treatment has been 
successful and the waste meets EPA treatment standards, except where 
the treatment standard is expressed as a technology.\21\ The results of 
any waste analyses are placed in a TSDF's operating records along with 
a copy of all certifications and notices (40 CFR 264.73 or 40 CFR 
265.73).\22\
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    \21\ Note that verification testing is a means to verify that 
the wastes received match the waste description on the manifest, 
which is required under 40 CFR 264.13 and 40 CFR 265.13(c). The main 
objective of corroborative testing is to provide an independent 
verification that a waste meets the LDR treatment standard.
    \22\ Land disposal facilities must maintain a copy of all LDR 
notices and certifications transmitted from generators and treaters 
(40 CFR 268.7(c)).
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Mixed Waste Under the LDRs

    As clarified in the Land Disposal Restrictions rule published on 
June 1, 1990 (see EPA's ``Third Third rule,'' 55 FR 22669, June 1, 
1990), the frequency of testing, such as corroborative testing for 
treatment and disposal facilities, should be determined on a case-by-
case basis and specified in the RCRA permit. This flexibility is 
necessary because of the variability of waste types that may be 
encountered. Mixed waste is unique for its radioactive/hazardous 
composition and dual management requirements. Each sampling or 
analytical event involving mixed waste may result in an incremental 
exposure to radiation, and EPA's responsibility to protect human health 
and the environment must show due regard for minimizing this unique 
risk. These are factors which should be considered in implementing the 
flexible approach to determining testing frequency spelled out in the 
Third Third Rule language. This flexible approach encourages reduction 
in testing where there is little or no variation in the process that 
generates the waste, or in the treatment process that treats the waste, 
and an initial analysis of the waste is available. Also, the approach 
may apply to mixed wastes shipped to off-site facilities, where 
redundant testing is minimized by placing greater reliance on the 
characterization developed and certified by earlier generators and 
treatment facilities. On the other hand, where waste composition is not 
well-known, testing frequency may be increased. Waste analysis plan 
conditions in the permits of mixed waste facilities should reflect 
these principles.

Revised Treatment Standards for Solvent Wastes

    EPA promulgated revised treatment standards for wastewater and non-
wastewater spent solvent wastes (F001-F005) in 57 FR 37194, August 18, 
1992. The revision essentially converts the treatment standards for the 
organic spent solvent waste constituents (F001-F005) from TCLP based to 
total waste constituent concentration based. This conversion of the 
spent solvent treatment standards is particularly advantageous to mixed 
waste generators, since the entire waste stream or treatment residual 
must be analyzed (instead of a waste or treatment residual extract). 
This holds true for other mixed waste streams where the hazardous 
component is measured using a total waste analysis. As discussed in 
Section IV of this guidance, total constituent analysis has several 
advantages over the use of the TCLP for high activity waste streams.
    EPA and NRC are aware of potential hazards attributable to testing 
hazardous waste. Moreover, EPA and NRC recognize that the radioactive 
component of mixed waste may pose additional hazards to laboratory 
personnel, inspectors, and others who may be exposed during sampling 
and analysis. All sampling should be conducted in accordance with 
procedures that minimize exposure to radiation and ensure personnel 
safety. Further, testing should be conducted in laboratories licensed 
by NRC or the appropriate NRC Agreement State authority. EPA and NRC 
believe that a combination of common sense, modified sampling 
procedures, and cooperation between State and Federal regulatory 
agencies will minimize any hazards associated with sampling and testing 
mixed waste.

    Note: Section V, ``Determinations under the Land Disposal 
Restrictions (LDRs)'' and the following flow charts represent a 
brief summary of the Land Disposal Restriction Regulations. They are 
not meant to be a complete or detailed description of all applicable 
LDR regulations. For more information concerning the specific 
requirements, consult the Federal Registers cited in the document 
and the Code of Federal Regulations, Title 40 Parts 124, and 260 
through 271.

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Appendix A--RCRA Regulations That Require Specific EPA Test Methods

    The use of an SW-846 method is mandatory for the following nine 
Resource Conservation and Recovery Act (RCRA) applications contained 
in 40 CFR Parts 260 through 270:
    <bullet> Section 260.22(d)(1)(I)--Submission of data in support 
of petitions to exclude a waste produced at a particular facility 
(i.e., delisting petitions);
    <bullet> Section 261.22(a)(1) and (2)--Evaluations of waste 
against the corrosivity characteristic;
    <bullet> Section 261.24(a)--Leaching procedure for evaluation of 
waste against the toxicity characteristic;
    <bullet> Section 261.35(b)(2)(iii)(A)--Evaluation of rinsates 
from wood preserving cleaning processes;
    <bullet> Sections 264.190(a), 264.314(c), 265.190(a), and 
265.314(d)--Evaluation of waste to determine if free liquid is a 
component of the waste;
    <bullet> Sections 264.1034(d)(1)(iii) and 265.1034(d)(1)(iii)--
Evaluation of organic emissions from process vents;
    <bullet> Sections 264.1063(d)(2) and 265.1063(d)(2)--Evaluation 
of organic emissions from equipment leaks;
    <bullet> Section 266.106(a)--Evaluation of metals from boilers 
and furnaces;
    <bullet> Sections 266.112(b)(1) and (2)(I)--Certain analyses in 
support of exclusion from the definition of a hazardous waste for a 
residue which was derived from burning hazardous waste in boilers 
and industrial furnaces;
    <bullet> Sections 268.7(a), 268.40(a), (b), and (f), 268.41(a), 
268.43(a)--Leaching procedure for evaluation of waste to determine 
compliance with land disposal treatment standards;
    <bullet> Sections Sec. 270.19(c)(1)(iii) and (iv), and 
270.62(b)(2)(I)(C) and (D)--Analysis and approximate quantification 
of the hazardous constituents identified in the waste prior to 
conducting a trial burn in support of an application for a hazardous 
waste incineration permit; and
    <bullet> Sections 270.22(a)(2)(ii)(B) and 270.66(c)(2)(I) and 
(ii)--Analysis conducted in support of a destruction and removal 
efficiency (DRE) trial burn waiver for boilers and industrial 
furnaces burning low risk wastes, and analysis and approximate 
quantification conducted for a trial burn in support of an 
application for a permit to burn hazardous waste in a boiler and 
industrial furnace.

                       Appendix B.--States and Territories With Mixed Waste Authorization                       
                                              [As of June 30, 1997]                                             
----------------------------------------------------------------------------------------------------------------
                                                              Effective                                         
                State/territory                   FR date        date                     FR cite               
----------------------------------------------------------------------------------------------------------------
Colorado......................................     10/24/86      11/7/86  51 FR 37729.                          
Tennessee.....................................      6/12/87      8/11/87  52 FR 22443.                          
S. Carolina...................................      7/15/87      9/13/87  52 FR 26476.                          
Washington....................................      9/22/87     11/23/87  52 FR 35556                           
Georgia.......................................      7/28/88      9/26/88  53 FR 28383.                          
Nebraska......................................      10/4/88      12/3/88  53 FR 38950.                          
Kentucky......................................     10/20/88     12/19/88  53 FR 41164.                          
Utah..........................................      2/21/89       3/7/89  54 FR 7417.                           
Minnesota.....................................      4/24/89      6/23/89  54 FR 16361.                          
Ohio..........................................      6/28/89      6/30/89  54 FR 27170.                          
Guam..........................................      8/11/89     10/10/89  54 FR 32973.                          
N. Carolina...................................      9/22/89     11/21/89  54 FR 38993.                          
Michigan......................................     11/24/89     12/26/89  54 FR 48608.                          
Texas.........................................       3/1/90      3/15/90  55 FR 7318.                           
New York......................................       3/6/90       5/7/90  55 FR 7896.                           
Idaho.........................................      3/26/90       4/9/90  55 FR 11015.                          
Illinois......................................       3/1/90      4/30/90  55 FR 7320.                           
Arkansas......................................      3/27/90      5/29/90  55 FR 11192.                          
Oregon........................................      3/30/90      5/29/90  55 FR 11909.                          
Kansas........................................      4/24/90      6/25/90  55 FR 17273.                          
N. Dakota.....................................      6/25/90      8/24/90  55 FR 25836.                          
New Mexico....................................      7/11/90      7/25/90  55 FR 28397.                          
Oklahoma......................................      9/26/90     11/27/90  55 FR 39274.                          
Connecticut...................................     12/17/90     12/31/90  55 FR 51707.                          
Florida.......................................     12/14/90      2/12/91  55 FR 51416.                          
Mississippi...................................      3/29/91      5/28/91  56 FR 13079.                          
S. Dakota.....................................      4/17/91      6/17/91  56 FR 15503.                          
Indiana.......................................      7/30/91      9/30/91  56 FR 41959.                          
Louisiana.....................................      8/26/91     10/26/91  56 FR 41959.                          
Wisconsin.....................................      4/24/92      4/24/92  57 FR 15092.                          
Nevada........................................      4/29/92      6/29/92  57 FR 18083.                          
California....................................      7/23/92       8/1/92  57 FR 32725.                          
Arizona.......................................     11/23/92      1/22/93  57 FR 54932.                          
Missouri......................................      1/11/93      3/12/93  58 FR 3497.                           
Alabama.......................................      3/17/93      5/17/93  58 FR 14319.                          
Vermont.......................................       6/7/93       8/6/93  58 FR 31911.                          
Montana.......................................      1/19/94      3/21/94  59 FR 2752.                           
New Hampshire.................................     11/14/94      1/13/95  59 FR 56397.                          
Wyoming.......................................     10/04/95     10/18/95  60 FR 51925.                          
Delaware......................................       8/8/96      10/7/96  61 FR 41345.                          
    Total: 39 States and 1 Territory.                                                                           
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Appendix C: Testing Reference Documents

    The following references provide information on approved methods 
for testing hazardous waste samples:

American Public Health Association, Standard Methods for the 
Examination of Water and Wastewater, 17th Edition. 1989. Available 
from the Water Pollution Control Federation, Washington, D.C., 
<SUP><greek-i></SUP>S0037.
U.S. Environmental Protection Agency, Design and Development of a 
Hazardous Waste Reactivity Testing Protocol. EPA Document No. 600/2-
84-057, February 1984.
U.S. Environmental Protection Agency, Methods for Chemical Analysis 
of Water and Waste. EPA-6001114-79-020. Washington, D.C., 1983.
U.S. Environmental Protection Agency, Test Methods for Evaluating 
Solid Waste, Physical/Chemical Methods. SW-846. Third Edition (1986) 
as amended. Avail able from the Government Printing Office, by 
subscription, 955-001-00000-1, or from the National Technical 
Information Service, PB88-239-223. Washington, D.C., January, 1995.
U.S. Environmental Protection Agency, The New Toxicity 
Characteristic Rule: Information and Tips for Generators. Office of 
Solid Waste, 530/SW-90-028, April, 1990.
U.S. Environmental Protection Agency, ORD, and U.S. Department of 
Energy, Characterizing Heterogenous Wastes: Methods and 
Recommendations. EPA/600/R-92/033, February 1992.
U.S. Environmental Protection Agency, Office of Solid Waste and 
Emergency Response. ``Joint EPA/NRC Guidance on the Definition and 
Identification of Commercial Mixed Low-Level Radioactive and 
Hazardous Waste,'' Directive No. 9432-00-2, October 4, 1989.

Appendix D: List of Regulations

Environmental Protection Agency General Regulations for Hazardous 
Waste Management, 40 CFR Part 260.
Environmental Protection Agency Regulations for Identifying 
Hazardous Waste, 40 CFR Part 261.
Environmental Protection Agency Regulations for Hazardous Waste 
Generators, 40 CFR Part 262.
Environmental Protection Agency Standards for Owners and Operators 
of Hazardous Waste Treatment, Storage and Disposal Facilities, 40 
CFR Part 264.
Environmental Protection Agency Interim Status Standards for Owners 
and Operators of Hazardous Waste Facilities, 40 CFR Part 265.
Environmental Protection Agency Regulations on Land Disposal 
Restrictions, 40 CFR Part 268.
Nuclear Regulatory Commission Regulations--Standards for Protection 
Against Radiation, 10 CFR Part 20.
Nuclear Regulatory Commission Regulations--Rules of General 
Applicability to Domestic Licensing of Byproduct Material, 10 CFR 
Part 30.
Nuclear Regulatory Commission Regulations--Domestic Licensing of 
Source Material, 10 CFR Part 40.
Nuclear Regulatory Commission Regulations--Domestic Licensing of 
Production and Utilization Facilities, 10 CFR Part 50.
Nuclear Regulatory Commission Regulations--Licensing Requirements 
for Land Disposal of Radioactive Waste, 10 CFR Part 61.
Nuclear Regulatory Commission Regulations--Domestic Licensing of 
Special Nuclear Material, 10 CFR Part 70.

[FR Doc. 97-30528 Filed 11-19-97; 8:45 am]
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